/ORDER ' MUHAMMAD ALAM KHAN (MEMBER).--- On 23-10-1999 Zarqa Shaheed complainant filed a complaint against the respondent alleging therein that she being a Pardahnasheen lady, had purchased Quarter No,A-2 in the National Bank Colony, Peshawar vide registered deed, dated 25- 10-1994 for a sale consideration of Rs, seven hundred thousand, for self-occupation. It is further averred in the complaint that prior to the purchase Mr. Khurshid Ahmad Khan respondent (Ex- Assistant Advocate-General) was occupying the same as tenant on monthly rent of Rs,1,500. The petitioner issued a notice to the respondent for the vacation of the house as the same was required by the complainant for her personal need but to no avail,' and hence, on 4-1-1995 she filed an ejectment petition under the West Pakistan Rent Restriction Ordinance, 1959 which is pending in the Court of Mr. Ihtishal Ali, Civil Judge/Rent Controller, Peshawar, in which the respondent was being represented by Abdul Rauf Rohaila and Muazzam Butt, Advocates, Peshawar.
2. Further averments of the complaint are that since 5 years has elapsed, but no rent has been paid to the complainant. Besides also, the respondent filed a pre-emption suit in the name of Jawaid Ali Shah in order to prolong the proceedings in the rent case and that suit is being pursued.
By Abdul Rauf Rohaila and Tariq Javed, Advocates, Peshawar. It is alleged that the respondent is resorting to delaying tactics and since the institution of the rent petition till the filing of the complaint, as is evident from the attested copies of the order sheets of the learned Rent ,Controller, not a single witness has been examined and the case is being adjourned as the respondent is a local Advocate and is exerting his influence by getting long adjournments.
3. The Disciplinary Committee of the N.-W.F.P. Bar Council initiated proceedings against the respondent and the respondent tiled a detailed written statement dated 20-11-1999 controverting the allegations contained in the complaint and also averred that the respondent has a right of defence in the rent proceedings, of which he cannot be deprived. On the same day the respondent submitted an application before the Member of the Disciplinary Committee that this complaint be dismissed as the same is incompetent.
4. Perusal of the record shows that as Abdur Rauf Rohaila, Advocate was an Advocate of the Supreme Court of Pakistan, so the matter was placed before the Disciplinary Committee of the Pakistan Bar Council against Abdur Rauf Rohaila, Advocate and vide Complaint No,163 of 1997, decided on 7-11-1998 the Chairman of the Disciplinary Committee of Pakistan Bar Council (late)
Justice Munawar Ahmad Mirza, on the representation of Mr. Abdur Rauf Rohaila, Advocate held that as the learned Advocate has withdrawn his power of attorney to appear in the rent case and as the only allegation against him was for causing delay in the disposal of rent matter by obtaining frequent adjournments so the proceedings against him were dropped.
5. On return of the file, the learned Members of the Disciplinary Committee of the N.-W.F.P. Bar Council after considering the data available on record, came to the conclusion that the complaint was not maintainable, dismissed the same vide the impugned order, dated 6-1-2000 and hence the present appeal by Mst. Zarqa Shaheen appellant.
6. We have heard Muhammad Ishaq, General Attorney for the appellant, the respondent who is personally present and S. Shaukat Hayat, Assistant Advocate-General and have perused the record of the case carefully.
7. We would refrain to express our opinion on merits of the case, so that the same may not prejudice the case of either party and confine ourselves to the legality or otherwise of the impugned order as envisaged by various provisions of Legal Practitioners and Bar Councils Act, 1973.
8. Perusal of the record would show that the learned Members of the Disciplinary Committee has passed the impugned order on the application of the respondent even without calling for the replication of the appellant. Furthermore, the respondent had submitted a detailed written statement controverting the allegations contained in the complaint which could only be resolved by producing evidence pro and contra. The law as contained in section 41, subsection (4) of the Legal Practitioners and Bar Councils Act, 1973 is very clear that on receipt of a complaint, if the learned Members of the Disciplinary Committee come to the conclusion that the same does not disclose a cause of action, can summarily dismiss the same. But once cognizance is taken by the Disciplinary Committee, then they are bound to make inquiry and give the parties an opportunity of hearing and only then will either reject the complaint or refer the same to the Tribunal for final adjudication. The N.-W.F.P. Bar Council. Tribunal or any Member empowered by the Chairman is invested with jurisdiction to consider and decide preliminary issues under section 43, subsection
(3) of the Act (ibid). So, the order of the learned Members of the Disciplinary Committee is patently illegal and without jurisdiction and is liable to be struck down.
' In view of the facts and circumstances of the case narrated above, we accept this appeal, set aside the impugned order and remand the case back to the Disciplinary Committee of the N.- W.F.P. Bar Council, Peshawar with direction to decide the same afresh on merits, after giving the parties an opportunity to produce evidence, as expeditiously as possible. There is, however, no order as to costs.
' Parties are directed to appear before the Disciplinary Committee on 20-7-2002. Office is also directed to inform the parties and to send them the attested copies of this judgment. Office is further directed to send the attested copies of this judgment to the learned District Judge, Peshawar for sending the same to the Rent Controller concerned with the direction to decide the Rent case titled (Mst. Zarqa Shaheen v. Khurshid Ahmad Khan, Advocate) within a period of three months positively.