JUSTICE (RETD.) GHULAM NABI SOOMRO, CHAIRMAN --- This is an appeal filed by the appellant under Section 4 of Sindh Service Tribunals Act, 1973. Brief facts of the case are as follows.
2. Appellant Zafar Iqbal, a Police Constable posted at Mubina Town Police Station, Karachi was involved in a criminal case F.I.R. No. 145/97 under Section 17(4) of the Offence against the Property Ordinance, 1979 of P.S Gulzare-Hijri. He was arrested and sent to jail on account of which the appellant was proceeded against and dismissed from service by an order dated 11.11.1997 by the Superintendent of Police District East, Karachi.
3. It seems pertinent to mention here that the AS1 Police namely Zahid Hussain Shah of the same Police Station was also involved in the same offence alongwith present appellant and was awarded same punishment of dismissal from Service vide order of even date. The case was challaned against both of them and after trial by the Court of learned Addl. Sessions Judge Malir, Karachi, it ended in acquittal of both the police personnel under the same judgment dated 4.4.1998.
4. AS1. Zahid Hussain Shah after his acquittal preferred a departmental appeal which was accepted and he was reinstated in service from the date of his dismissal and his absence/out of service period, was ordered to be treated as leave of the kind due. He was also ordered to be posted immediately, such order dated 30.5.1999 in respect of AS1 Zahid Hussain Shah is on record and is reproduced below: "ORDER: 30.5.1999.
The appeal of the above named AS1 has been considered by the undersigned and accepted.
Consequent upon acceptance of his appeal, he is hereby reinstated in service from the date of his dismissal. His absence/out of service period to be treated as leave of the kind due".
On reinstatement in service, he is also posted to Central District,. Karachi, with immediate effect.
Sd/- (MUHAMMAD IJAZ AKRAM) PSP Deputy Inspector General of Police Karachi"
5. The case of the appellant is that after his acquittal he had also preferred an identical appeal before the departmental authority on 18th January, 2002, which was dismissed by the respondent No. 3. (Capital City Police Officer), Karachi by the following order: "ORDER: 02.12.2006.
The appeal of above named appellant has been considered and filed".
Sd/- ZAFAR AHMED FAROOQUI) pSP DIGP/Admn.
FOR CENTRAL CITY POLICE OFFICER, KARACHI."
6. The appellant then filed a review application before the respondent No. 2, (Provincial Police Officer) at Karachi on 9.2.2007 but to his misfortune the review application was also rejected in the following words:- ORDER 4.6.2007 "The appeal of Ex.PC.1538 Zafar Iqbal of defunct District East Karachi for reinstatement in service has been considered. I find no reason to differ with the orders passed by the competent and appellate authority. The appeal is rejected and papers filed.
Sd/- DIGP/ESTT: FOR PROVINCIAL POLICE OFFICER SINDH, KARACHI
7. The appellant after having exhausted the legal remedies available to him before the departmental authorities, finally filed the present appeal before this Tribunal.
8. We have heard the learned counsel for the parties and also gone through the record available.
9. It was argued that the appellant was appointed as a police constable in the year 1981 and had unblemished record of his service for over 15 years, It was further argued that sole basis of dismissal from service of the appellant being his involvement in the afore-said crime; it was in negation of the Dictum of Law that, accused (appellant) was presumed to be innocent till he was pronounced guilty by a competent Court of law. It was added that the appellant should not have been so severely punished during trial and before adverse verdict of the Court, It was further urged that co-accused AS1 Zahid Hussain Shah after his acquittal was reinstated in service with effect from the date of his dismissal. That the case of both the police personnel being identical, both of them were entitled to same kind of treatment and relief, It has also been urged that it is a clear- cut case of discrimination, in that the appeal of one having been accepted at the very initial stage by the respondent No. 3 and the appeal of the other i.e. The present appellant, went fruitless in the departmental hierarchy, which forced him to face the agony and ordeal of litigation for not less than 8 years, It was prayed that the appellant was entitled to same treatment as was meted out to acquitted co- accused Zahid Hussain Shah, AS!. And he be reinstated In service.
10. Learned counsel for the appellant has relied upon a Supreme Court judgment, in the case of Sr.
Supdt. Of Police Government of Sindh Hyderabad & others v. Iqbal Ahmed and another (2004 PLC(C.S)-115) and Malik Azharul Haq v. Director of Food, Punjab, Lahore and another (1991 - SCMR- 2091 in support of his submissions.
11. Mrs. Tabasum Ghazanfar, learned AAG for the respondents has not been able to controvert the above contentions raised on behalf of the appellant and has candidly conceded to the status of the two after their acquittal.
12. Plainly, the case of the appellant as stated above is not controverted in the written statement filed by the AIGP (Legal) on behalf of the respondents Nos. 2, 3 & 4. The written statement filed by the respondent No.4 however discloses that the departmental appeals of the appellant were rejected on the grounds that applicant was acquitted under Section 265-H, Cr.P.C, giving benefit of doubt. Such observation does not appear any where in the orders passed by the Departmental Authorities i.e. Respondents Nos. 2&3. It may therefore be treated as a far fetched assumption on the part of the Respondent No. 4 (District Police Officer).
13. We have carefully considered the arguments put forth before us and has minutely examined the record. We do not find the case of the two police personnel distinguishable in any manner except that one was a constable of police and another an ASI.
14. In the first case the Supreme Court in a similar case, while dismissing the petition for leave to appeal against the judgment of the Sindh Service Tribunal accepting the appeal of the police constables observed that "the higher police authorities did not give weight to the acquittal order of the respondents by a court of competent jurisdiction in as much as there was no other charge or show-cause notice against the respondents", In the second case the Hon'ble Supreme Court while accepting the appeal by its judgment dated 2.4.1990, observed at last para of the judgment as:- "9. The dismissal of the appellant was based on the conviction recorded against him. Since conviction has been set aside, the order of dismissal can not be maintained and has to be set aside. The appeal is accepted and the respondents are directed to reinstate the appellant in service with back-benefits with effect from 22.1.1980."
15. It has time and again been held by our superior Courts, that acquittal of an accused by a competent Court of law is always to be treated as honourable. There is no doubt left in our mind that the appellant suffered discrimination before his departmental authorities. We are inclined to say so particularly because: the order of the authorities in the hierarchy of the department is without any reason. There are no reasons given in the reinstatement order of AS1 Zahid Hussain Shah either.
16. In view of the above, the appeal of the appellant is allowed. He is ordered to be reinstated in service immediately. His absence/out of service period shall be treated as leave of kind due. In case, appellant's leave is not found due and is found out to be short of some time that shall be treated in accordance with law.
17. Above appeal was allowed by a short order dated 7.12.2007 and afore-said are the reasons therefore.
Given under our hands and the Seal of this Tribunal this 5th day of January, 200.