2002 PLP 431 (MLD)

MUHAMMAD ALAM (MEMBER).

This order will dispose off an application dated 17-6-2000 submitted by Anwar Baig Ex Advocate Mingora Swat praying for setting aside an ex-parte order dated 18-12-1999 passed by this Tribunal in a complaint of Professional misconduct in Case T/22 of 1997. Respondent has also submitted an application for condonation of delay in filing the application for setting aside the said order.

2. Brief facts of the, case are that Muhammad Khan the complainants filed a complaint in the N.-W.F.P. Bar Council, alleging there in that the respondent Anwar Baig Advocate is practising as an Advocate at Mingora Swat, and has forged Bachelor of Arts Degree, on which he got admission in Karachi and secured his Law degree and after getting himself enrolled with the N.-W.F.P. Bar Council, Peshawar to practise the profession of law has joined legal profession in Mingora Swat. It was further alleged that the respondent taking undue advantage from his statuts as an Advocate started troubles for the inhabitants of the area and is committing gross professional misconduct.

3. The Disciplinary Committee of the N.-W.F.P. Bar Council initiated proceedings against the respondent and the respondent submitted written statement. The learned Members of the Committee after recording the evidence and taking into consideration the material on the record referred the matter to this Tribunal for final decision.

4. This Tribunal vide a detailed judgment dated 18-12-1999 found the respondent guilty of professional misconduct and ordered the immediate removal of the respondent from the profession with costs of Rs. Fifty thousand imposed upon the respondent and payable to the N.-W.F.P. Bar Council and hence the instant application.

5. Mr. M. Latif Khan learned counsel for the respondent contended that as is evident from the caption of the judgment, dated 18-12-1999, none on behalf of the respondent was present and thus, no chance of hearing was afforded to the respondent and thus, he was condemned unheard so it was submitted that in order to provide a chance of hearing to the respondent, the order, dated 18-12-1999 be set aside. The learned counsel further submitted that the law favors the decisions on merits and mere technicalities should not come in the way of substantial justice. Reliance was placed on Salima Begum and others v. Mst. Sardaran Bibi and others reported in PLD 1995 Supreme Court page 406, C-haudhry Ghulam Ghaus v. Saifullah and others reported in 2001 SCMR page 159, and Hadi Bukhsh v. Additional District Judge and others reported in 1998 CLC page 610.

6. Mr. Tariq Javed learned A.A.-G, appearing for the Government vehemently contended that the respondent had the knowledge of the proceedings as is evident from the order sheet dated 11-12-1999, which would show that Anwar Baig respondent was present when by a detailed order the case was adjourned to 18-12-1999, but on the adjourned date the respondent intentionally absented himself and thus, the case was y decided on merits on the material available on the record the learned A.A.-G. further contended that the respondent assailed the judgment of this Tribunal before the Disciplinary Committee of the Pakistan Bar Council by filing an appeal on 2-2-2000 as is evident from the grounds of appeal on page 20 of the file. So, at least on 2-2-2000 the respondent had the knowledge of the order, dated 18-12-1999 of this Tribunal and the present application having been filed on 17-6-2000 is hopelessly time-barred as no sufficient cause has been shown for the condonation of delay and the application merit dismissal.

7. We have given our anxious consideration to the facts and circumstances of the case and have perused the record carefully. Perusal of the record of the case reveals that on 11-12-1999 respondent Anwar Baig was present in person and. in his presence the date was adjourned to 18-12-1999. So the respondent was fully aware regarding the date of hearing and on the adjourned date he intentionally and deliberately got himself absented. So, the arguments that the respondent had no knowledge of the date of hearing is misconceived.

8. It is also born out from the record that the respondent Anwar Baig filed an appeal against the order, dated 18-12-1999 before the A Disciplinary Committee of the Pakistan Bar Council on 2-2-2000 vide memo. of appeal at page 20 of the file. Thus, at least he was in the know of the impugned order on the said date. The, application for setting aside ex parte order as alleged by the respondent and which was filed on 17-6-2000 was hopelessly time-barred for which no sufficient explanation or probable. cause for his non-appearance has been given. So much so that the appeal was withdrawn by the respondent on 10-6-2000 and the impugned order, dated 18-12-1999 merged into the order of the Disciplinary Committee of the Pakistan Bar Council and hence the respondent is not entitled to the condonation of delay. The case law cited by the learned counsel for the respondent rest on different premises and are not applicable to the facts of the present case.

9. As observed earlier the respondent had the full knowledge of the proceedings which were disposed of by a well-reasoned judgment on merits taking into consideration the unimpeachable documentary evidence on record. Once it is proved that the respondent had the, knowledge of the proceedings then the due service or otherwise loses its importance. Reliance can be placed on the case of Zafar-ul-Haq v. Waris Iqbal and others reported in PLD 1979 Lahore page 793 (B) anti M. Usman and others v, Ghulam Qasim Khan and others 1982 CLC 881.

10. This being the position there is no merit in the present application and the same is dismissed with no order as to costs. H.B.T./408/P Application dismissed.