Moazzam Hayat, Member.--Appellant Khalid Aziz was an Officer from District Management Group (DMG). On the charge that During his tenure of office he had collected huge amount of Rs, 11,80,000,00/- in the name of his wife Mrs. Nelofar Khalid. A reference was sent to the NAB Court by the NAB authorities. He was convicted under Section 10 of the National Accountability Ordinance, 1999 and sentenced to ten years rigorous imprisonment vide judgment of the Accountability Court-dated 21.06.2000. Since he could not offer any explanation with regard to Rs, 11,80,000,00/- deposited by his wife in her private account, this amount was also confiscated. Against his conviction and sentence he filed appeal in the Peshawar High Court. He was required to explain only an amount of Rs, 3,843;500/- deposited by his wife in her personal account. His sentence was reduced to two years rigorous imprisonment and to fine of Rs, 50,000,00/- by the High Court vide its judgment dated 14.05.2001. The benefit of Section 382-B Cr.P.C. was granted to him. Against the judgment of the High Court he filed Criminal Appeal No, 361/2001 in the Supreme Court. Against reduction in sentence by the High Court the State also filed Appeal No, 362/2001. The Hon'ble Supreme Court accepted Appeal No, 361/2001 filed by the appellant and rejected the appeal filed by the State vide its judgment dated 05.10.2010. The appellant was acquitted of the charge.
Meanwhile the appellant was awarded the penalty of dismissal from service vide notification dated 23.05.2001 dispensing with a show cause notice. Against his dismissal he filed a review petition which was rejected by the competent authority on 16.08.2001. The present appeal was filed on 14.09.2001.
2. The appeal is pending since 14.09.2001 for preliminary hearing. Today the respondents have appeared but have not filed the comments. On the last date i,e, 23.12.2010 the appeal was adjourned for today. The departmental representative had prayed for adjournment to file comments. His prayer was allowed. In spite of adjournment the respondents have not filed objections. In view of the principle of law contained in Order VIII, Rule 10 CPC the defence of the respondents is struck off.
3. The appellant was awarded the penalty of dismissal from service under Section 3(2) of the Removal from Service (Special Powers) Ordinance, 2000. It is stated in the second proviso to sub- suction (2) that no opportunity of showing cause shall be given where it accused official/ officer is dismissed or removed from service or reduced in rank on the ground of conduct, which has led to a sentence of fine or of imprisonment. The appellant was awarded the penalty of dismissal from service on his conviction by the Accountability Court. He was not given any opportunity to show cause under the aforementioned proviso to subsection (2). Since the conviction of the appellant has been set aside by the Hon'ble Supreme Court and he is acquitted, therefore, the charge on which the penalty of dismissal from service was awarded to him is automatically set aside. When there is no conviction there is no dismissal from service under the provisions of Removal from Service (Special Powers) Ordinance, 2000. The appellant cannot be termed as a "convict" in view of the judgment of the apex Court. All acquittals are considered honourable. The appellant in the circumstances is entitled to reinstatement in service from the date he was dismissed.
4. In the above circumstances, the appeal is not only admitted to regular hearing but is also allowed. The appellant is reinstated into service with effect from his dismissal. He shall be entitled to back benefits.
5. The learned counsel for the appellant has told us that the date of birth of the appellant is 14.04.1945. It means that he had superannuated on 13.04.2005. Thus he shall be entitled to back benefits from the date of dismissal to the date of his superannuation.
6. Since the penalty was imposed upon the appellant only on account of his conviction, therefore, no further direction is required to be issued by this Tribunal to the respondents except to reinstate him and to grant him all the benefits, payable to a civil servant on attaining the age of sixty years.
7. There shall be no order as to costs.
8. Parties shall be informed.