1. ABDUL QADBBR CHAUDHARY (CHAIRMAN).-The appellant has assailed the order of dismissal from service passed by the Senior Superin--tendent of Police, Quetta on 8-2-1982.
2. The facts in brief are that the appellant entered the Police Service in 1958, and he was serving as S.H.O. In Sariab Police Station when an F.I R. No. 86 of 1980 was lodged on 2-8-1980, in respect of the murder of Maulvi Abdul Qadir at the hands of two persons namely Ghulam Hussain and Rahim Khan by means of gun shots. Ghulam Hussain alongwith weapon of offence was arrested at the spot. The co-accused Rahim Khan was arrested on the night of 21/22 August, 1980, and from his custody, a pistol was also recovered. It is the case of the appellant that incomplete challan was submitted to the Prosecution Branch for its examination when on November, 1980, the appellant was summoned by a Brigadier and some questions were put to him. The Superintendent of Police on 17-12-1980, in exercise of authority under rule 8 (1) A of the Police Disciplinary Rules, 1975 read with Baluchistan Efficiency and Disciplinary Rules issued a charge-sheet accompanied with the summary of allegations and appointed one Muhammad Tufail, D. S. P., Quetta as the Inquiry Officer.
3. The summary of allegations reads as under :------ "(1) You had failed to produce the apprehended accused persons willing for confession before a competent Magistrate for recording confessional statements under section 164, Cr. P. C.
(2) You had failed to submit the medical certificate alongwith the challan,
(3) You had failed to prepare the sketch of place as required under the law/Police Rules.
(4) You had failed to seal pistol, weapon of offence recovered from accused Rahim Khan and send to Ballistic Expert for opinion.
(5) The name of Malik Farooq Hussain E.A.C. As a witness for record--ing statement under section 164, Cr. P. C. Has been deleted from the challan form with the case file. You are responsible for this gross variation in original duplicate copy of the challan.
4. The appellant submitted his reply and final show-cause notice was issued by the Senior Superintendent of Police on 23-1-1982, in which it is stated that the allegation of non-preservation at spot of the pistol/weapon of murder stands established. The reply was submitted by the appellant. The dismissal order was passed on 8th February, 1982, and it was held that charge No. 4 stood proved against the appellant. Para. 4 of the order is relevant and it reads as under :- "He has further exonerated the accused of the alleged charges given against S. No. 1, 2, 3 and 5 of the charge-sheet. The only allegation, as per enquiry record established against the accused is non---preservation in time of the pistol/weapon of murder, recovered from the accused Rahim Khan and also its non-submission in time for analysis to the Ballistic Expert, Karachi,."
5. The appeal submitted to the D.I.-G. Was dismissed. Hence the present appeal.
6. We have heard the learned counsel for the appellant. None appeared for the respondents.
7. The learned counsel for the appellant has raised the following contentions :-
(a) The inquiry conducted by a Brig. Is contrary to the rules.
(b) No order directing the dismissal of the appellant can be made by the Governor.
(c) The order of Senior Superintendent of Police is not an independent order it was passed on the report of the Brigadier and the order of dismissal passed by the Governor. The charge could not be made unless it was one for misconduct which is contradistinction to inefficiency.
(d) No witness was examined nor any right of cross-examination was afforded to the appellant.
(e) Copy of the report of Inquiry Officer was not made available to the appellant.
(f) The appellant was found guilty in respect of charge No. 4, this charge does not amount to misconduct.
(g) It is a case of no evidence and sentence of dismissal is too severe.
8. As regards the inquiry conducted by a Brigadier the appellant in para. 2 of the appeal has referred to these facts ; but it was not admitted by the respondents and they stated that as regards the so- called inquiry by the Brigadier and order by the Governor are concerned the same are not admit-- ted for want of knowledge in substance the allegations made in the appeal have been denied by the respondents. It is also denied by the respondents that order of dismissal was biased by any external influence. In para. 5 of the order of dismissal it has been stated that in pursuance of the Governor/Martial Law Administrator, Zone "D", Baluchistan Quetta's order dated 12-11-1980, the appellant is dismissed from service with immediate effect. Thus the contention of the respondents in the written statement is belied by their own document. The order of dismissal itself shows that the Senior Superintendent of Police did not apply his own mind to the facts of the case, but in passing the impugned order, was influenced by the order dated 12-11-1980. The denial of the respondents about the inquiry conducted by a Brigadier is contradicted by the summary of allegations appended with the charge-sheet. It clearly mentions that show--cause notice has been issued to him on the perusal of the inquiry carried out by the Provincial Martial Law Inspection Team, Baluchistan. The letter mentioned in para. 5 of the dismissal order stated to be issued by the Governor on 12-11-1980, and thereafter in December, 1980; the appellant was charge-sheeted. Thus the contention of the appellant that the order directing the inquiry and thereafter the dismissal of the appellant was based on extraneous consideration stands proved. The incident took place on 2- 8-1980, and according to the appellant interim challan was submitted on 31-8-1980. The respondents did not choose to proceed against the appellant for more than three months. It is very strange that evasive reply has been filed by the respondents in spite of the fact that their own documents proved the contention of the appellant. They choose it proper to say that these assertions are not admitted for want of proof by the appellant. It can, therefore, be safely said that the order of Senior Superintendent of Police is not an independent order. He has not applied his own mind to the facts of case., As regards the contention of the appellant on point No. 4 ; the definition of misconduct as contained in the Baluchistan Police Disciplinary ,Rules, 1975 is as under :- "Misconduct" means conduct prejudicial to good order or discipline in the Police Force ; contrary to Government Servants Conduct Rules or unbecoming of a Police Officer and a gentleman, any commission or omission which violates ; any of the provisions of law and rules regulating the function and duty of a Police Officer to bring or attempt to bring political of other outside influence directly to bear on the Government or any Government Officer in respect of any matter relating-_ to the appointment, promotion, transfer, punishment, retirement or other condition of service of a Police Officer."
9. The appellant was awarded major punishment which may be awarded when a Police Officer is guilty of misconduct. The charge-sheet given to the appellant is also vague. He has been charged of inefficiency, miscon--duct and corruption. The proposed action has also not been mentioned in the charge-sheet. The charge levelled against the appellant in the summary of allegations was that he had failed to seal pistol/weapon of offence recovered from accused Rahim Khan and send to ballistic expert for opinion. It is stated in the appeal by the appellant that when the accused Rahim Khan was arrested and a pistol was recovered from him the inventory was prepared by Chaudhary Abdul Ghani, City Inspector which was signed by the appellant as a witness. The pistol was sealed in parcel on 31-8-1980. A request was made by the appellant to the Prosecution Branch that the pistol recovered from Rahim Khan be sent to forensic expert before challan could finally be passed by the prosecution branch. The papers were requisitioned by the Martial Law Authorities. No further action was thus taken in respect of the case. This assertion has been made in para. 2 of the appeal. The respondents did not care to reply to these allegations. It is a rule of pleadings that a fact which-has not been denied is supposed to have been admitted.
10. "The charge No. 4 mentioned in the summary of allegations was that the appellant failed to seal the pistol/weapon of offence recovered from Rahim Khan and sent it to ballistic expert for opinion.
11. After the inquiry, final show-cause notice was issued wherein it is stated that allegation of non- preservation at spot of pistol/weapon of murder stood established. In the dismissal order it has been stated that the appellant was found guilty of non-preservation in time of the pistol/weapon of murder recovered from accused Rahim Khan and also its non-submission in time for analysis to the ballistic expert. It is, therefore, clear that the respondents have taken different stands at different times. For the first time they charged the appellant for not sealing the pistol and as also he did not send the same to ballistic expert. In the final show-cause he was charged for non- preservation at spot of the pistol/weapon of murder, but in the order of dismissal he was accused for non-preservation in time and also its non---submission in time for analysis to the ballistic expert. It is, therefore, clear that the initial charge that he did not seal the weapon and he did not send it to the ballistic exp6rt was not established. In the final show--cause notice the allegation that he did not send the weapon to ballistic expert was also not mentioned and thus he was exonerated of this charge also. The contention of the appellant that he sealed the parcel and sub- -mitted it to the prosecution branch for submission to the ballistic expert has not been denied. This charge is not established against the appellant. He has been dismissed on the gound that he did not preserve in time the weapon of offence and did not submit in time to the Ballistic Expert, Karachi. In para. 2 of the appeal the appellant specifically stated that the pistol recovered from accused Rahim Khan was sealed into parcel on its recovery which was effected on 21/22 August, 1980. An incomplete challan was submitted on 31-8-1980, and at the time request was made by the appellant for sending the pistol to forensic expert. The respondents did not care to reply to these facts. The appellant has again agitated this factual position in ground (L) of the appeal and the respondents have admitted that no doubt that the mention of the sealed parcel has been made in daily diary but stated that no such parcel was then in existence but then raised presumption that if it had been sealed it would have been forwarded to the ballistic expert. But the fact remains that the contention of the appellant on this point has not been denied. The definition of misconduct in Baluchistan Police Rules has been mentioned above. At the most the appellant can be held guilty for "any commission or omission which violates any provision of law and rules regulating the function and duty of a Police Officer." Now we have to see whether the appellant has done anything which amounts to commission or omission.
12. The contention of the respondents is that the law relating to the submission of the case property/arms to the ballistic expert is contained in section 510, Cr. P. C. With detailed procedure for their perseverance at spot before the witnesses is given, in rule 25.15 (3) and 25.33 (7) of the Police Rules, 1934. Section' 510, Cr. P. C. Is to the effect that the report of an expert may without calling him as a witness be used as evidence in any inquiry, trial or proceedings under this Code. This rule has nothing to do with the duty of a Police Officer. Now we turn to Police Rules referred to above ; which are reproduced below. :-- , "25.15--(1) ... ... ... ...
(2) ... ... ... ...
(3) In connection with the examination of arms and ammunition, arsenal officials should only be required to report, and if absolutely essential, give evidence (i) on technical factory points, e.g., whether a weapon is in serviceable condition, whether a particular part of .a weapon is factory or mistri made, and the like ; (ii) on the type of ammunition intended to be used (not can be used as experience shows that there is practically no limit in this respect) in a particular weapon ; and (iii) whether a cartridge has been reloaded, nature of load, and the like. Arsenal experts shall not be used for elaborate and definite sworn testimony as to whether a particular missile was or was not fired from a particular weapon. Should districts desire opinions of this nature they may apply to the criminal investigation department for assistance but such. Refer--ences should be confined to case of major importance only.
13. 25.33--(1)--------------
(2) --------------
(3) --------------
(4) --------------
(5) --------------
(6) --------------
(7) He shall remove, mark with a seal, and seal up all clothing not adhering to, or required as a covering for, the body, all ornaments and anything which may have caused or been concerned in the death of the deceased and shall make an inventory thereof. In the inventory shall be described the position in which each thing was found and any blood stain, mark, rent, injury or other noticeable fact in connection with such thing. The number and dimensions of such stains, marks, rents, injuries, etc. Shall also be given in the inventory. `A counterpart of the mark and seal attached to such thing or to the parcel in which it has been enclosed shall be entered in, or attached to, the inventory "
14. In these two rules nowhere it is mentioned that an Investigating Officer is bound to submit weapon of offence within a fixed period. The respondents have not mentioned the period during which the weapon has to be sent to the ballistic expert. It is also not stated as to how the appellant was negligent in non-preservation in time of the pistol. The appellant has stated that the weapon was recovered from accused Rahim Khan on the night of 21/22 August, 1980. The inventory was prepared and the pistol was sealed. If at the time of arrest of the accused and recovery of the weapon, the pistol was sealed then where is the question of delay. It is also relevant to mention here that the recovery was effected by Chaudhary Abdul Ghani, City Inspector who arrested the accused and prepared the inventory. The appellant signed the memo. As a witness. It was the duty of the Police Officer who arrested the accused and recovered the weapon to seal the weapon into parcel. It has not been shown that investigation was handed over to the City Inspector who arrested the accused. However whatever be the position the fact retrains that challan was submitted on 31-8-1980, i.e. After about 9 days of the arrest of the accused Rahim Khan and alongwith submission of challan a request for sending the weapon to ballistic expert was made.
15. The respondents have not stated when the pistol was sent to the expert. The delay occurred in the Prosecution Branch cannot be attributed to the appellant. If the appellant had committed the delay of days in making a request for bending the weapon to ballistic expert then it was the duty of the respondents to show that they had violated any law or the police rules. In view of this position, the order of dismissal passed against him is not warranted by law.
16. The impugned order is also liable to be struck down as the copy of the inquiry report was not supplied to the appellant. It is not a mere formality but it was necessary to' have the appellant a chance to reply to the finding of the inquiry committee. It is observed in Syed Mir Muhammad v. N.- W. F P. Government through Chief Secretary (PLD19819 C176) that a proper explanation of the accused can only be furnished if he is supplied a copy of the inquiry report so as to enable him to offer his explanation with regard to the adverse findings, if any, recorded against him by the Inquiry Officer and the action proposed to be taken against him on that basis.
17. In the result, the appeal is accepted, the order of dismissal dated 8-2-1982, passed by the Senior Superintendent of Police dismissing the appellant from service is set aside and the appellant is restored to the service w.e f. 8-2-1982, with all benefits admissible to him under the rules.. As the appeal has not been contested there would be no order as to costs.
18. The judgment was sent to Mr. Sultan Muhammad Nasir, ex-Member. He did not sign it and did not return the same which has been procured from the office of Additional Commissioner, Quetta on 28-2-1983.