' JUSTICE RAHMAT HUSSAIN JAFFERI (MEMBER)---The present appeal under section 4 read with section 3-B of the Sindh Service Tribunals Act, 1973 is directed against the order dated 23-1-2003 passed by the Authority whereby the appellant was removed from service in a departmental enquiry.
2. Appellant was Civil Judge and First Class Magistrate, Authorised Officer charge-sheeted him which reads as under:-- 'THE HIGH COURT OF SINDH KARACHI STATEMENT OF ALLEGATIONS ' Mr. Azhar Soomro, Civil Judge (Under suspension) Warrah has conducted himself in the following manner:--
1. That after scrutiny of the R&Ps of the following cases it was found that as Civil Judge and FCM Jacobabad he acquitted the accused by exercising the powers under S. 247 Cr.P.C. Though the same were cognizable and the proviso of section 247 Cr.P.C. Could not be invoked in such cases:--
(i) Direct Complaint No,162 of 1995 Abdul Sattar v. Murad and 4 others under Ss. 506(2)/451/34 P.P.C.
(ii) Criminal Case No,193/1995 Muhammad Murad v. Imtiaz and 2 others under Ss. 379/342/337-A(1), P.P.C.
(iii) Direct Complaint No,66/1995 Khan Muhammad v. Wahid Bux and 4 others under Ss. 380/506(2), 343/34 P.P.C.
(iv) Direct Complaint No,198/1995 Saddaruddin v. Rahim Bux and 3 others under Ss.
380/382/506(2)/34 P.P.C.
(v) Direct Complaint No,212/1995 Ashiq Ali v. Lal Bakhsh under Ss.420/406 P.P.C.
(vi) Direct Complaint No,230/1995 Asif Ali v. Muhammad and 6 others under Ss. 506(2)504/337- A/114, P.P.C.
(vii) Direct complaint No,181/1995 Allah Warrayo v. Chocho and 3 others under Ss. 420/406/506(2)
P.P.C.
(viii)Direct Complaint No,18/1996 Ramesh Lal v. Sadhamchand and 7 others under Ss. 506(2)/337- L/147/148 P.P.C.
(2) He had stopped the proceedings under Ss. 249 Cr.P.C. In many cases (List enclosed) without taking any step to secure the attendance of witnesses.
(3) The Direct Complaint No,18/1996 (Ramesh Lal v. Sudhamchand and others) was for offences punishable under Ss. 506(2), 337-L, 147, 148 P.P.C. In which he acquitted the accused under Ss. 147 Cr.P.C. By dismissing the complaint and simultaneously by his order dated 20-3-1996 took cognizance under Ss. 190(3) Cr.P.C. Of an offence punishable under Ss.153-A P.P.C. Against the complaint of the aforesaid Direct Complaint namely Ramesh Lal and others on the ground influence exerted by the said complainant on him, in disregard of the bar contained under Ss.196 Cr.P.C. He also recorded the statement of few witnesses and then remanded the complainant Ramesh Lal and Dilip Kumar to judicial custody. This act on his part is not only illegal but also mala fide and reflects his inefficiency and ignorance of law and procedure.
(4) That in Civil Transfer Application filed for withdrawal of Civil Suit No,05/1947 (Abdul Fatah v. Aijaz Ali and Muhammad Khan) pending in Court of Civil Judge Warrah, the applicants/defendants made allegations against him, inter alia that before deciding application under 0.XXXIX, Rule 2(3)
C.P.C. He not only remanded the applicant/defendant No, 2 to cusLody as he failed to furnish surely but also 4 others/strangers who were neither party to the suit nor there is any allegations against them, were also remanded to custody and kept them in criminal prison.
(5) That while submitting the explanation vide letter dated 7-4-1997 he transgressed the limits of etiquette and discipline and attacked the District, Judge saying that he is cynic and has played funny with the High Court.
' His above acts, prima facie, amount to gross mis-conduct and inefficiency within the meaning of Rule 2(4) of the Sindh Civil Servant (Efficiency and Discipline) Rules, 1973, calling for penalties prescribed under Rule 4(1) ibid. ' This issue in continuation of charge dated 7-7-1998 framed under Rule 6(1) of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973, against Mr. Azhar Soomro, Civil Judge and FCM (Under suspension) Warrah.
(Sd)
(Justice Nazim Hussain Siddiqui)
AUTHORISED OFFICER"
3. The appellant submitted his explanation, which was found unsatisfactory, therefore, enquiry was conducted, through Enquiry Officer. After recording the evidence, the Enquiry Officer found the charges proved against the appellant. The Authorised Officer concurred with the said findings therefore, he issued show-cause notice. The appellant made representation. After considering the representation and giving him personal hearing, the Authorised Officer recommended the case to the Authority for major penalty. The authority assumed final show-cause notice to the appellant.
He submitted his explanation. The Authority after considering the explanation and hearing the appellant passed the impugned order, hence the present appeal. The respondents filed comments in which they supported the order.
4. Learned Advocate for the appellant has stated that the penalty is harsh; that the appellant was competent to pass orders under section 247, Cr.P.C.; that if the same was found defective then it was a bona fide mistake; that the orders were judicial orders which were required to have been challenged before the appellate forum but nobody has challenged the said orders.
5. On the other hand the learned A-A.G. Has stated that the appellant was a senior judicial officer but in spite of that he had passed illegal orders with malafide intention; that the appellant was given every opportunity to defend himself but he could not produce any convincing evidence, therefore, he has supported the impugned order.
6. From the charge, it is clear that the appellant had acquitted accused persons in eight (8) cases, which were the result of direct complaints filed by private persons. The offences mentioned in the cases were cognizable and non-compoundable but the appellant acquitted the accused persons on the ground that the complainant failed to attend the Court. These facts have been admitted by the learned Advocate for the appellant. It has also been admitted that the appellant had acquitted accused persons in exercise of powers under section 247, Cr.P.C.
7. A perusal of section 247, Cr.P.C. Reveals that if the offences are cognizable or non- compoundable then the accused cannot be acquitted by invoking the above provisions of law.
Admittedly the appellant was an experienced judicial officer as he had served for about 9 years as a Magistrate but in spite of that the accused persons were acquitted in presence of clear bar contained in the section 247, Cr.P.C. Furthermore, the appellant had acquitted some accused who were charged under section 153-A. However by virtue of section 196, Cr.P.C. The Court had no jurisdiction to take cognizance in respect of offence punishable under section 153-A, P.P.C. Without a complaint made by an officer authorized by Central Government of Provincial Government as the case may be. Thus in all the cases the appellant had exercised the jurisdiction which was not vested in him. The conduct of the appellant clearly shows that the orders were passed in bad faith being conscious of the fact that he was doing wrong because he was not authorized to acquit the accused persons or to take cognizance in the matters, therefore, the action of the appellant comes within the ambit of mala fide, hence the Enquiry Officer has rightly held the appellant guilty of misconduct. The said findings have been confirmed by the Authorised Officer and Authority by given cogent reasons.
8. After considering the material available on the record we are of the considered view that the impugned order does not require any interference.
9. Above are the reasons of our short order dated 2-4-2005, by which we had dismissed the appeal.