MAZHAR MUNIR (MEMBER).-Mr. Mushtaq Ahmad was serving as Junior Clerk. He was transferred from the post of Reader to the Court of Mr. Najeebullah Malik, Magistrate 1st Class to the Court of Mr. Manzoor Hussain Magistrate 1st Class, in place of Muhammad Akram. He reported his arrival in the Court of Mr. Manzoor Hussain on 22-8-1975. The charge of Ahlmad was not transferred to the appellant on that date or the week thereafter and Muhammad Akram continued holding the charge of the post of Ahlmad even after be had joined as Ahlmad to Mr. Najeebullah Malik, Magistrate 1st Class. In one case Mirza Mukhtat Baig v. Nazir Ahmad the statement of Mirza Mukhtar Baig was recorded partly on 8-8-1975 and partly on 28-8-1975 in the Court of Mr. Manzoor Hussain.
Mirza Mukhtar Baig thereafter applied for a copy of the statement and a transfer application was also filed by him in the Court of Assistant Commissioner, Sadar on 28-8-1975, which was adjourned till 4-9-1975. Mr. Mukhtar Ahmad was transferred and transfer application was declared infructuous. When the file was returned to the Court of Mr. Nasrullah Cheema, Mirza Mukhtar Baig recorded his statement afresh insisting that he had made a statement earlier in this behalf in which he had allegedly failed to nominate the Respondent Nazeer Ahmad. Respondent Nazir Ahmad took exception to the complain--ant's statement. An enquiry was therefore, ordered. Mr. Manzoor Hussain, Magistrate 1st Class stated that he had recorded the statement of Mirza Mukhtar Beg. As a result of the enquiry, Mushtaq Ahmad Ahlmad was removed from service. His appeal to Deputy Commissioner was dismissed.
2. The parties have been heard. The counsel for the appellant has urged the following points:-
(i) That the appellant is responsible only for those documents which are indicated in the Index and in this connection, he has referred to the instructions of the High Court. The Counsel has argued that Muhammad Akram the predecessor of the appellant had not handed over the record even on 28th August. Written complaints had been filed by the appellant that Mohammad Akram had not handed over the record and the Index of the case under dispute was handed over by Mohammad Akram on 28-10-1975,
(ii) There is no direct evidence on record except that of Mohammad Akram and in this connection a report had been sent by the appellant against Mohammad Akram.
(iii) There has been discrimination in this case in that Mohammad Akram who, originally, was responsible for the documents has not been touched at all and in the case of Siraj Din, Reader, only stoppage of two increments have been ordered.
(iv) The appellant has submitted an Affidavit of the Naib Court regarding the disappearance that Siraj Din was responsible and no counter Affidavit has been filed to rebut this Affidavit and, therefore, the Affidavit was to be considered as true; and
(v) No order has been passed by the Deputy Commissioner dispensing with the enquiry or giving reasons for dispensing with the enquiry.
3. We have seen the record and the Index prepared by Mohammad Akram on 28-10-75 which does not show the documents in dispute and since this Index has been prepared by Mohammad Akram it means that copies of the statement were handed over to Mushtaq Ahmad. This raises doubt as to who Mohammad Akram, Mushtaq Ahmad or Siraj Din is reason--sible for removing the statements, from the record. The appellant is, therefore given the benefit of doubt and the appear is allowed and the order of dismissal set aside.
Appear allowed.