' JUSTICE (RETD.) ABDUL GHANI SHAIKH (CHAIRMAN).---Appellant Irshad Ahmed Sohail while posted as Inspector/Incharge Investigation (Homicide), S.I.T.E./Orangi Town, Karachi, was entrusted with the investigation of high profile case arising out of Crime No,282/2002 under section 6-F/7(A). Anti- Terrorism Act, 1997 registered at Orangi Extension, Police Station. Allegedly five terrorists belonging to Harkat-ul-Mujahiden Al Alami were arrested with automatic weapons and audio-cassettes containing sectarian inflammatory material on 10-2-2002. On completion of investigation, appellant submitted challan in the Anti-Terrorism Court, Karachi. The case was proceeded in the Anti-Terrorism Court No,III at Karachi, headed by Mr.' Arshad Noor Khan, Judge. The said case, however, ended in acquittal of all the five accused persons mainly on account of faulty investigation. Besides, one eye-witness Arshad Mehmood was also proceeded with for perjury under section 193 Cr.P.C. And was remanded to custody for want of surety.
2. Thereafter, departmental proceedings were initiated against the appellant. Vide two separate orders dated 19-11-2002 passed by the Deputy Inspector General of Police, Investigation-I, Karachi, appellant was placed under suspension and reverted to his substantive rank of Sub-Inspector. On the basis of the report of Senior Superintendent of Police Investigation (H), Karachi, appellant was also served with show-cause A notice dated 1-1-2003 issued by respondent No,2, which the appellant replied and while explaining his position he denied the allegations of faulty/defective investigation, lack of supervision, lack of interest and his failure to prevent remand of P.W. Arshad Mehmood to jail by A.T.C. Judge. His reply was found not satisfactory. He was also provided chance of personal hearing but failed to convince the respondent No,2. Ultimately, by order dated 10-1- 2003 appellant was awarded major penalty of "Reduction in rank as Sub-Inspector", feeling aggrieved, he preferred departmental appeal lo respondent No,1, which remained unresponded.
Hence this appeal.
3. In support of appeal, learned counsel for the appellant argued that as a matter of fact and as per record the accused persons were apprehended by Inspector Ali Haider Shah, S.H.O. Of Police Station Orangi Extension, who allegedly recovered arms and ammunition so also audio-cassettes from the accused in presence of P.W. Arshad Mehmood and that memos. Of arrest and recovery were also prepared by said S.H.O. So also 161 Cr.P.C. Statements of the witnesses were also recorded by the S.H.O., therefore, appellant cannot be held guilty of faulty/defective investigation.
He contended that on account of several prosecution lapses the accused were acquitted by the Court i,e, no witness from the vicinity of the incident was associated by the S.H.O., no step towards terrorism or attempt was seen and it only amounted to intending act, mere recovery of some literature commonly available in market does not entail involvement of accused persons, the organization was not notified as prohibited organization under the Anti-Terrorisrn Act, press clippings already appeared in various newspapers about the arrest of accused persons by C.I.D.
Ten days before the actual' registration of case and difference in the parentage of P.W. Arshad Mehmood. But despite that the S.S.P. Investigation-II on the basis of opinion of P.D.S.P. Accorded approval for submission of challan against the accused persons in the concerned Court of law and that for the above said prosecution lapses, appellant cannot be held guilty of lack of supervision and interest. On the allegations of appellant's failure to prevent remand of P.W. Arshad Mehmood to jail, learned counsel states that during the course of investigation this witness never appeared before the appellant and that he was produced before the Court by the S.S.P. Through some other D.S.P. And appellant for the first time seen the witness in the Court room. Besides, he submitted that witness was not remanded to jail on account of non-furnishing of surety in the case of perjury, as alleged, but he was remanded due to his failure to attend the Court twice. So far proceedings under section 193 Cr.P.C. Are concerned, the same are still pending adjudication not only against the said witness but also against the appellant and the S.H.O. Of Police Station Orangi Extension namely Syed Ali Haider Shah. Learned counsel also urged that the allegations against the appellant were serious in nature which he denied vehemently, yet no regular inquiry was ordered/conducted and that no final show-cause notice as provided by rules was given to the appellant, thus the whole proceedings being in violation of the mandatory provisions of law and the principles of natural justice are neither sustainable nor maintainable may be declared as null and void and the impugned order based on such illegalities and irregularities is also liable to be set aside, which may be set aside. In support of his contention, learned counsel has relied upon; (i)
2000 PLC (C.S.) 270 (ii) 2000 PLC (C.S.) 937, (iii) 2001 PLC (C.S.) 296, (iv) 2001 PLC (C.S.) 648, (v)
2001 PLC (C.S.) 1097, (vi) PLD 2002 SC 667, (vii) 2002 PLC (C.S.) 1078, (viii) 2002 PLC (C.S) 1106, (ix)
2002 PLC (C.S.) 1324 and (x) unreported judgment dated 26-6-2002 passed in Civil Petitions Nos.349-K/2002 to 351-K/2002 by Honourable Supreme Court of Pakistan.
4. Learned counsel for the appellant also submitted written arguments, wherein he added that the authorized officer before recommending the case to the authority had not given any show-cause notice to the appellant and that authorized officer acted as complainant, prosecutor and Judge, therefore, the penalty awarded to appellant is not sustainable. He stated that appellant was exonerated by the D.I.G.P. Investigation when called in orderly room but subsequently the D.I.G.P.
Changed his mind and awarded major penalty. In para-8 of the written argument learned counsel stated that during the course of arguments the Tribunal in presence of Mr. Yosuf Ali Mirza, Member (now deceased) had observed that appellant is innocent and whole proceedings initiated against him were in violation of law.
5. On the other hand, learned Asstt.A.G. While referring the written statement and the judgment passed by the Anti-Terrorism Court, has argued that appellant failed to pursue the high profile case successfully and conducted the investigation in a cursory manner resultantly the accused persons were acquitted and that he also failed in effectively handling the case as a result of which one innocent person was ordered to be proceeded for perjury. She contended that learned Judge of A.T.C. In his judgment dated 4-11-2002 has clearly observed that investigation of the case was not conducted in proper and legal manner and that was the main ground of acquittal of the accused persons. She stated that departmental proceedings against the appellant were held purely in accordance with law and rules and full opportunity was provided to him but he failed to rebut the allegations levelled against him in the show-cause notice. She urged that impugned order being legal, proper and justified may be maintained.
6. Admittedly, the appellant was entrusted the investigation of F.I.R. No, 282/2002 under sections 6- F/7(A). Anti-Terrorism Act, 1997 and after conducting the same he submitted challan against the nominated accused before the Court concerned. Therefore, for any lapses either factual or legal committed by appellant due to his inefficiency, negligence or carelessness, he alone can be held guilty for the same. The departmental proceedings against the appellant were initiated on the basis of judgment dated 4-1-2002 passed by Mr. Arshad Noor Khan, Judge, Anti-Terrorism Court No,III, Karachi, whereby all the five accused nominated and challaned were acquitted mainly on account of faulty and defective investigation conducted by appellant. Contention of learned counsel that during the investigation P.W. Arshad Mehmood never appeared before the appellant and that this witness was produced by the S.S.P. Before the Court through some other D.S.P. And that appellant for the first time saw the witness in the Court room, has no substance, in view of appellant's own admission before the Court that he had recorded the statement of Shahid Abbasi S.-I., and Arshad Mehmood son of Zubair on 11-9-2002 at about 3.00 p.m. At his Police Station. The - evidence of appellant before the Court concerned as per judgment was recorded as under:-- ''P.W.3 Inspector Irshad Ahmed Sohail Investigating Officer also deposed that he had received the investigation of the present case and he had obtained the custody of the accused on the same night, when he had received the investigation and had interrogated from the accused and during the course of investigation the accused had informed him that the said cassettes and other materials have been given to them by one Ahsan. According to him he had recorded the statement of Shahid Abbasi S.I.P. And Arshad Mehmood son of Zubair on 11-9-2002 at about 3.00 p.m. At his Police Station. He further stated that after completion of interrogation from the accused, they were sent of J.C. By the Administrative Judge and thereafter he had obtained the case property from police station Orangi Extension and had desealed the said sealed parcels and had heard audio-cassettes and was of the opinion that the said material was sufficient to stir up section hatred and violence against Shia sect. ' In cross-examination he has stated that he had not prepared inspection memo. Of place of incident. He further stated in cross-examination that he had demanded the NIC from mashir Arshad son of Zubair before recording his statement and he had informed him that NIC has been missed and that he had not examined his driving licence. He further admitted in cross-examination that to his knowledge, so far the Government has not imposed any ban on the said audio- cassettes recovered from the accused. He further admitted in cross-examination that the audio- cassettes secured from possession of accused are generally and easily available in the market."
' Learned Judge while evaluating the evidence of appellant observed as under:-- "A perusal of testimony of P.W.3 Inspector Irshad Ahmed Sohail Investigating Officer shows that he had recorded the statement of the witnesses after receipt of the Investigation at his Police Station and had also desealed the parcels of the case property. The desealing of the sealed parcels is highly objectionable on the part of the Investigation Officer and there is every possibility regarding substitution of the audio-cassettes at the hand of the prosecution as so far the evidence discussed above shows that the act and intention of the prosecution was not bona fide in implicating the accused. The evidence of P.W-2 Arshad Mehmood as discussed above in the specific instance regarding the colourful attitude and conduct of the prosecution. It is also of much significance that the Investigating Officer in his statement at two places has stated the name of mashir as Arshad son of Zubair but the statement of P.W.2 Arshad Mahmood shows his parentage as Ameer Khan. It is, therefore, crystal clear that some other person has been produced by him before this Court in support of Mushiranama Exh.
10. It is also of much significance that the alleged audio-cassettes and books allegedly secured from the accused are not ban articles so as to say that the banned articles were secured from the possession of the accused and since the Government itself has not imposed any ban on such type of audio-cassettes as such it could not be said that keeping of such type of audio-cassettes is offence within the definition of section 8(d) of A.T.A. 1997, the testimony of P.W.3 Inspector Irshad Ahmed Sohail therefore suffers from material illegality and irregularity and does not inspire confidence."
' The learned Judge finally so far appellant is concerned, concluded as under":--- ' In fact P.W.-3 Irshad Ahmed Sohail Investigating Officer has also referred the parentage of mashir as Zubair Khan as such the possibility regarding false setting up of P.W.-2 could not be ruled out.
The Investigating Officer desealed the sealed parcels of the case property without any lawful authority which also creates considerable doubt regarding the recovery of alleged objectionable audio-cassettes. The admission of the Investigating Officer that the Government has not imposed any ban on the said audio cassettes, is also of much importance and exclude the keeping of such type of cassettes from the purview of section 8(d) of A.T.A.
1997. He has also not shown the said ' Ahsan' as absconder in charge sheet."
7. From the above findings and conclusion drawn by the learned A.T.C. Judge, it is abundantly clear that the five nominated accused were acquitted mainly due to defective investigation of the case conducted by the appellant. His carelessness, negligence and inefficiency is evident from the simple fact that he could not even bother to verify the parentage of the only independent and star witness of the prosecution. It appears that appellant conducted investigation of such a high profile case in a cursory manner which resulted in acquittal of the accused persons. His contention that he had not recorded the statement of P.W. Arshad Mehmood has been proved false by the learned trial Court. His other lapses during the investigation of the case as pointed out by the learned Court referred to above by itself speaks about the negligence of appellant. As regards regular inquiry, it is suffice to say that in view of the clear-cut finding of the learned A.T.C. Judge which has not been challenged before any higher forum, the same has thus attained finality and there was no necessity of holding any regular inquiry.
8. Contention that appellant was exonerated in the Orderly room by the D.I.G.P. Investigation but subsequently appellant was awarded major penalty, in the absence of any solid proof, has no substance. Likewise the contention that this Tribunal had earlier observed that appellant is innocent and proceedings against him were initiated in violation of law, has also no substance. As a matter of fact no such observations were made. In any case, the observations during the course of arguments are always of tentative nature and the judgment cannot be passed on the basis of such tentative observations but while dictating judgments each and every assertion made for and against has to be looked into in the light of the documents and other material placed on the record. The last contention that authorized officer has acted as complainant, prosecutor and Judge has also no substance. Appellant was proceeded under Sindh Police (E&D) Rules, 1988 wherein there is no concept of Authorised Officer and Authority.
9. For the aforesaid reasons, we are of the firm opinion that appellant was rightly proceeded with departmentally and the penalty of reduction in rank was just and appropriate. However, no specific period has been mentioned. Accordingly, while maintaining the impugned penalty,. We direct that the period of reduction in rank shall be for a period of 2 years from the date of original impugned order. With the above modification in the original impugned order, the appeal stands dismissed, with no order as to costs.
10. Announced in open Court.