' JUSTICE MUHAMMAD QAIM JAN KHAN (CHAIRMAN).--Haji Habib Ullah son of Muhammad Kamal filed a complaint in the N.-W.F.P. Bar Council, Peshawar alleging therein that he had engaged the respondent namely Fazal Rahim, Advocate, Chitral for conducting his cases regarding the forest royalty disputes in the District Courts, Chitral. The respondent through various cheques withdrew a sum of Rs,20,82,424 from the account of the complainant maintained in the United Bank Limited, Chitral and Muslim Commercial Bank Limited, Chitral. Further averments in the complaint are that Fazal Rahim, Advocate-respondent started accepting cases of similar nature between the same parties and advocating the cause of the opponents of the complainant and thus by representing conflicting interests, have violated the ethics of professional conduct as prescribed by the Legal Practitioner and Bar Council Act, 1973 and the rules framed thereunder, so stern legal action was prayed for in the matter.
2. The Disciplinary Committee of the N.-W.F.P. Bar Council initiated proceedings against the respondent. In the written statement the respondent contested the allegations as contained in the complaint. This fact was controverted that the respondent has ever represented conflicting interest, regarding the withdrawal of money through cheques. It was submitted in para. No,5 of the written statement that in fact, the respondent has received Rupees nine Lacs which was in the shape of part payment of the professional fee rather the complainant has not paid so far the remaining outstanding fee to the respondent. It was next submitted that the respondent being the General Secretary of Forest Royalty Holders Association and was thus with in his right to conduct the cases of the effected royalty holders.
3. The Disciplinary Committee of the N.-W.F.P. Bar Council after recording evidence of the parties and considering the data available on the file as well as written arguments of the parties by an order dated Nil dismissed the complaint. Hence the present appeal by Haji Habib Ullah appellant challenging the vires of the impugned judgment of the Disciplinary Committee of the N.-W.F.P. Bar Council, Peshawar.
4. M. Jamil, Advocate learned counsel appearing for the appellant. Vehemently contended that the order of the Disciplinary Committee is contradictory , insofar as in the same order the respondent has been warned but simultaneously the complaint has been dismissed. It was also argued that under section 41 of the Act (ibid) reprimand or warning is a punishment and when the punishment was awarded, then the Disciplinary Committee of N.-W.F.P. Bar Council had no jurisdiction to dismiss the complaint. It was next argued that against the impugned order, no appeal has been filed by the respondent and thus the punishment in the shape of warning recorded by the members of the Disciplinary Committee has remained unchallenged and has attained finality. On merits it was argued that the respondent has admitted the withdrawal of money so much that he has repaid a part of the same which was credited in the Bank account of the complainant and thus, by doing so, the respondent admitted his guilt. Malik Akhtar Naveed, Deputy Advocate- General adopted the same arguments.
5. On the other hand the respondent contended that the impugned order has been passed on merits and the Members of the Disciplinary Committee has considered the evidence and data available on the record and has rightly exonerated the respondent. It was also argued that the impugned order is just and right and is in consonance with the principles of justice and calls for no interference.
6. We have given our due consideration to the facts and circumstances of the case and would refrain from commenting on the merits of the case so that the same may not prejudice the case of either party.
7. The Disciplinary Committee of N.-W.F.P. Bar Council under section 41, subsection (4) of the Act
(ibid) can summarily reject the complaint after making such enquiries and after giving the parties an opportunity of being heard, which it considered necessary, but if the Disciplinary Committee wants to impose punishment then the matter should be referred to the Tribunal for final adjudication as the learned Members of the Disciplinary Committee has got no powers to award punishment as envisaged under the provisions of section 41 of the Act (ibid) which also provides reprimand or warning as minor punishment. By administering warning to the respondent and at the same time rejecting the complaint of the complainant, the impugned order has been rendered self-contradictory which is liable to be struck down.
' In view of the facts and circumstances of the case and legal point involved therein, we accept the instant appeal, set aside the impugned order of the Disciplinary Committee of the N.-W.F.P. Bar Council, Peshawar and remand the case back to the Disciplinary Committee for deciding the case afresh after giving the parties an opportunity of being heard. There is, however, no order as to costs.