2002 PLP 1907 (CLC)

MUHAMMAD ALAM KHAN (MEMBER).‑‑‑ This order will dispose of an application filed by Muhammad Jamil, Advocate/ respondent praying therein for setting aside the ex parte order, dated 15‑9‑2001 of the Disciplinary Committee, N.‑W.F.P. Bar Council, Peshawar.

2. Brief facts of the instant proceedings are, that Gulzada- complainant filed a complaint against Jamil Khan, Advocate, Peshawar, alleging therein, that the complainant engaged the respondent as counsel to conduct the case initiated by the complainant under the provision of section 145, Cr.P.C. pending in the Court of Mr. Ajmal Khan, Magistrate, Peshawar. The complainant paid the professional fee to the respondent as settled between the parties. However, during those proceedings an assurance was given to the complainant by the respondent that the disputed land will be freed from attachment order and the standing crops will be managed to be confiscated.

3. It is further alleged that the respondent demanded Rs.60,000 to be paid to various agencies including the Presiding Officer of the Court for soliciting a favourable order in favour of the complainant. It is stated, however, that the proceedings culminated in an order against the complainant and on this, when the respondent was asked regarding the payment of Rs.60,000 allegedly paid to the learned Presiding Officer of the Court, the respondent stated that the same has been paid to the Magistrate. On enquiry from the Magistrate, the Magistrate flately refused, so the complainant filed the instant complaint on 28‑7‑2001, praying therein, that as the conduct of the respondent is unbecoming of the counsel and moreso, the same is in violation of the canons of conduct prescribed for the Advocates by the Legal Practitioners and Bar Councils Act, 1973 and Rules framed thereunder. So, legal action under the law was prayed for against the respondent.

4. The Disciplinary Committee of the N.‑W.F.P. Bar Council, Peshawar initiated the proceedings and when the case came for hearing on 25‑8‑2001 the learned Members of the Disciplinary Committee passed the following order:‑‑ "Complainant present. Respondent absent in spite of service, through his Clerk/Munshi, placed ex parte. To come up ‑for evidence of the complainant on 8‑9‑2001."

5. The learned Members of the Disciplinary Committee recorded the ex parte evidence of the complainant and considering the data available on the record referred the case to the Tribunal vide Reference, dated 15‑9‑2001 for final adjudication.

6. Notices were issued to the parties and the respondent submitted an application for setting aside the ex parte proceedings. Tire complainant submitted the replication, in which, the allegations contained in the application were hotly contested.

7. Arguments have been heard and record of the case perused. Perusal of the record would show that vide impugned order, dated 25‑8‑2001 only ex parte proceedings has been initiated by the learned Members of the Disciplinary Committee, which proceeding so far, has not culminated into a final order. Alongwith the application, the respondent has annexed an affidavit of Mgr. Jan Muhammad son of Fazli Karim, Clerk of the respondent testifying therein, that no service has been effected on him.

8. The law is clear on the subject that when a person is proceeded against ex parse, he can join the proceedings at any stage of the case. Reliance in this behalf is placed on Azizullah and others v. Arshad Hussain and others reported in PLD 1975 Lah. 879.

9. There is no evidence on the record that either the respondent or his Clerk was served for the date fixed by the learned Members of the Disciplinary Committee, Peshawar. The law also insist decision on merits and the well‑known maxim of law, "that nobody should be condemned unheard", which is so well‑entrenched in our legal system, should be saved from being violated. This being the position, we accept the application of the respondent and set aside the order of the learned Members of Disciplinary Committee, dated 25‑8‑2001 on payment of cost of Rs.3,000 payable to the complainant and direct the concerned members to proceed with the case in accordance with law. Parties are directed to appear before the Members of the Disciplinary Committee, N.‑W.F.P. Bar Council, Peshawar on 20‑7‑2002. Q.M.H./M.A.K./548/P Application allowed.