' AKBAR M. MEMON, MEMBER.---Appellant hereinbove, who was lastly working as Lance Naik G.D.
With the respondents, has challenged the order dated 3-6-2000, whereby he was reduced in rank and dismissed from service with effect from 2-6-2002. The order in question is reproduced hereunder: "2.A-115671 NK/GD Muhammad SaleemUnder section 15(1) of PR Ordinance 1969, read with Rule-4 of PR (E.D. & A) Rules 1 ChargeMisconduct in his capacity as a member of the force, in that he, while serving in Alpha Company 91 Wing Abdullah Shah Ghazi Rangers, on night 4/5 May 2000 participated in unauthorized raid with RO-584 DSR Muzaffar Malik in the house of civilian Mr. Haji Akbar Khan.
2 ChargeMisconduct in his capacity as a member of the force, in that he, while serving in Alpha Company 91 Wing Abdullah Shah Ghazi Rangers, knowingly made a false statement before the Court convened to inquire into the complaint of Haji Akbar Khan inspite of the fact that he had earlier voluntarily confessed committing the offence, thereby committed the offence of false hood and displayed cowardice to speak truth.
Punishment Awarded bya. Dismissed from service on 2 June, 2000.st nd Comdt. ASGER b. Reduced to ranks."
2. Mr. Ghulam Mustafa Lakho, learned counsel for the appellant has contended that the appellant was originally appointed as Sepoy in Abdullah Shah Ghazi Rangers in the year 1989 and on account of his good performance and devotion towards duty, he earned appreciation and was promoted to the post of Naik and subsequently to that of Lance Naik G.D. On 19-5-2000. He has contended that on or about 5th May, 2000 one D.S.R. Muzaffar Malik of 91 Abdullah Shah Ghazi Rangers was alleged to have raided certain places including the house of one civilian Akbar Khan and on coming to know an enquiry was made by the respondents, whereafter the appellant was served with a charge-sheet. Subsequently Court of Enquiry was constituted in which witnesses were examined.
He has contended that not a single witness had. Seen the occurrence personally and it would be wrong to say' that the appellant had confessed his guilt before the Court of Enquiry. Referring to the evidence of witness he has contended that the entire case is based on the statement of Naik Allah Yar, who made the entire exercise on receiving telephonic call that a raid was conducted by somebody from Rangers, whereafter he made probe in the matter on the asking of high ups, he came to know that D.S.R. Muzaffar Malik accompanied with his subordinates had raided the house of one civilian Akbar Khan. He has contended that all the accused including the appellant were examined in the Court of Enquiry where they declined to have conducted the raid and some of the accused had even gone to the extent that they had no knowledge about the occurrence, then too, the Court of Enquiry opined that the accused had knowingly made a false statement before the Court and recommended stern disciplinary action against the accused including the present appellant. He has contended that neither the D.S.R. Was examined nor the person whose house was raided was called in the Court of Enquiry, then too, the appellant has been punished. He has further contended that the appellant has been punished twice, as such; it will be a case of double jeopardy as in connection with charge No,1 he was dismissed from service and for the remaining charge No,2 he has been reduced in rank. He has contended that assuming for the sake of argument that the appellant had accompanied D.S.R., then being, a member of the force he had to obey the orders of Deputy Superintendent Rangers and he could not have dared to ask question from him as to whether the D.S.R. Was proceeding alongwith others for conducting a fake raid or otherwise. He has contended that if it was so, then it was a. Fault on the part of D.S.R. As regards the conduct of the appellant is concerned, he has contended that evidence which has come on record reveals that prior to this no such complaint was ever made against the present appellant and that the appellant was doing his job satisfactorily, as such, lenient view be taken as the appellant belongs to a remote area of desert of Thar and he is only the bread-earner of his family. In such circumstances, he has contended that the appeal is allowed and the appellant be reinstated back in service.
3. Major Falak Naz appearing for respondents has opposed the appeal. He has contended that the appellant had accompanied alongwith others with the D.S.R., who raided the house of one civilian and since the department has been given bad name, the appellant deserves no leniency. He has contended that the appeal merits no consideration and is liable to be dismissed.
4. After hearing the Advocate for the appellant and so also DR appearing for respondents we have gone through the appeal file.
5. There is no denial of the fact that the entire case is based on the evidence of Naik Allah Yar, who made probe in the matter on receiving telephonic call about the raid conducted by the hangers on the house of one civilian Akbar Khan on the night of 4/5th May, 2000, but this Naik Allah Yar is not an eye-witness of the occurrence. He has no doubt stated that the appellant and others had confessed their guilt in his presence which can be termed as 'extra-judicial confession', but the same was denied by the appellant and the other accused before the Court of Enquiry. At the same time neither any application of civilian Akbar Khan has been produced nor he was examined by the Court of Enquiry in support of the allegation that the appellant and others had in fact accompanied, D.S.R. Who raided the house of civilian Akbar Khan.
6. No doubt a member of the force as defined in rule 2(d) and (f) of the Pakistan Rangers Ordinance, 1959 can be summarily tried under rule 4 of the rules (ibid) but due to non-examination of the affected person whose house was raided or any other witness who had in fact seen the occurrence, we are of the view that the evidence before the Court of Enquiry was scanty one and the finding/recommendation of the Court of Enquiry is based on presumption only thai the appellant and other accused had confessed their guilt due to which the appellant was punished.
7. The interesting aspect of the case is that the appellant was examined on 9th May, 2000, whereas he was charge-sheeted on 25th May, 2000, but letter dated 19th May, 2000 shows that appellant was promoted in the rank of Naik G.D. With effect from 4th January, 2000, where he was kept on probation for one year extendable by two years as per rule 13 of the Pakistan Rangers Recruitment Rules, 1968. This aspect of the case has neither been disclosed by the counsel for the appellant, nor the DR has thrown any light on it.
8. To sum up the entire discussion we are of the view that the evidence before the Court of Enquiry was scanty one particularly when Naik Allah Yar was not an eye-witness to the incident and when the appellant and the other accused had totally denied to have gone with the D.S.R. Who conducted the alleged raid, it was the duty of the Court of Enquiry to have examined at least some independent eye-witnesses to establish their case. When this has not been done, we are of the considered view that no case had been made out against the appellant and as such, we set aside the impugned order dated 3rd June, 2002, whereby the appellant was dismissed from service with effect from 2nd June, 2002 and reduced in rank. Accordingly, we direct the respondent to reinstate the appellant in the same position from which he was dismissed from service with all back- benefits.
9. In view of the above factual position, there will be no order as to costs.
10. Parties are informed accordingly.