' Mr. Habib-ul-Wahab Al-Khairi, an Advocate of this Court has filed this petition under Article 199 of Lie Constitution of Islamic Republic of Pakistan, 1973 calling in question the order passed by the Executive Committee of the Punjab Bar Council on 14-11-1996.
2. The background in which this petition arises is that on 28-2-1996 the petitioner made a complaint to the President of the Rawalpindi Bar Association that he was assaulted in the Bar premises by respondents Nos.1 and 2 who were, therefore, guilty of misconduct. Pursuant to this application a complaint appears to have been forwarded by Mr. Abdul Rashid, Vice-President of the Rawalpindi High Court Bar Association to the Disciplinary Committee of the Punjab Bar Council.
However, during the pendency of those proceedings the petitioner himself filed a complaint against respondents Nos.2 to 5 on 8-9-1996 which was placed before the Disciplinary Committee which ordered issuance of notices to the respondents. In the meanwhile, respondents Nos.3 and 4 approached the Executive Committee of the Punjab Bar Council with the prayer that the complaint filed by the petitioner be withdrawn from the Disciplinary Committee and be decided by the Executive Committee itself. That application was allowed ex parte by the Executive Committee of the Punjab Bar Council on 14-11-1996 which withdrew the complaint from the Disciplinary Committee and proceeded to hold that from the allegations made in the complaint itself no case for professional or any other misconduct was made out against the respondents. This order of the Executive Committee has been challenged by the petitioner in this petition.
3. It may be mentioned at this stage that on 21-10-1996 the Vice-Chairman of the Punjab Bar Council took the view that the Executive Committee had no jurisdiction to interfere in the proceedings of the Disciplinary Committee. He consequently directed that the proceedings before the Disciplinary Committee should continue. This decision of the Vice Chairman of the Punjab Bar Council has been assailed by the respondents by filing a suit which is stated to be pending.
4. Mr. Habib-ul-Wahab Al-Khairi, Advocate-petitioner, who has appeared in person, has contended that under the Legal Practitioners and Bar Councils Act, 1973, a complaint for taking disciplinary action against an Advocate of the High Court can only be entertained and decided by the Disciplinary Committee of the Punjab Bar Council and not by any other Committee of the Council including the Executive Committee.
5. Respondents Nos.3 and 4, on the other hand, have drawn the attention of this Court to rule 6.2 of the Punjab Legal Practitioners and Bar Council Rules, 1974 which provides that in the first instance the application for taking disciplinary proceedings is to be scrutinized by the Executive Committee which can summarily reject it if a case of professional misconduct is not made out. It has also been argued by the learned counsel that respondent No,5 at the relevant time was not an Advocate but was holding the office of Judge of this Court and, therefore, the Disciplinary Committee had no jurisdiction to proceed against him.
6. Having considered the arguments of the learned counsel for the parties and perused the record it becomes obvious that the impugned order of the Executive Committee is wholly without jurisdiction. The subject of conduct of Advocates and disciplinary proceedings against them have been dealt with in Chapter VII of the Legal Practitioners and Bar Councils Act, 1973, section 41 of which not only provides punishment but also lays down the procedure for dealing with complaints against an Advocate for misconduct. Subsection (4) of section 41 clearly shows that it is the Disciplinary Committee of the Bar Council which has the powers to summarily reject the complaint after making such inquiry and giving parties such opportunity of being heard as it may consider necessary or to refer the same to a Tribunal constituted under section 45 of the Act. This power does not vest is any other Authority or Committee. Reference to section 10 of the Legal Practitioners and Bar Councils Act, 1973 would show that both the Executive Committee and Disciplinary Committee are separate entities having different functions under the Act which do not over-lap. Hi matters of discipline it is the exclusive domain of the Disciplinary Committee in which the Executive Committee cannot interfere. It needs to be stated here that though the Executive Committee is the repository of the executive powers vesting in the Bar Council but it cannot claim any ascendency over the Disciplinary Committee nor does it enjoy any appellate power over the decision of the latter.
7. A perusal of the impugned order of the Executive Committee shows that it acted under the impression that the case was being heard by the Disciplinary Committee on account of its entrustment made by the Executive Committee, which was wholly misplaced. There is no warrant in law for such an assumption. The Disciplinary Committee heard the case in exercise of the power vested in it by section 41 of the Act and not as a delegatee of the executive Committee. It is interesting that the Members of the Executive Committee themselves noted that the case had been placed before the Disciplinary Committee by the Secretary of the Bar Council and not under any order passed by the Executive Committee but by some strange logic came to the conclusion that the Secretary shall be deemed to have acted on behalf of the Executive Committee. As already stated, section 41 of the Act makes it quite obvious that once a complaint is received by the Bar Council, the office of the Bar Council has to place it before the Disciplinary Committee in compliance with the statutory provisions and not on account of any delegation by the Executive Committee. The question of, therefore, withdrawing the case from the Disciplinary Committee by the Executive Committee did not arise. Similarly as the Disciplinary Committee alone has jurisdiction to decide whether the application was to be summarily rejected or not such power could not have been exercised by the Executive Committee.
8. Reliance of respondents on rule 6.2 of the Punjab Legal Practitioners & Bar Councils Rules, 1974 is wholly misplaced as there is nothing contained in the rule which empowers the Executive Committee to control the proceedings of the Disciplinary Committee of the Bar Council.
9. So far as rule 6. 2 is concerned, it is ex facie inconsistent with section 41 of the Act and, therefore, must yield to it. Under section 41 of the Act, the power to entertain a complaint and summarily reject it vests in the Disciplinary Committee and the Bar Council by framing the Rules could not confer such a power in any other Committee like Executive Committee. It was clearly not proper I r the rules making Authority to have set up a parallel body to empower any usher Authority to decide whether the matter should or should not be heard by the Disciplinary Committee when section 41 of the Act itself gives that power to the Disciplinary Committee alone. Be that as it may, even if rule 6.2 is held to be valid yet it is evident on a reading of this provision the power to summarily reject could only be exercised by the Executive Committee before the case had been made over to the Disciplinary Committee and not at any subsequent stage. In the present case the Disciplinary Committee after .Taking cognizance of the matter had issued notices to the respondents and was in process of hearing the case when the impugned order was passed by the Executive Committee which could not be done even under rule 6.2. It may be stated that the learned counsel appearing on behalf of Punjab Bar Council also did not support the impugned order of the Executive Committee.
10. As regards the contention that respondent No,5 could not have been impleaded as party to the proceedings before the Disciplinary Committee, this objection may be raised before the Committee which shall, of course, be under an obligation to attend to it. In view of above, this petition is allowed, the impugned order of the Executive Committee of the Bar Council dated 14-11- 1996 is declared to be without any lawful authority and of no legal effect with the result that the complaint filed by the petitioner shall be treated to be pending before the Disciplinary Committee of the Punjab Bar Council and shall be proceeded against afresh. No order as to costs.