' FAKHRUDDIN G. EBRAHIM, J.-The facts giving rise to this petition are that on 10-4-1972, the petitioner lodged a complaint of professional misconduct against the respondent No, 3 Doctor with the Medical Council, a statutory body constituted under section 3 of the Medical and Dental Council Ordinance, 1962. On 12th July, 1972, the respondent doctor was informed by the Secretary of the Council that an Enquiry Committee had been constituted by Rear Admiral A. R. Ansari, Director General, Health and President Pakistan Medical Council, to enquire into the aforesaid complaint and she was directed to appear before the Committee on 3rd August, 1972, alongwith necessary documents and written comments on the said complaint in her defence. The Enquiry Committee met on 3-8-1972 and again on 19th September, 1972, when parties and their evidence was examined. The Committee submitted its report which together with legal opinion obtained thereon came up for consideration before the Council at its meeting held on 19th and 20th December, 1972.
The Council decided to cancel the registration certificate of respondent No, 3 which decision was communicated to her by letter dated 26-1-1973. The respondent No, 3 made a representation to the Secretary, Ministry of Health complaining that her registration had been wrongly cancelled and requesting that the Director General, Health who was ex officio President of Pakistan Medical Council may be advised to rectify the wrong done to her. According to the counter-affidavit filed on behalf of the Government of Pakistan, the Secretary, Ministry of Health marked this representation to the Director General of Health who in turn marked it to the Council and the Council instead of sending any comments to the Secretary, took the decision to keep in abeyance the cancellation of registration of respondent No, 3 and decided to give to the respondent No, 3 a chance to be heard in person. Vide copy of a letter dated 22nd February, 1973, the Council communicated to the petitioner this decision. In so far as the respondent No, 3 doctor is concerned she was on 14-7-1973, issued a notice in Form MC-10, under Regulation 31 of Pakistan Registration of Medical and Dental Practitioners Regulation, 1966, in which notice it was stated that information and evidence had been led before the Council by which the petitioner herein had levelled charges against her, copy enclosed, and that in relation thereto, the respondent No, 3 was guilty of infamous conduct in professional respect. The respondent doctor was, therefore, directed to appear before the meeting of the Council on 10th August, 1973, when the Council will consider the charges against her and decide whether or not they should direct her name to be removed from the Register in pursuance of section 31 of the Medical Council Ordinance, 1962. A copy of this notice was forwarded to the petitioner and he was advised to appear before the Council on 10th August, 1973. Both the petitioner and the respondent No, 3 were each supplied a copy of the said Regulations. The petitioner by his letter dated 4th August, 1973, requested that the three witnesses named therein be called by the Council to give evidence on his behalf at the Council's meeting on 10th August, 1973. The Council met on 10th and 11th August, 1973, when according to the impugned order, they re-examined the whole case, went through the report of the Disciplinary Committee in detail, interviewed the parties and unanimously decided that there was no evidence of any professional misconduct or negligence on the part of respondent No, 3 and, therefore, decided not to take any action in the matter and that the registration certificate of respondent No, 3 will stand restored. This decision was communicated to the petitioner vide letter dated 4th September, 1973, and this is the impugned order in this petition.
2. Before coming to the merits of the case we may refer to the preliminary objection on behalf of respondents Nos. 2 and 3 that this petition is not maintainable in view of the fact that the petitioner had earlier filed a Constitutional Petition No, 113 of 1974, which was unconditionally withdrawn at the Katcha Peshi hearing and the argument, therefore, was that the second petition on the same cause of action was not maintainable in view of the provisions contained in Order XXIII, rule 1, C. P.
C. In reply to this objection, Mr. Riazul Hassan, the learned counsel for the petitioner invited or attention to a Supreme Court decision reported in PLD 1973 SC 406. In this case the petitioner had filed one petition after the other on the same cause of action and before the second petition came up for hearing he had unconditionally withdrawn the earlier petition and the question before the Court was whether in such a case provisions of Order XXIII, rule 1, C. P. C. Would apply. The Supreme Court held as follows:- "This withdrawal was made at the time when Writ Petition No, 638 of 1962, was pending. No material has been placed before us to indicate why Writ Petition 416 of 1962, was withdrawn. In the case of Hirasingh v. Puran and others AIR 1930 Lah. 599 it was held that the provisions of Order XXIII, rule 1 of the Code of Civil Procedure did not apply where the second suit was already pending on the date of the withdrawal of the first suit. With this view the High Court in the present case agreed. We agree with the view of the High Court. We do not think that in the facts and circumstances of case Writ Petition No, 638 of 1962, was not maintainable. This view finds support from the decision in Daryao v. State of U. P. A 1 R 1961 SC 1457. In the case under report six writ petitions under Article 226 of the Indian Constitution had been moved and were rejected by the High Court. Thereupon the petitioners filed six writ petitions "under Article 32 of the Constitution before the Supreme Court of India. It was argued on behalf of the respondents that the dismissal of a writ petition filed by a party for obtaining an appropriate writ creates bar of res judicata against similar petition filed in the Supreme Court under Article 32 of the Indian Constitution on the same and similar facts and praying for the same and the similar writ. It was held, inter alia, that if the petition before the High Court was dismissed as withdrawn it could not be a bar to a subsequent petition under Article 32 of the Constitution because in such a case there had been no decision on the merits by the Court.
Although this observation upon the facts of the case is confined only to the question of res judicata, it applied as a general proposition to a previous writ petition which was withdrawn at the time second writ petition was pending.
' We may add that the right given under Article 98 of the 1962. Constitution was a Constitutional right and unless there was an express bar to the contrary, Writ Petition No, 638 of 1962, could proceed legally in spite of the fact that Writ Petition No, 416 of 1962, had been withdrawn before it had reached the stage of hearing on merits. In or opinion Writ Petition No, 638 of 1962, did not fall within the mischief of the principle that a person should not be vexed twice for the same matter."
In the present case the previous petition filed by the petitioner was as aforesaid withdrawn at the Katcha Peshi and this petition therefore, does not fall within the mischief of the principle that person should not be vexed twice for the same matter.
3. Mr. Murtaza Hussain, the learned counsel for respondent No, 2 invited or attention to an earlier Supreme Court decision reported in PLD 1970 SC I. In this case the question before the Supreme Court was whether a judgment in a Constitutional Petition was open to review under Order XLVII, rule 1, C. P. C. Which was answered affirmatively on the ground that proceedings under Article 98 of the Constitution concerning a civil matter being a civil proceeding relating to the High Court's original jurisdiction, and section 114, of the Code conferring power of review not having been made inapplicable to the High Court in the exercise of its original civil jurisdiction, the power to review an order made by the High Court in its writ jurisdiction will be available to it under section 114 if that section is otherwise applicable. On the basis of this judgment it was sought to be argued that Code of Civil Procedure will apply to the present writ a3 well for it is also of a civil nature and, therefore, a second petition after the unconditional withdrawal of the first would not lie under Order XXIII, rule 1, C. P. C. There is little doubt that if we were to hold that Order XXIII, rule 1, C. P. C. Is attracted then this petition would not be maintainable. However, the question of application of Order XXIII, rule 1, C. P. C.
Was specifically in issue in the aforesaid later decision of the Supreme Court and the answer was in the negative. We are bound, therefore, to follow this decision and hold in the present case, notwithstanding the unconditional withdrawal of the earlier petition, this petition is maintainable, for it does not fall within the mischief of the principle that a person should not be vexed twice for the same matter.
4. Before coming to the facts of the present case we may refer to some of the relevant Regulations and these are Regulation 28, which provides for the lodging of complaint by a private complainant.
Regulation 10 provides that on receipt of such complaint the Registrar shall submit to the President of the Council an abstract and all other documents bearing on the case together with the complaint and if the President deems fit he will instruct the Registrar to ask the practitioner to submit his explanation within such time as may be fixed by the President. The explanation so submitted under this Regulation together with other documents are to be referred for consideration of a Disciplinary Committee appointed by the Council. Such Committee shall have power to cause further investigations to be made and further evidence to be taken and if necessary obtain further legal or other advice. Sub-Regulation (2) of Regulation 30 provides that the Committee on completion of its investigations shall submit its report to the Council and if the Council considers that the case is ore in which an enquiry ought to be held by the Council, the President shall direct the Registrar to take steps for the institution of an enquiry and for having the case heard and determined by the Council. Under Regulation 31, if the Council decides that an enquiry ought to be held by it, it will direct the Registrar to issue notice to the practitioner concerned which notice is to be in form MC-10, which is provided in Regulation 32. The procedure to be adopted, by the Council at the enquiry is contained in Regulation 37 which reads as follows :- "37. Where a complainant appears personally or through a legal representative, the order of procedure shall be as follows:
(1) The Registrar will read to the Council the notice of the enquiry addressed to the practitioner.
(2) The complainant will then be invited to state his case himself or through his legal representative, and to produce his evidence in support of it. At the conclusion of the complainant's evidence, his case will be closed.
(3) The practitioner will then be invited to state his case himself or through his legal representative, and to produce his evidence in support of it. He may address the Council only once either before or at the conclusion of his evidence.
(4) At the conclusion of the practitioner's case, the Council will if the practitioner has produced evidence, hear the complainant in reply on the case generally, but will hear no further evidence, except in any special case in which the Council may think it right to receive such further evidence. If the practitioner produces no evidence, the complainant will both be heard in reply, except by special leave of the Council.
(5) Where a witness is produced by any party before the Council, he will first be examined by the party producing him, "and then cross-examined by the adverse party, and then le-examined by the party producing him. The Council may refuse to admit in evidence any declaration where the declarant is not present or declines to submit to cross-examination.
(6) The President, and the members of the Council through the President may put questions to any witness."
5. In the present case the petitioner's complaint is that at the Council's meeting on 10th and 11th August, 1973, the petitioner was called and only cursory enquiries were made by the Council and in spite of his request no witnesses were examined by the Council. He complains that the Council did not examine the witnesses who were present alongwith him to give evidence and that the respondent No, 3 was not examined in his presence and he was denied opportunity to cross- examine her. The Council in its reply statement filed in this Court has submitted that the Council was not, bound to record any statement either of the parties and their witnesses and they decided the .Case on the basis of available record including the proceeding before the Enquiry Committee which had interviewed the witnesses. The aforesaid perusal of the Regulations make it clear that following the notice to the respondent No, 3 under Regulation 31, the Council was bound to hold an enquiry and under Regulation 37 invite the complainant to state his case and to produce his evidence in support of it. In the present case the Council appears to have decided the case by reference to a report of the Enquiry Committee on the basis of which it had earlier decided and proceeded to de-register the respondent No,
3. It is not clear how the previous inquiry came to held by an Enquiry Committee. In so far as the Regulations are concerned a Disciplinary Committee held, only a preliminary inquiry and if its report is accepted, the Council proceeds to give formal notice to the person complained against in Form MC-10 and hold inquiry according to the procedure laid down in Regulation 37. The Council, therefore, acted in disregard of the Regulations, in arriving at its finding that no case had been made out against the respondent No, 3.
6. Mr, Murtaza Hussain the learned counsel stated that the proceedings before the Council were not for cancellation of the registration of respondent No, 3 but for restoration by the earlier removal of her name following her representation. The proceedings before the Council belies this assertion inasmuch fresh proceedings were held by the Council under Regulation 32 to enquire into the misconduct alleged against the respondent No,
3. The proceedings before the Tribunal were not for restoration of the removal of the name of the respondent No, 3 under Regulation 41.
7. The result, therefore, is that the decision of the Council communicated to the respondent No, 3 vide its letter dated 4th September, 1973, cannot be sustained in law by reasons of the failure of the Council to act in terms of Regulations particularly Regulation 37 and the same is held to be without lawful authority and of no effect and the Council will proceed to dispose of the petitioner's complaint afresh in accordance with its Regulations. In the circumstances there will be no order as to costs.