/ORDER ' JUSTICE MUHAMMAD QAIM JAN KHAN (CHAIRMAN).---By this single judgment, we propose to dispose off the appeals cited above as both these appeals arise out of a common order of the Disciplinary Committee of the N.-W.F.P. Bar Council Peshawar.
2. Facts of the case are that Rasool Khan Khattak and Kazim Ali Bungash Advocates Kohat filed a joint complaint against Mr. Hamid Khan Afridi Advocate Kohat, alleging therein that the respondent is associated with a gang who is involved in smuggling, making forged National Identity Cards and also runs a Bargain Centre under the name and style of Kohat Bargain Centre with Ismail, Zahid Ullah and Ghulfam further allegations in the complaint are that the respondent also indulges to get money from both of the parties involved in litigation and is involved in adultration of petrol and his conduct is un-becoming of a counsel. So being habitually and continuously involved in misconduct, has violated the canons of conduct prescribed for the Advocates by the legal practitioner and Bar Councils Act, 1973 and rules framed there under; so strict legal action against the respondent was prayed for.
3. The Disciplinary Committee of the N.-W.F.P. Bar Council initiated the proceedings against the respondent Mr. Hamid Khan Afridi. However before the filing of the written statement Kazim Ail Bungash complainant recorded his statement on 21-4-2001 and Rasool Khan complainant submitted an application on 17-7-2001 for withdrawal of the complaint with a request that the respondent be exonerated of the charges.
4. The learned Members of the Disciplinary Committee Mr. Adam Khan and Mr. Fida Gul allowed the withdrawal with a cost of Rs.5,000 imposed on each of the complainant vide impugned order and hence these appeals.
5. We have heard the appellants and respondent Hamid Khan Afridi as well as the learned Additional Advocate-General and with their assistance have gone through the record of the case.
6. It was submitted by the appellants that the order of imposition of costs/fine is illegal, there is no provision in N.-W.F.P. Bar Council for the imposition of fine and the impugned order is without jurisdiction and liable to be set aside.
7. Respondent No.5 Mr. Hamid Khan Afridi and the learned Additional Advocate-General supported the impugned order by submitting that the imposition of costs or fine was discretionary with the learned members of the Disciplinary Committee and the discretion has been properly exercised and the same does not merit interference.
8. We have given our anxious consideration to the facts and circumstances of the case, the legal position, as existing in the Scheme of Disciplinary action embodied in section 44 of the Legal Practitioner and Bar Councils Act, 1973 and as well as the rules framed there under is, that when a Tribunal or Disciplinary Committee of the N.-W.F.P. Bar Council comes to the conclusion that the complaint filed by the complainant is false, frivolous or vexatious, can impose a cost not exceeding Rs.Five hundred, on the complainant, while deciding the complaint. However, this limitation is not restricted to Rs.Five hundred as costs of the proceedings imposed by the accused/respondent in a complaint of Professional misconduct so the order on the face of it is not inconfirmity with the relevant provisions of law.
9. But the matter does not end here, the question is that whether the Disciplinary Committee was competent to allow the withdrawal of the complaint on the basis of a private settlement or compromise there is no provision in any law or statute book governing the misconduct cases, that the misconduct once alleged against a person can be washed away on the basis of compromise so this is settled principle of law, that cases of misconduct have to reach its logical end either in punishing the wrong doer or his exoneration, if found, innocent.
10. Question of withdrawal of the professional misconduct came for consideration before the Punjab Bar Council Tribunal in a case titled Muhammad Amir v. M. Asghar Kokar Advocate reported in 1992 CLC page 1556 where in his Lordship Mr. Justice Irshad Hassan Khan the learned Chairman of the Tribunal, as he than was, held that even if the parties enter into a compromise and the respondent accused undertakes to return the money, will not wash away the stigma of misconduct committed by him. Furthermore, even, the withdrawal of a complaint will not exonerate the respondent, because in a case of misconduct no withdrawal can exonerate the respondent.
However, the same can be taken as mitigating circumstances while determining the quantum of punishment. The case of Asghar Kokar referred to above has been consistently followed in Irshad Khan v. Gohar Rehman Khattak Advocate reported in 2000 MLD Page 1264 Wajid Ali v. Zafar Khalil Advocate reported in 2000 MLD Page 1275 and Ali Rehman v. Zaheeruddin Baber Advocate reported in MLD 2001 page 895. So the application for withdrawal is rejected.
11. In view of the facts and circumstances of the case, narrated above, we accept both the appeals set aside the impugned order and remand the case back to the learned Members of the Disciplinary Committee of the N.-W.F.P. Bar Council Peshawar to decide the same on merits. There's, however, no order as to costs. Parties are directed to appear there on.