P L D 1961 (W (PLP)

These are five petitions by 14 persons against the order of the District Magistrate, Peshawar, whereby they have been declared as "touts", under section 36 of the Legal Practitioners Act (hereinafter referred to as the Act). As all these petitions involve common questions of law and fact, they are being disposed of by one order.

2. The impugned order of the. District Magistrate is mainly based on the presumption of "general repute" arising out of a resolution passed by the District Bar Association at a meeting held on 6th, September 1960. It is conceded that if this pre sumption of "general repute" is eliminated from consideration, there will be left no evidence to justify the order. The Explanation to subsection (1) of section 36 of the Act says :- "The passing of a resolution declaring any person to be or not to be a tout, by a majority of the members present at a meeting, specially convened for the purpose, of an association of persons entitled to, practise as legal practitioners in any Court or revenue-office, shall be evidence of the general repute of such person for the purposes of this subsection". It will have been noticed that, in the first place, the meeting referred to in the Explanation must be a "special meeting" as distinct from a general meeting, and it must be for the purpose of considering the question of "toutism". Secondly, it is clear by implication from the language of the Explanation that the Members of the Association must have a notice of the names of the persons whose conduct is to be adjudged. This view is supported by a decision of the Lahore High Court in Mian Muhammad Hussain and others v. The Bar Association, Gujrat (P L D 1951 Lah. 38). His Lordship Muhammad Sharif, J. was pleased to observe :- "The words `any person' appearing first in the explanation to section 36, Legal Practitioners Act, meats any named person or `any specified person'. Discussing the effect of the omission of the names from the notice, his lordship remarked :- "Where the Members of the Association, before coming to the meeting, were not aware of the names or descriptions of the persons who were to be considered for the purpose of being declared touts at the special meeting the proceedings of the Bar Association suffered from a very serious defect and the presumption, which could only arise where the conditions laid down in the Explanation to section 36 were strictly followed, would not arise."

3. In another case Abdul Aziz v. The Karachi Bar Association (P L D 1955 Sind 3), it was held that the meeting should be specifically convened for the purpose of considering whether persons- specified in the notice were to be declared touts or not. The learned Assistant Advocate-General had to concede half heartedly that the meeting should be a special meeting convened for the purpose of considering the question whether a certain person was or was not a tout. He, however, contended that the mere fact that the certain' other matters were also considered apt the meeting along with the question of toutism could not affect the character of the meeting. The argument is self-contradictory. A "special meeting" is a meeting convened for the purpose of considering a special matter, whereas a "general meeting" is not restricted to any special or particular subject.

4. Mr: Khan Bahadur Khan, Secretary of the Bar Association, has admitted in unequivocal terms that the resolution declaring the petitioners as touts was passed in a "general meeting". It is also evident from his statement and other material on the. record that the names of the suspected touts were not t communicated to the Members of the Bar Association when notice of the meeting was issued to them. The names were disclosed for the first time, when the proceedings actually started. It is thus clear that the resolution of the Bar Association suffered from two defects, namely, (1) the Members of the Association were unaware of the names of the suspected touts whose conduct they had to consider and (2) the matter was discussed in a "general meeting" and not in a "special meeting" as required by the Explanation. That being the case, the presumption of "general repute" disappears and there is left no other material to warrant the impugned order.

5. Since the petitions succeed on technical ground, it is unnecessary to go into the merits of individual eases. In the result, all the five petitions are accepted, and the order of the District Magistrate, dated the 4th January 1961, is set aside. This order, however, does not preclude the Bar Association from reconsidering the cases of the petitioners in future in accordance with law. A.H. Petitions accepted.