MUHAMMAD ALAM KHAN (MEMBER).---This order will dispose of an application submitted by Salim Akbar respondent dated 30-3-2002 with a prayer to set aside the ex parte proceedings (inadvertently described as ex parte evidence), initiated by the Disciplinary Committee N.W.F.P. Bar Council Peshawar against him. Complainant has submitted the replication in which the allegations contained in the application were hotly contested.
2. Brief facts of the case are that Feroz Khail complainant filed a complaint in the N.-W.F.P. Bar Council against Salim Akbar respondent, alleging therein. that the complainant had ecgaged the respondent as his counsel on payment of professional fee of Rs,15,000 in order to conduct, the case of Gulab Khan accused, pending before Political Agent Khyber Agency. Further averments in the complaint are, that the respondent demanded some extra amount for onward payment to the prosecution counsel and Rehmat Gul Clerk. It is alleged, that for that purpose a sum of Rs,96,000 in all, was paid to the respondent. In spite of all this, the prosecution ended against Gulab Khan accused and he was convicted and sentenced 14 (fourteen) years rigorous imprisonment.
3. On demand by the complainant, the respondent flately refused to return the said money, although the respondent had clearly. entered into a bargain with the complainant with money back guarantee. So, it was prayed by the complainant that legal action under the provision of Legal Practitioner and Bar Council Act, 1973 and the Rules made thereon be taken against the respondent.
4. On initiation of the proceedings by the N.-W.F.P. Bar Council, the respondent appeared and submitted the written statement refuting all the allegations contained against him. It was, however, on 15-9-2001 that the respondent was absent and the learned Members of the Disciplinary Committee, Peshawar recorded ex pane evidence and taking into consideration the data available on the record, referred the case to this Tribunal for final adjudication vide reference dated 15-9- 2001 and hence the present application by the respondent for setting aside the ex parte proceedings.
5. We have heard the complainant as well as the learned counsel for the respondent and Additional Advocate-General for the Government of N.-W.F.P. and have perused the record of the case.
6. Perusal of the record would show, that only ex pane proceedings has been initiated against the respondent which has not so far culminated into a final order and the law is clear on the point, that in ex parte proceedings die respondent can appear and join the proceedings on the adjourned date. Reliance in this respect is placed on Aziz Ullah and others v. Arshad Hussain and others reported in PLD 1975 Lah. p.879 and the ex parte proceedings are liable to be set aside.
7. The conduct of the respondent was also not above board as he always adopted a. fabion attitude in the proceedings as is evidence from the order sheets dated 7-10-2000 and 7-4-2001 and on one occasion costs of Rs,500 were also imposed by the learned Members of the Disciplinary Committee on the respondent but as the law insist on decision on merits and the well-known maxim of law that "nobody should be condemned unheard". well-entrenched in our legal system, should be saved from being violated, the application merit acceptance.
8. In view of the facts and circumstances of the case narrated above, we accept the application of the respondent dated 30-3-2002 and set aside the ex parte proceedings initiated by the Disciplinary Committee of N.-W.F.P. Bar Council Peshawar against the respondent vide order dated 15-9-2001 on payment of costs of Rupees two thousand payable to the complainant by the respondent on the date when they appear before the Disciplinary Committee, with the direction to dispose off the case on merits as expeditiously as possible. Parties are directed to appear there on 18-5-2002.