' WAHID BUX BROHI, J.---Appellant Qazi Abdul Shakoor has impugned the order dated 15-8-1983 passed by learned District and Sessions Judge, Dadu in capacity of 'authority' whereby the appellant was dismissed from service. The text of the order runs as under:- "Consequent upon conviction on 26-4-1983 for 9 months R.I. By the Summary Military Court No.20 Hyderabad, Mr. Abdul Shakoor S/o Abdul Rehman Kazi, Ex-Reader to the Court of Civil Judge and FCM Kotri is dismissed from service with effect from the aforesaid date of his conviction.
2. The background of the case, as reflected in the memo. Of appeal, is that the appellant was serving as Reader to Civil Judge, & FCM, Kotri. A civil suit bearing No.26 of 1979 (Zakaria v. Jhando and another) was filed in the said Court for declaration, injunction and cancellation of documents which was decreed in favour of the plaintiff. Some allegations were levelled against the appellant, but according to appellant, it was proved in the Ci-, 1 Court that the appellant was not involved in any misappropriation or fraud. Despite this a complaint was lodged before Military Court where without affording an opportunity of hearing to the appellant he was convicted and on the basis of such conviction by Military Court he was dismissed from service through the impugned order. The appellant filed a Constitution Petition in High Court (C.P. No.D-96 of 1992) challenging his conviction by the Military Court and by order dated 4-12-1997 passed by a Division Bench of High Court, (Circuit at Hyderabad) in C.Ps. Nos.D-49/87, 137/88, 142/88, 61/90, 96/92, 120/92 and 535/94 the petition of the appellant as also the other petitions were allowed in following terms:-- "16. As a result of the above discussion, we allow all these Constitutional petitions and hold that the proceedings before the Summary Military Courts were mala fide and without jurisdiction and, therefore, of no legal effect."
3. The appellant's departmental appeal failed, he has, therefore, approached this Tribunal with a prayer that since the very foundation of the order of dismissal ceased to exist the said order may be set aside.
4. We have heard Mr. Abrar Bukhari, learned counsel for appellant, Mr. Ahmed Pirzada, learned A.A.- G for respondents. On our request Mr. Manzoor Ali Khan Advocate also addressed the Court as amicus curiae. We have also perused the relevant material including the record of High Court dealing with the departmental appeals of the appellant.
5. On perusal of the record of High Court it transpires that the first departmental appeal of the appellant was dismissed on 29-9-1984 by the Hon'ble Chief Justice by passing the following order:- - "The appellant is present in person. I have heard him. He has been convicted by a Military Court on the charge of committing a forgery and cheating. In fact he has even served out his sentence.
' I cannot reinstate him and his appeal is dismissed.
' (Sd.) Chief Justice 29-9-1984."
6. Thereafter, when the appellant was acquitted by the Division Bench of High Court he again filed his representation/appeal which was decided by a learned Judge of High Court holding as under:- - "Heard Abdul Shakoor Soomro. His earlier appeal has already been dismissed by the Hon'ble Chief Justice on 29-9-1984., Such order is available on page No.9 of office file No.Admn/XXXIX-A-(D) of Administration Branch.
' In the present appeal the main contention of the appellant is that he has filed a Writ Petition No.98 of 1992 against the conviction/sentences awarded to him by the Summary Military Court in 1983.
The said petition was disposed of by order dated 4-12-1997. In para 15 of the said judgment, it is observed by the Court that in spite of repeated notice the documents and evidence were not placed before the Court on the basis of which the conviction/sentences were passed. The reading of the said judgment shows that the State failed to produce the material before the Court and therefore the petitions were allowed. The Hon'ble Chief Justice while dismissing the earlier appeal already considered the grounds raised by him in his favour and after considering the same his appeal was dismissed on 29-9-1984. I find no reason to allow this appeal. In the circumstances the same is dismissed.
(Sd.) Judge"
7. The position that is manifestly reflected from a joint reading of the above orders is that the consequential effect of acquittal of the appellant through the judgment of a Division Bench of High Court remains to be considered in the light of settled law as this point has not been thrashed in the aforesaid orders. Admittedly, the very foundation of the order of dismissal of the appellant that is to say his conviction by Military Court, has been declared by a Division Bench of High Court to be mala fide, without jurisdiction and of no legal effect. At a glance, an opinion can simply be formed that the superstructure should wholly collapse if the foundation ceases to exist or breaks down totally. Nevertheless, the legal position has been examined thoroughly and the relevant case-law has also been reviewed with a view to fostering justice.
8. It would be relevant, at the outset, to refer to the leading case on the point Muhammad Sardar v.
Senior Member (Estab.) Board of Revenue (1985 SCMR 1062). In the said case the civil servant/appellant, who was an Assistant in the office of Board of Revenue, Government of Punjab, was tried and convicted for an offence punishable under section 161, P.P.C. Read with section 5(2) of the Prevention of Corruption Act and was sentenced to imprisonment till arising of the Court and fine of Rs.3000 or in default to undergo further 6 months rigorous imprisonment. In view of aforesaid conviction, on disciplinary side Board of Revenue removed the appellant from service.
The appellant challenged his conviction and sentence in the High Court and succeeded in getting the same set aside. He was extended benefit of doubt and acquitted. His departmental appeal was dismissed as he was not acquitted honourably. The Service Tribunal took the view that the appellant had not been acquitted honourably and that he had a very bad service record and dismissed his appeal. The Hon'ble Supreme Court observed that the concept of Honourable acquittal was unjustificably imported by the Tribunal in determining the question of validity of the appellant's removal from service, and held that the very basis on which order of removal stood having disappeared and no other departmental disciplinary proceedings having been taken against the appellant, the order of removal had become ineffective.
9. Muhammad Sardar's case was followed in Azharul Haq v. Director of Food, Punjab (1991 SCMR 209) wherein a Senior Clerk was convicted and sentenced to undergo rigorous imprisonment for 6 months and fine of Rs.100 by Special Judge Anti Corruption, Lahore, but the conviction was set aside in appeal by the Lahore High Court giving him the benefit of doubt. The Hon'ble Supreme Court referring to its earlier decision in Muhammad Sardar's case (supra) held as under:- "9. The dismissal of the appellant was based on the conviction recorded against him. Since the conviction has been set aside, the order of dismissal cannot be maintained and has to be set aside. The appeal is accepted and the respondents are directed to reinstate the appellant in service with back-benefits with effect from 22-1-1980."
10. Muhammad Sardar's case was also followed in Muhammad Hussain v. Collector, Central Excise and Land Customs, Rawalpindi (1989 PLC (C.S.) 175) wherein the appellant, who was Inspector of Customs Department, was convicted by Summary Military Court and consequent upon his conviction he was dismissed from Government service. On his mercy appeal/petition, he was pardoned by Martial Law Administrator, Zone-A. It was further ordered that he may be reinstated in service. The Tribunal held that the grant of pardon was tantamount of Honourable acquittal. The Tribunal relied on Muhammad Sardar's case (1985 SCMR 1062) on the point that when sentence is set aside and the accused officer is acquitted, the very basis on which order of removal from service stood, would disappear and as a result of such conclusion the order of removal was actually set aside and reinstatement into service was directed. Consequently, the Service Tribunal ordered reinstatement of the appellant in the cited case.
11. On the point of Honourable acquittal the Hon'ble Supreme Court observed in clear terms in the case Attaullah Shaikh v. WAPDA (2001 SCMR 269) that all acquittals are honourable and there could he no acquittal, which could be termed as dishonourable.
12. In Ch. Muhammad Azhar's case (PLJ 2003 SC 493) the petitioner, who was Assistant Excise and Taxation Officer, Lahore was imposed major penalty of dismissal from service, while the co- accused were awarded other penalties, but the departmental appellate authority allowed his appeal and modified the penalty from dismissal to compulsory retirement. The aforesaid order was further modified by the Punjab Service Tribunal reducing the penalty of compulsory retirement to reduction in time scale by one stage treating the intervening period as extra ordinary leave of the kind due. This order was challenged in the Hon'ble Supreme Court, and the ground taken was that the petitioner was exonerated by the Inquiry Officer and was also acquitted of the criminal charge by the trial Court. The Hon'ble Supreme Court declined to grant leave against those orders.
13. In Zaffar Ullah Khan v. Secretary, Government of Punjab (2004 PLC (C.S.) 1438) the appellant was convicted by Summary Military Court along with others on certain charges of corruption which order was set aside by the High Court holding that the conviction by Summary Military Court was illegal being in violation of Pakistan Army Act. The said civil servant was not one of the petitioners in the writ petition yet the benefit of judgment was allowed to him by the Service Tribunal. No inquiry was held against the civil servant and thereby no evidence remained in the field as to the allegations/charges. Two other convicts had been reinstated and the same benefit was extended to the civil servant/appellant and order of his dismissal from service was set aside and since the appellant had already reached the age of the superannuation it was directed that the acceptance of the appeal would only render monitory benefit to the appellant.
14. The most significant aspect that needs to be determined in this case is the effect of acquittal of the appellant on the impugned order which is wholly based on the ground that the appellant was convicted in a criminal case by the Military Court. No doubt, at the relevant time the order passed by the learned District Judge was perfectly justified within the meaning of rule 8 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, but thereafter the factual position stood changed altogether. Perusal of the order passed by the Division Bench of High Court of Sindh reveals that the respondent therein that is to say the Government failed to produce any record of the trial whereby the appellant was convicted, so much so that even the allegation in the petition that provisions of Martial Law Order was and Regulations were flouted and the conviction/sentence was without jurisdiction was not denied. It goes without saying that absolutely no record was made available before the High Court to show, what were the charges and allegations, what was material and what was considered by the Summary Military Court? In consequence thereof the High Court held that the proceedings in the Summary Military Court were mala fide and without jurisdiction and of no legal effect. Essentially, the acquittal from such proceedings was an honourable acquittal, irrespective of the fact it was mentioned so in the order was not. Mr. Manzoor Ali Khan also holds the same view.
15. Nevertheless, on a discreet approach to the controversy herein it may be observed that it was even otherwise immaterial if the acquittal of appellant was honourable or not, for the dismissal from the service of the appellant was solely founded on the order of conviction which stood eliminated in consequence of the order passed by the Division Bench of High Court in the Constitution Petition No.D-96 of 1992 filed by the appellant. No inquiry was held against the appellant and as such there is no evidence in the field against him. Principle laid down by the Honourable Supreme Court in the precedents discussed above, when applied to this case, lead to a positive conclusion that the impugned order in consequence of acquittal of the appellant shall not hold the field and the order of dismissal, therefore, could not be sustained.
16. In result of the foregoing discussion the impugned order is set aside. The appellant, however, has already attained the age of superannuation, he would only be entitled to monetary benefits from the date of passing of the impugned order in accordance with law. The appeal is allowed in these terms.