' AZAD MUHAMMAD AWAN (MEMBER-II).--- This appeal is directed against the orders, dated 30-7- 2005 passed by respondent No,2 whereby the appellant was held guilty of misconduct and was awarded the punishment of reduction in rank from Inspector to Sub-Inspector, and the order dated 6-2-2006 passed by respondent No,1 whereby the punishment of reduction in rank was converted into reduction in pay by one stage.
2. Briefly stated the facts giving rise to the present appeal are that the appellant was served with a show-cause notice with the following allegations:-- "You Inspector Muhammad Amir No,S/32 while posted as S.H.O. Police Station Wan Bhachran, District Mianwali did not perform your official duty in proper and appropriate manner. On 10-6- 2005 you allowed the registration and investigation of a case by A.S.-I. Fakhar Zaman under section 10(2), Z.H.O., in which male and female couples were found indulging in Zina (with consent). The said A.S.-I. Was not competent to register the case F.I.R. No,83 dated 10-6-2005 under sections 10(2), 13/14, Z.H. Ordinance 156-B of Cr.P.C. Police Station Wan Bhachran on the ground that according to newly added section 156-B of Cr.P.C. "if a woman is involved in Offence of Zina Hudood Ordinance 10(2) no Police Officer below the rank of Superintendent of Police shall investigate such offence nor shall such accused be arrested without permission of the Court". You neither visited the spot nor verified the investigation. You were bound to immediately return the case file to S.P.
Investigation, Mianwali for investigation and arrest of woman. In this way you have been found guilty of negligence, carelessness and inefficiency amounting to severe disciplinary action under Punjab Removal from Service (Special Powers) Ordinance, 2000."
3. The authority passed the orders that the circumstances of case were such that it was expedient to dispense with the regular inquiry through an Inquiry Officer. The appellant was directed to submit reply to the show-cause notice within stipulated period. In his reply to the show-cause notice the appellant maintained that on the complaint of one Ghulam Yasin, A.S.-I. Fakhar-uz- Zaman has sent the complaint to the police station on the basis of which F.I.R. Was recorded by Saif Ullah M.H.C. He stated that the investigation was carried out by the said A.S.-I. Who found the accused guilty and arrested them and sent them to judicial custody. Thereafter, the file was produced before me and incomplete challan was prepared. The authority did not find favour with the explanation and awarded the above said punishment of reduction in rank from Sub-Inspector to A.S.-I. As indicated above. The appellant filed an appeal which was decided on 6-2-2006 by respondent No,1 who maintained that there was no ulterior motive with the appellant and as such the punishment of reduction in rank was converted in reduction in pay by one stage, hence the present appeal.
4. Respondent No,2 filed parawise comments. However, despite numerous adjournments respondent No,1 failed to submit any comments.
5. I have heard the arguments of the learned counsel for the appellant, the learned District Attorney who was assisted by Naik Muhammad, Inspector Legal and have gone through the record. The learned counsel for the appellant contended that as was evident from the copy of the F.I.R.
Appearing at page 21 of the appeal, the complaint was sent to the police station by A.S.-I. Fakhar- uz-Zaman and the F.I.R. Was recorded by Sail' Ullah M.H.C. He referred to the Roznamcha D.D. No,34, dated 10-6-2005 which showed that the appellant along with other officials had left the police station at 3-05 during night for arrest of the accused in case under section 302/34, P.P.C. As per D.D.
No,19, dated 10-6-2005 the appellant returned to the police station at 5-50 p.m. On the said date.
The F.I.R. Was recorded at 10-15 a.m. On the basis of these documents it was maintained that the appellant being S.H.O. Was not present at the police station when the complaint was received and the F.I.R. Was recorded. The investigation was not carried out by him which fact was admitted by Naik Muhammad IL. This fact was evident from contents of the show-cause notice also. The learned counsel referred to the orders of the District Police Officer, dated 11-6-2005, copy appearing at page 10 of the file whereby the D.P.O. Directed the S.H.0. To cause arrest of the accused. Similar was the endorsement of the D.S.P. He referred to the order of the S.P. Investigation dated 11-6-2005, copy appearing at page 11 whereby the said Officer has also directed to immediately arrest the accused. The learned counsel contended that the charge was that the appellant had violated section 156-B of the Cr.P.C. Which provided that no Police Officer below the rank of S.P. Shall investigate the case nor such accused be arrested without permission of the Court. It was maintained that when this provision existed how on earth the D.P.O. And D.S.P. Directed the appellant to arrest the accused and the S.P. Investigation passed the similar order. When the appellant had not registered F.I.R., had not carried out the investigation and had not arrested the accused there was no justification to frame charge against him and to pass punishment.
6. Naik Muhammad, Inspector Legal stated that as per the record the case was registered on the complaint of Fakhar-uz-Zaman A.S.-I. He had carried out investigation and arrested the accused.
This would show that no part was played by the appellant.
7. The learned counsel for the appellant contended that if at all there was a violation of 156-B, Cr.P.C. It was under the orders of the D.P.O., D.S.P. And S.P. Investigation but none of them was proceeded against.
8. After hearing the arguments and going through the record I find substance in the contention of the learned counsel for the appellant. There was no documentary evidence on the basis of which the authority thought it expedient to dispense with the inquiry. Resultantly, I accept the present appeal and set aside the impugned orders.