ABDUL GHANI SHAIKH CHAIRMAN.-- This appeal u/s. 4 of Sindh Service Tribunals Act, 1973, is directed against the original impugned order dated 29.8.2003 passed by respondent No. 2 whereby major penalty of reduction in rank was imposed upon appellant and appellate order dated 18.10.2003 passed by respondent No. 1 rejecting appellant's departmental appeal.
2. Relevant facts for the purpose of disposal of the instant appeal are that appellant joined police department as constable and gradually promoted upto the rank of Sub-Inspector in the year, 2001.
Lastly, he was posted at Police Station Saddar Investigation Karachi, when on 10.4.2003 he was placed under suspension by the Capital City Police Officer, Karachi, pending inquiry. He was served with a show-cause notice dated 11.4.2003 issued by respondent No. 2, alleging that:- "On 6.4.2003, you arrested Muhammad Saeed Khan in case FIR No. 61/2003 u/s. 283 PPC and locked him up for a few minutes. Later you took him our of the lock-up and handcuffed and tied him up with a window for few hours. You tortured him due to which his hand was injured vide MLO letter No. 1332/03 dated 7.4.2004."
In his reply, appellant denied the allegation and explained his position, which was not found satisfactory and by order dated 29.8.2003 he was awarded major penalty of reduction in rank. He filed departmental appeal which vide order/letter dated 18.10.2003 was rejected. He has now approached this Tribunal for setting aside the impugned orders.
3. In support of appeal, learned counsel for the appellant argued that a case FIR No. 61/2003 u/s. 283 PPC was registered at P.S. Saddar on behalf of State by ASIP Zahid Hussain against accused Muhammad Saeed and two others on 5.4.2003. The investigation of the same was handed over to SIP Muhammad Aslam Jagirani. Appellant who at the relevant time was posted as Incharge Investigation Branch, on receipt of information apprehended accused Muhammad Saeed in presence of SIP Muhammad Aslam Jagirani on 6.4.2003 at 20.30 hours from near Compound Gali at Shahrah-e-Iraq, Saddar, Karachi and such Mushirnama was prepared wherein appellant acted as Mashir. The apprehended accused was brought at P.S. And such entry in the daily diary at Sr. No. 32 at 21.15 was made and accused was confined in lockup. He stated that offence was bailable as such on the same dated at 23.00 hours one Syed Arif Hussain Shah furnished surety for accused Muhammad Saeed who as per daily diary entry No. 36 was released. He submitted that said accused was simply locked up but neither he was handcuffed nor tied up with a window nor was tortured by the appellant as is evidence from daily diary entry No. 20 of dated 7.4.2003 whereby said Muhammad Saeed was referred to Hospital for medical check-up, treatment and certificate. Learned counsel stated that in the complaint made by said Muhammad Saeed he had not named the appellant but stated that it was SIP Shaukat Abbas who maltreated and tortured him.
4. Learned counsel for the appellant also attacked the impugned orders on legal grounds. He submitted that as per show-cause notice, the regular inquiry was dispensed with but subsequently Mr. Manzoor Ahmed Mughal, Senior Superintendent of Police, Investigation, was nominated as Inquiry Officer to probe the matter, who recorded statements of 9 witnesses but none of them implicated appellant, therefore, the inquiry report by no means can be used as a piece of evidence against appellant. He also added that no final show-cause notice which is a mandatory requirement was issued to appellant and that major penalty of reduction in rank imposed upon appellant is also in violation of Rule 29 as no specific period has been mentioned, In support of his contentions, learned counsel has relied upon, (1) NLR-1984 TD 101, (2) 1993 PLC(C.S) 698, (3) 1995 PLC(C.S) 349, (4) 1997 TD (Service) 274, (5) 2000 PLC(C.S) 270, (6) PLJ 2003 TRC (Service) 66, (7)
2003 TD (Service) 247, (8) 2003 PLC(C.S) 353, (9) 2003 PLC(C.S) 395, and (10) 2003 PLC(C.S) 1445. ,5. In rebuttal, learned Asstt. A.G. Argued that appellant by misusing his official powers maltreated, tortured and handcuffed the apprehended accused, which fact has been fully established in an inquiry conducted by independent, impartial and responsible officer namely Mr. Manzoor Ahmed Mughal, Senior Superintendent of Police, Investigation, Saddar, Karachi, who in his report found the appellant guilty of the charge. She stated that full, fair and proper opportunity to defend himself was provided to the appellant but he failed to rebut the charge and was thus rightly awarded major penalty of reduction in rank which calls for no interference and may be maintained.
2. We have carefully considered the above submissions and minutely perused the case papers.
Appellant was proceeded with departmentally on the complaint made by Muhammad Saeed who was apprehended in crime No. 61/2003 u/s. 283 PPC registered at Police Station Saddar and was brought at P.S. Saddar where he was allegedly handcuffed, tied up with a window and was also torture due to which his hand was injured, in the said complaint he named SIP Shaukat Abbas who tortured him. Similarly, in the daily diary entry No. 20, dated 7.4.2003. Where under the said Muhammad Saeed was referred to Hospital for treatment and certificate, the name of SIP Shaukat Abbas has been mentioned as a person who caused injuries to Muhammad Saeed,, but surprisingly enough SIP Shaukat Abbas has neither been proceeded with departmentally nor any other action was taken against him nor even it has been clarified as to why SIP Shaukat Abbas was not put to task. Besides, in the instant case neither any preliminary inquiry was conducted to collect the material against the appellant nor any regular inquiry was conducted in order to arrive at a proper conclusion as to whether appellant was guilty of the charge with which he was charged, It is pertinent to mention here that as per show-cause notice issued to the appellant the regular inquiry was dispensed with. However, subsequent thereto, Mr. Manzoor Ahmed Mughal, Senior Superintendent of Police, Investigation, Zone-1, Karachi was nominated as Inquiry Officer. As per inquiry report dated 15.8.2003, statements of 11 witnesses were said to have been recorded, and as it appears from the concluding para/findings, none of the witnesses implicated the appellant. The Inquiry Officer concluded that appellant influenced the witnesses in giving statements in his favour to the effect that no alleged torture was committed on the complainant, although in reality he tortured the complainant, which fact is evidence from the ML Report No. 13332/03 of complainant.
This conclusion is based upon surmises and conjectures and by no means the same can be termed as legal, proper and justified conclusion for the sample reason that none of the witness said a single word against the appellant.
3. In the absence of any evidence worth credence, we are of the firm opinion, that appellant cannot be held guilty of the charge as mentioned in the show-cause notice. Therefore, the impugned orders based upon such imaginary inquiry report are not sustainable.
4. Accordingly, the appeal is accepted and the impugned orders original as well as appellate are set-aside. Parties to bear their own costs.
5. Announced in open Court.
Given under out hands and seal of the Tribunal, this 6th day of August, 2005.