1. ' AMANULLAH KHAN (CHAIRMAN).---Appellant being aggrieved from the order dated 29-8-1993, whereby he was dismissed from service and order dated 19-1-2003, whereby his request for reinstatement in service was turned down, has preferred this appeal.
2. ' The facts of the case are that appellant was appointed as Junior Clerk in Balochistan 'Reserve Police on 15-7-1978. He remained posted on the said post till 11th April, 1993, when his services were placed under suspension. The background of his suspension was that on 25-3-1993, an F.I.R. No.17 of 1993, was lodged under section 302 P.P.C. With Police Station Qaidabad, Quetta by one Ali Maded, wherein, it was alleged that appellant has committed the murder of Naimat Ali. He was arrested on 27-3-1993. After completion of investigation, Challan was submitted before the Sessions Judge, Ad hoc, Quetta and on conclusion of trial, appellant was convicted and sentenced to capital punishment vide Judgemnt dated 27-12-1994. Being aggrieved from his conviction, appellant filed an appeal before the Honourable High Court, being Criminal Appeal No.2 of 1995. The said appeal was dismissed on 10-1-1995 and sentence awarded to appellant was upheld. Thereafter appellant filed a Criminal Petition for Leave to Appeal being No.315 of 1996, before the Honourable Supreme Court of Pakistan. The said petition was also dismissed on 11-4-2001. In the meanwhile, Death Warrants of appellant were issued, but due to intervention of the Notables, a Compromise was arrived at between the legal heirs of deceased and appellant, which was accepted by the learned Sessions Judge, Ad hoc vide order dated 27-9-2002, whereby the appellant was acquitted of the charge, on the basis of the said compromise.
3. ' While the appellant was arrested in the aforesaid Criminal case, he was placed under suspension vide order dated 11-4-1993 w.e.f. 26-3-1993. An Enquiry Officer was appointed, who found him guilty and thereafter on the basis of said enquiry, he was dismissed from service vide order dated 29-8- 1993. After being released from the Jail, Appellant made his arrival report on 10-8-2002, before the competent Authority, but the same was not entertained. Thereafter he submitted an application for his reinstatement in service and also filed a departmental appeal, which was dismissed vide order dated 19-1-2003. Hence this appeal.
4. ' Mr. W.N. Kholi, learned Counsel for appellant contended; that since there was no other allegation and appellant was dismissed from service on the basis of registration of a criminal case and the conviction and sentence passed, was ultimately set aside and he was honourably acquitted of the charge, by the trial Court, on the basis 'of compromise, therefore, he is entitled to be reinstated in service with all back-benefits. In support of his contention learned counsel placed reliance on the cases reported as 1998 SCM R 1993 (Dr. Muhammad Islam v. Government of N.-W.F.P. Through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others) and 2001 SCM R 269 (Atta-Ullah Sheikh versus WAPDA and others).
5. ' Mr. Salahuddin Mengal, learned A.-G. Opposed the appeal on the ground, that appellant was not acquitted houourably, but he has been acquitted on the basis of a compromise, whereas in the actual case, he was convicted, meaning thereby, the prosecution had proved its case and the conviction was also upheld upto Honourable Supreme Court.
6. ' With the assistance of learned Counsel for parties, we have perused the record of case.
7. ' The contention of Mr. W.N. Kholi, Advocate, that the appellant was only dismissed from service on the basis of judgments passed in the criminal case and there was no departmental case against he appellant, is not disputed. As regards the acquittal of appellant, learned counsel contended; that since the acquittal has not been defined in the Service Laws nor in the Code of Criminal Procedure, thus, all kinds of acquittals, are reckoned to be honourable and no distinction can be made. In this behalf, he referred to the dictum laid down by the Honourable Supreme Court in 1998 SCM R 1993, relevant para. Wherefrom is reproduced herein-below:--- "We are inclined to uphold the above view inasmuch as all acquittals even if these are based' on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove of cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals."
8. ' The learned Advocate General, when was confronted with the same, he could not give any satisfactory reply. Since the appellant was removed from service on the basis of judgments passed against him and after arriving at a compromise, the appellant was acquitted of the charge on the basis of a compromise, meaning thereby, that the judgments passed against the appellant were merged into compromise, on basis of which, the appellant was acquitted.
9. ' Mr. W.N. Kholi, further argued that, appellant may be reinstated in service with all back-benefits. In this behalf, he placed reliance on 2001 SCM R 269, wherein following observations were made:-- "10. It is an admitted fact that the appellant was acquitted by learned Special Judge (Central), Multan from the charges which were levelled against him. This Court, in the case of Dr. Muhammad Islam has laid down a dictum that all acquittals are "honourable" and there could be no acquittal which could be termed as "dishonourable."
10. ' Learned Advocate General opposed the appeal and stated that the appellant is not entitled to back-benefits, as the judgment relied upon is distinguishable.
11. ' A perusal of the aforesaid judgment, reveals that in the said case, accused was acquitted of the charge by the trial Court, as the prosecution failed to establish its case, thus he was given the back-benefits. Whereas the case of appellant is distinguishable, as after submission of the Challan, he was tried and convicted for capital sentence, which was uphold by the Honourable Supreme Court. Thereafter he was acquitted by the trial Court, on the basis of a compromise, thus, as far as the criminal case against the appellant is concerned, that was proved, which distinguishes the case of appellant. As such, we do not find appellant, entitled for back- benefits.
12. ' In view of the above discussion, appeal is accepted. The order of dismissal of appellant from service dated 29-8-1993 is set aside and he is directed to be reinstated in service without back benefits. The period during which, he remained absent shall be considered leave without pay.
13. ' No order as to costs.