' SALIM GUL SHAIKH (MEMBER).--- This appeal has been filed under section 4 of the Service Tribunals Act, 1973 against the impugned order, dated 12-3-2005 whereby major penalty of removal from service has been inflicted on the appellant. The appellant preferred departmental appeal, dated 28-3-2005 against this decision which has remained undecided.
2. Briefly, the facts leading to the filing of this appeal are that the appellant joined the F.I.A. As constable on 10-4-1989 and was promoted to the rank of Assistant Sub-Inspector on 31-12-2003.
While he was serving as A.S.-I. At F.I.A. CBC-II, he was placed under suspension and inquiry was ordered against him on 14-10-2004 through Enquiry Officer Mr. Ashraf Zubair Siddiqui on the charges conveyed to him through charge-sheet which are as under:--
(i) That on 1-9-2004 Pax namely Miss Shahroze daughter of Liaquat Ali holding Pakistani Passport No,K-212218 issued in the name of one Zohra Warraich daughter of Imtiaz Ahmad Warriach arrived/deported from USA by Flight No,LX-246 along with a notice from US Department of Justice, Immigration, Naturlaization Service mentioning the reason of deportation as "Inadmissible Alien".
(ii) During interrogation, she disclosed that the travel documents in the name of Miss Zohra Warraich were provided by an agent namely Muhammad Hanif alias Babu against payment of Rs,8,00,000. Accordingly a case was registered vide F.I.R. No,225 of 2004 of F.I.A. Passport Cell, Karachi.
(iii) During the course of investigation, it transpired that A.S.-I. Ali Nawaz Soomro in complicity with accused Muhammad Hanif alias Babu has illegally assisted the lady in proceeding abroad on woman changed Passport No,K-212218 issued in the name of Miss Zohra Warraich daughter of Imtiaz Ahmad Warriach by clearing from immigration at the time of her departure from Pakistan by Flight No,LX-247 dated 27-8-2004.
(iv) The above act on the part of A.S.-I. Ali Nawaz Soomro amounts to misconduct within the meaning of section 2(b) of Removal from Service (Special Powers) Ordinance, 2000 punishable under section 3 of the said Ordinance.
3. The appellant requested for copies of relevant record vide letter dated 21-10-2004 which was denied to him and subsequently, he submitted his reply to the charge-sheet on 14-1-2005 in which he vehemently refuted the charges levelled against him. Finding his reply as not satisfactory, the appellant was served a show-cause notice, dated 23-2-2005 stating the charges having been established against him during the inquiry, he should submit his reply within 10 days as to why major penalty should not be imposed on him. A copy of the inquiry report was also supplied to him.
The appellant submitted his reply dated 3-3-2005 again vehemently refuting the charge against him. After granting him personal hearing on 12-3-2005, major penalty of removal from service was passed by the respondent which was received by the appellant on 15-3-2005. The departmental appeal having remained unresponded, the appellant filed the instant appeal before the Tribunal to seek redressal of his grievance.
4. During the hearing both sides stated that they had nothing more to add to what they have submitted by way of written material that is placed on record. The learned counsel for the appellant in his written arguments assailed the impugned order by raising a number of legal questions. He pointed out that the appellant had been found guilty on the basis of statement of co-accused without any positive evidence. In this connection, he cited the ruling 1984 PLC (C.S.)
1653. It was further pointed out that the Enquiry Officer did not either call or cross-examine material witnesses namely, Muhammad Hanif alias Babu or the lady passenger Miss Shahroze Liaquat.
Since according to the learned counsel this was a serious infirmity, therefore, the imposition of major penalty under such circumstances was not called for. In this context, he relied on the ruling in the case reported in 2005 KLR L&SC 590. It was further pointed out that the appellant was not provided copies of the record requested by him which materially prejudiced his right of reasonable self-defence. In this context reliance was placed in the case reported in 1981 PLC (C.S.) 263 and 2004 PLC (C.S.) 959. Another infirmity pointed out by the counsel for the appellant related to the right to call for witnesses and the opportunity to cross-examine witnesses who had deposed against him. In this connection ruling in the case reported in 1997 PLC (C.S.) 694 was cited by the learned counsel. Another weakness pointed out by the appellant's side was the fact that respondent No,2 was not the appointing authority within the meaning of section 2(aa) of the Removal from Service (Special Powers) Ordinance, 2000, which deprived the appellant of the right of appeal to the appellate authority as such the power exercised by respondent No,2 was coram non judice 2003 SCMR 1718=2003 PLC (C.S.) 1304. The learned counsel for the appellant, therefore, prayed that the impugned order may be set aside as void.
5. The learned Standing Counsel, on the other hand, forcefully repelled the arguments of the appellant. He argued that departmental inquiry against the appellant was held in accordance with the provisions of the said Ordinance and the inquiry conducted by the Enquiry Officer conclusively established the charges against the appellant. He maintained that the appellant was provided full opportunity during the inquiry proceedings for his defence, including the opportunity to cross- examine witnesses, which the appellant did not avail. The learned Standing Counsel further pointed out that oral evidence against the appellant was available in the form of statement of Inspector Jalal Khan, S.-I. Imtiaz Ali Memon, S.-I. Muhammad Shoaib and A.S.-I. Nazia Saleem together with documentary evidence such as deportation report, passport and other connected documents directly implicating Muhammad Hanif alias Babu and his accomplice is available in record. The learned counsel also clarified that the respondent No,2 had rightly exercised the powers in terms of Establishment Division's Notification, dated 17-6-2000 read with F.I.A. Hqrs. Notification dated 7-8- 2000, therefore, the right of appeal of the appellant had not been prejudiced in any manner.
6. We have heard the arguments from both sides and have very carefully perused all record placed before us. In the first place it is relevant to place on record that the case filed by the department (F.I.R. 225 of 2004) against lady passenger Miss Shahroze daughter of Liaquat Ali and Muhammad Hanif alias Babu was dismissed by the Civil Judge and Judicial Magistrate on the ground that the prosecution had failed to establish the charges. Interestingly, the department did not consider it necessary to implead the name of the appellant, who is alleged to be an accomplice of Muhammad Hanif alias Babu, in the said case either as co-accused or even as a witness. It is also important to consider that the investigation report prepared by Inspector Jalal Khan for the purposes of this case also does not make a single reference about the involvement of the appellant. With this background, we propose to examine the legal questions that have been raised in this appeal. At the airport.
7. The entire case against the appellant is based on a statement reportedly made by the main accused, Muhammad Hanif alias Babu, saying that the appellant had provided assistance in getting the lady passenger cleared from immigration. It may be noted that Muhammad Hanif is one of the main accused in this case and therefore, placing full reliance on his statement alone should not be considered sufficient to establish the culpability of the appellant. In this connection, other corroborative evidence was also required. We have carefully perused the citation 1984 PLC (C.S.) 1653 given by the learned counsel for the appellant in support of his argument. We consider the circumstance in the cited case to be distinguishable from the case in hand because in the former the evidence placed was of "self-confession" which is not the case here. But nevertheless, the fact remains, reliance cannot be placed solely on the evidence of accused particularly when the same accused i,e, Muhammad Hanif, while recording his evidence under section 161 of Cr.P.C.
Before the Investigating Officer, Inspector Jalal Khan, has not implicated the appellant.
8. The respondents, however, maintain that Muhammad Hanif alias Babu did implicate the appellant. Be that as it may, we find that no immigration official on duty on that day, including S.-I.
Imtiaz Ali Memon, S.-I. Shoaib, the Group Incharge on duty, and A.S.-I. Nazia Saleem who actually handled the passport of the said lady passenger for clearance, has implicated the appellant in statements recorded by Inspector Jalal Khan which is a matter of record. In view of this evidence, therefore, we consider argument of the respondents as weak.
9. In view of the foregoing discussion, we have no hesitation in setting aside the impugned order and order that the appellant may be reinstated into service from the date of his removal vide impugned order with all consequential back-benefits.