' SALIM GUL SHAIKH (MEMBER).--- This petition is being heard after it has been remanded to us by the Honourable Supreme Court vide its judgment dated 21-11-2005 setting aside the judgment of the Tribunal dated 8-3-2004 with the direction "to decide the appeal of the petitioner afresh in accordance with the law, after the decision of criminal case against him".
2. Briefly, the, facts of the case are that Mr. Muhammad Shakeel, S.-I., in the Intelligence Bureau (hereafter to be mentioned as IB)was arrested in the year 2000 and remanded to judicial custody on the charges that he had harassed and extorted money from local people during his posting at the I.B. Office at Mithi. The F.I.R. Was lodged against him by his own department with the Police at Mirpurkhas. The history of this case is traceable to a story appearing in a Sindhi language newspaper "Kawish" on 26-2-1997 in which it was alleged that officials of a State Security Organization were harassing citizens of Umerkot and extorting money from them through coercion and blackmail. This story was also picked up by the English language newspaper "The News" two days later on the 28th of February, 1997. These stories led to investigations by the security agencies.
3. Be that as it may, after receiving credible evidence, the department decided to take action and the competent authority served the appellant with a charge-sheet and at the same time also appointed an Inquiry Committee with Mr. Khalid Ahsaan, Director I.B. At Quetta as Chairman to undertake a formal inquiry into the charges. The charge-sheet served on him contained six charges of different nature. At the time when the Inquiry Committee started its proceedings, the appellant was under detention having been arrested in the case in which the F.I.R. Was lodged against him. Inspector Ghulam Muhammad Brohi who was incharge of the Mithi Office was also included in the investigations by the Inquiry Committee because of his alleged involvement in some of the charges along with the appellant. (He was however not cited as co-accused with the appellant in the F.I.R. Case). After completing the inquiry, the chairman of the committee submitted his findings to the competent authority who after adopting the necessary procedure i,e, issuance of show-cause notice etc., decided to impose the major penalty of compulsory retirement on the appellant while the co-accused Inspector Ghulam Muhammad Brohi was given the minor penalty of stoppage of increments. The appellant feeling aggrieved appealed vainly against the impugned order dated 8, February 2002 and the corrigendum of 9, February, 2002 first before the departmental authorities and then with the Tribunal. Aggrieved against the judgment of F.S.T., the appellant filed appeal in the Supreme Court. The Honourable Supreme Court heard his appeal and remanded the case back to the Tribunal with the direction mentioned in the first paragraph of this judgment. In the meanwhile, the criminal case, which had been filed against the appellant, was dismissed by the Anti-Corruption Court at Hyderabad on the grounds of jurisdiction.
4. During the hearing, the learned counsel for the appellant forcefully assailed the entire proceedings against the appellant as illegal and void. His arguments were predicated on three main grounds: (i) Proper procedure was not followed while conducting the inquiry, (ii) there was an element of discrimination while awarding penalty, and (iii) there was no criminal proceedings pending against the appellant.
5. While defending his contention about the defective inquiry procedure, the learned counsel for the appellant pointed out that the statement of the complainant Mr. Muhammad Malook Rehmu, and his witnesses were not recorded in the presence of the appellant. He further maintained that no opportunity was given to the appellant to cross-examine the complainant. The Inquiry Officer himself cross-examined the main complainant which was neither warranted nor legal. The learned counsel for the appellant went on to say that the appellant was deprived of his valuable right to cross-examine which resultantly seriously prejudiced the case of the appellant. The learned counsel for the. Appellant further contented that the Inquiry Committee was unable to prove the charges against the appellant. In support of his argument about defective inquiry process, the learned counsel placed reliance on 1993 SCMR 603; 1993 SCMR 105 and 2004 PLC (C.S.) 328 wherein it has been held that proper procedure for holding an inquiry against an accused official was essential particularly in cases where a major penalty was involved.
6. Regarding his contention about discrimination, the learned counsel for the appellant stated that both officers i,e, the appellant and Inspector Ghulam Muhammad Brohi had appeared before the same Inquiry Committee. The charges against them were also the same. The recommendations of the Inquiry Committee held both the officials guilty. Although their observations in respect of Inspector Brohi were more serious than in the case of the appellant, yet the penalty awarded to them was hugely different. Inspector Ghulam Muhammad Brohi, who was Incharge of the Mithi Office, was let off with a minor penalty of stoppage of increments for two years, while the appellant was severely punished by being compulsorily retired. This, the learned counsel maintained, attracted the element of discrimination which was untenable in the eyes of the law.
7. The learned counsel for the appellant summed up his submissions with the prayer .That the impugned orders of 8 February 2002 and the corrigendum dated 19 February, 2002 may by recalled and set aside as being defective in the eyes of the law.
8. The learned Standing Counsel vehemently assailed the contentions of the learned counsel for the appellant and stated that the present appeal was non maintainable. He maintained that the appellant was provided full opportunity by the Inquiry Committee for his defence. And in this context he referred to the inquiry report which states that the Inquiry Officer had confronted Inspector Ghulam Muhammad Brohi with Muhammad Malook Rehmu, the complainant, in the presence of the appellant. He therefore forcefully repelled the argument that witnesses were not examined in the presence of the appellant or that the Inquiry Committee had failed to conduct the investigation according to the laid down procedure.
9. The learned Standing Counsel also vehemently denied the averment about discriminatory treatment meted out to the appellant by contending that the show-cause notice served on the appellant contained one additional charge which was not included in the "Statement of Charges" served on Inspector Ghulam Muhammad Brohi. He claimed that both officials were awarded punishment according to the gravity of the charges against them. He further argued that during the inquiry proceedings it became apparent that the appellant was the main accused while the incharge of the office, Inspector Ghulam Muhammad Brohi acted as accomplice. Since he was the main accused, the canons of law and justice demanded that he should be treated according to the gravity of his guilt. Therefore the element of discrimination as contended by the learned counsel for the appellant, was not correct.
10. We have heard arguments from both sides and have also perused the record that has been placed before us in detail. We have also perused the earlier decision of the Tribunal in this case as well as carefully perused the judgment of the Honourable Supreme Court through which the instant appeal has been remanded back to us.
11. In order to arrive at a judicious conclusion, we would like to take each argument of the learned counsel for the appellant one by one and examine them in the light of evidence that is available to us both in the form of oral arguments and written comments. The learned counsel for the appellant as we have observed earlier has predicated his case on 3 main grounds: (a) Defective inquiry proceedings, (b) discrimination in punishments and (c) no criminal case was pending against the appellant.
12. Ground 1. Defective inquiry proceedings. The learned counsel for the appellant in his arguments has tried to establish infirmities in the inquiry proceedings. Admittedly, the Inquiry Officer has worked painstakingly in preparing the inquiry report, yet we have noted a number of infirmities which appear to us as indefensible. For instance, the Chairman of the Inquiry Committee himself admits (in para. 4 of the inquiry report in respect of the appellant) that while conducting the inquiry, he had recorded the statements of the accused and the witnesses and "subjected them to the cross-examination whereever required". In our view this admission by the Inquiry Officer lends credence to the contention of the appellant that the inquiry was not conducted in the specified manner. The Removal from Service (Special Powers) Ordinance, 2000 clearly states in section 5(1)
(c) that the "Inquiry Officer or as the case may, the Inquiry Committee shall enquire into the charges and may examine such oral or documentary evidence in support of the charge or in defence of the accused as may be considered-necessary and the accused shall be entitled to cross-examine the witnesses against him," The word used is "shall" in the case of right of the accused official to cross examination of witnesses. This mandatory requirement, it appears, has not been taken into consideration during the inquiry proceedings which to us is a serious lacuna.
This also vitiates the second rule of natural justice "audi alteram partem"(that a decision cannot stand unless the person directly affected is given a fair opportunity both to state his case and to know and answer the other side's case). Since the right of the appellant to produce and cross- examine witnesses appears to have been infringed, we therefore have no hesitation in upholding the contention of the learned counsel for the appellant that the inquiry proceedings were defective.
In this we place reliance on case-laws reported in 1993 SCMR 603; 2604 PLC (C.S.) 328 and 1993 SCMR 105.
13. Ground II. The learned counsel for the appellant while focusing on the issue of discriminatory treatment has contended that the respondents have not treated the appellant fairly by awarding him major penalty while showing leniency in punishment on same charges to the co-accused Inspector Brohi. The contention of the respondents that the punishment was awarded according to the gravity of the crime does not appear strong. Admittedly, the show-cause notice served on the appellant contained one additional charge. But when this argument is examined closely the facts turn out to be different. We would like to reproduce the charges against the appellant as well as Inspector Brohi to clarify the position:---
(1) Charges against the appellant Mr. Muhammad Shakeel read:---
(a) That while posted as S.-I. In I.B.'s office at Mithi (District Tharparkar) he in accomplice with Mr. Ghulam Muhammad Brohi, Inspector, had subjected Mr. Muhammad Malook Rahmu (Telephone Operator in Telephone Exchange Mubarak Rind, District Tharparkar) to beating and torture from 0900/0930 hours to 1230/1300 hours on April 4, 2000 without any lawful authority, in the office premises of I.B. At Mithi.
(b) That during the said period of captivity, he and Mr. Ghulam Muhammad Malook Rahmu by blackmailing him on false grounds. Later, the demand of Rs,50,000 was decreased to Rs,10,000 and finally you both the employees (Muhammad Shakeel) and (Ghulam Muhammad Brohi) had extorted Rs,4,000 from him and got promise from Muhammad Malook Rehmu for payment of remaining Rs,6,000 later.
(c) That he is accomplice with by Mr. Ghulam Muhammad Brohi had pressurized Muhammad Malook Rahmu to settle the murder problem with one Suleman Mangrio according to wishes of Suleman. Mangrio.
(d) That he summoned one Mr. Bhojraj son of Chandiram, permanent resident of Taluka Kunri, District Umerkot then serving as head clerk in the office of Sub-Divisional Education Officer, Chachro (District Tharparkar). Mr. Bhojraj was detained in I.B. Office, Mithi, for a few hours, blackmailed and only set free after he promised to pay Rs,50,000 as illegal gratification. Later on he dispatched an I.B. Head Constable (Amanullah) along with Bhojraj to receive the money.
(e) That Mr. Bhojraj paid Rs,20,000 from his Chachro office and subsequently paid Rs,27,700 from his Kunri residence and told H.C. Amanullah, H.C. Has testified that he collected Rs,47,700 from Mr. Bhojraj and handed over the said amount to him, and he took the major share of Rs,30,000 with him and handed over the remaining amount to H.C. Amanullah (Rs,17,700) for distribution amongst his colleagues.
(f) That he had earned bad name for the organization.
(11) Charge-sheet against Inspector Ghulam Muhammad Brohi reads:---
(a) That while posted as Area Office at Mithi (District Tharparkar) he had illegally managed to call one Muhammad Malook Rahmu (Telephone Operator in Telephone Exchange Mubarak Rind) in the Intelligence Bureau's Office at Mithi on 4-4-2000 at about 0900/0930 hours, on a false pretext.
(b) That he had levelled concocted allegations of smuggling, selling of Indian wine, and misuse of telephone lines for personal gains, against said Muhammad Malook Rahmu with a view to blackmail/exhorting money from him.
(c) That he accompanied by Muhammad Shakeel, S.-I., had subjected Mr. Muhammad Malook Rahmu to beating and torture for 3/4 hours in the said office premises without any lawful authority.
(d) That during the said period of captivity, he and Mr. Muhammad Shakeel, S.-I., had demanded Rs,50,000 from Muhammad Malook Rahmu by blackmailing him on the above grounds. Later the demand was decreased to Rs,10,000 and finally he (both Ghulam Muhammad Brohi and Muhammad Shakeel) had extorted Rs,4,000 from him and got promise from Muhammad Malook Rahmu for payment of remaining Rs,6,000 later.
(e) That he accompanied by Mr. Muhammad Shakeel had pressurized Muhammad Malook Rehmu to settle the murder problem with one Suleman Mangrio according to wishes of Suleman Mangrio.
(f) That he had earned bad name for the organization.
14. By reading the charges we find that except for one additional charge mentioned at Serial Number 14 (i) (d) and (e) in the case of the appellant the rest of the charges against both officials are identical. Now if we read the proceedings of inquiry report relating to the appellant, we find that the appellant parried questions about the charges listed at 14(i) (d) and (e) above by stating that his reply to these questions would compromise his position in the Court where the criminal case was sub judice. Thereafter the Inquiry Committee confined itself to the investigation. Of the remaining charges only. This clearly shows that both officials were investigated for identical charges. The recommendations of the Inquiry Committee held Inspector Brohi as the main culprit, yet the severity of punishment to both is different which attract the element of discrimination on the part of the respondents. This argument is strengthened by 2001 SCMR 256.
15. Ground III. The third grounds on which the learned counsel for the appellant based his arguments is that no criminal case is pending against the appellant in any Court of law. This contention is now correct because the Criminal Case No,74 of 2000 dated 1-9-2000 filed under sections 161, 162, 165, B-342 and 368, P.P.C. And 5(1)d of P.C.S. 1947 F at Police Station, Satellite Town Mirpurkhas against the appellant was dismissed by the Special Court of Anti-Corruption on the grounds of jurisdiction on 22-5-2003 because case was filed before the police instead of the F.I.A.
The respondents have also placed on record the confessional statement of the co-accused Head Constable Amanullah recorded under section 164, Cr.P.C. Before the 1st Class Magistrate in criminal case mentioned hereinabove as well as his Sindhi language before the Deputy Commissioner Mirpurkhas which appears incriminating for the appellant. The respondents have also placed on record other cases against the appellant which resulted in his censure in one case and his transfer from Mirpurkhas in another. While we will not be moved to take into consideration the latter incidents as we repeat the principle that all acquittals are honourable. Reliance is placed in case cited in 1998 PLC (C.S.) 1430.
16. In view of the fore-going discussion, we accept the petition partly and set aside the impugned order dated 8 February, 2002 and 9, February, 2,002 to the extent of reducing his punishment from compulsory retirement to reduction in rank-by one stage for a period of one year. The appellant shall stand reinstated from the date of his compulsory retirement and the period that he has been out of service shall be treated as leave due. And the appellant will be entitled to the arrears of pay and allowances subject to the condition that he has not entered into any other employment during the intervening period.