' S. ABDUL JABBAR KHAN (CHAIRMAN).-Rai Shabbir Ahmad, ex-Extra Assistant Commissioner has filed an appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Government of the Punjab. By virtue of this appeal the appellant has prayed that the Notification No, SO(S)12-18/79, dated 13th December, 1979 and the order contained in No, SO(S)12- 18/79, dated the 4th February, 1980 be set aside and he be re-instated in service with all the benefits of his remunerations of pay and other privileges of service.
2. Brief facts of the case are that during Elections of March, 1977 the appellant was posted as Extra Assistant Commissioner in Mianwali District and was appointed Assistant Returning Officer to Constituency No, 60-NA for the elections to be convened on 7th March, 1977. Mr. Safdar Javed, A.C.
Lsa Khel was the Returning Officer of this constituency On the transfer of Mr. Safdar Javed, Khawaja Shahab Ahmad was appointed as Returning Officer by the Election Commission and the appellant had to work under him as Assistant Returning Officer. The election work was conducted and completed and the result of the said constituency was declared by the Government. In consequence thereof Nawabzada Muzaifar of Kale Bagh was returned to the National Assembly as a successful candidate. On 26th June, 1977 the appellant was informed vide order of the Additional Chief Secretary to Government of Punjab (authorised Officer) that in view of the charge of irregularities, malpractices and election offences during the General Election of 1977, amounting to misconduct having been made against the appellant, it was considered expedient in the interest of justice that an enquiry should be conducted against him through an inquiry committee. Therefore an Enquiry Committee comprising Lt.-Col. (Retd.) Muhammad Yousaf, OSD-IV(Enqs), SGA & I Department and the Special Judge Anti,-Corruption, Sargodha was appointed under the E & D Rules, 1975. This Enquiry Committee was required to bold at the place and on a date to be decided by them and on any subsequent date/dates to which the proceedings may be considered adequate. This enquiry had to be completed expeditiously, preferably within one month. The appellant filed an application dated 29th August, 1979 and requested for summoning of record, details of which IA as given in the said application, The Enquiry Committee started proceedings on 2nd September, 1979 at 9 a. m. Vide order dated 21st August, 1979. The appellant filed an application in Urdu on the same day in which he made grievance that he had not been informed in about the list of witnesses so as to enable him to arrange his defence. However, the enquiry was conducted and was completed. The Chairman of the Enquiry Committee, Lt.-Col. (Retd.)
Muhammad Yousaf submitted his report dated 17th September, 1979 only signed by him and Mr. Ghulam Murtaza, Special Judge, Anti-Corruption. The appellant was charge-sheeted on 2nd June, 1979 by the Additional Chief Secretary (authorised Officer) accompanying with the statement of allegations. The appellant submitted a detailed reply to the charge-sheet which is placed on record as Annex. D/1 and pleaded not guilty. On 13th December, 1979 the Governor of Punjab was pleaded to impose on the appellant the penalty of dismissal from service with immediate effect under rule 4(1;)(iv) of E & D Rules, 1975. The appellant filed a review petition against the said order of dismissal on 27th December. 1979 but the same stood rejected by order of the Government of Punjab dated 4th February, 1980 and the appellant was informed accordingly.
3. We have heard the learned counsel for appellant and the Government Pleader assisted by the Departmental Representative and have perused the entire record of this case carefully with their assistance. It has been submitted that the verdict of the Inquiry Committee is based on the premises which are not sustainable in the eye of law. A grievance has been made that the evidence on which reliance has been placed to hold the appellant as guilty is of those Presiding Officers who gave certificates in writing that the election so conducted by them was in accordance with the rules and regulations so laid down and that no irregularity was committed in this regard. It has been further submitted that all these officials remained silent for a long period after the elections were concluded and only came forward to take a summersault against their previous stand in writing at the time when Col. Naeem was appointed to make a probe into the complaints of rigging by the opponents of the elected candidates. It has been vehemently urged by the appellant that the Returning Officer who was the inclaarge of the entire constituency has categorically stated before the Enquiry Committee that no rigging was made and the election was conducted in a fair manner. It has been further contended that those Presiding Officers who have admitted that rigging was done although at the behest of the appellant are the accomplices in the eye of law and their statements without any corroborative evidence would be of no value against the appellant. Reliance has been placed in this respect on a number of rulings of the superior Courts from time to time on this legal proposition. The learned counsel for the appellant has also referred to the evidence of Qazi Amir Abdullah Khan, Advocate and of Ghulam Murtaza Hashmi, P.
Ws. Who have fully exonerated the appellant in their statements. With regard to the remaining witnesses he has submitted that their evidence is contradictory and suffers from inherent defects with regard to the crucial date 1. e. 5th March, 1977 and, therefore, is not worth of any reliance. Lot of stress has been made on the evidence of Lt.-Col. Asghar Ali who was incharge of the internal security under Brig. Hamayun Malik at Mianwali, who in his statement has substantiated in an unimbiguous terms the plea of alibi so set up by the appellant in his defence.. According to the appellant Sh. Ghulam Rawl D. W. 2 has also iddicated his stand that the appellant was on duty at Isa Khel and, therefore, he was so distantly placed from the venue of the rigging that the P. Ws.
Deposing against him were themselves guilty of the offence. In the end the appellant and his counsel have vehemently argued that the entire proceedings conducted against the appellant were against norms of justice proceeded in a slipshod and hasty manner without giving a chance to him to present his point of view before them.
4. On the other hand the learned Government Pleader has submitted that the main charge against the appellant that he persuaded and coerced the Presiding Officers to commit rigging in order to make successful the PPP candidate was fully made out from the evidence of P. Ws. 3 to 11, therefore, dismissal of the appellant was fully justified by the competent authority. However, he has conceded that charges (b), (d) and (f) were held to be not proved by the enquiry committee whereas charge ( f was also made against the appellant. With regard to the unproved charges it was said that these being all ancillary inaature would not absolve the appellant from the impact of the main charge.
5. It would be useful to reproduce all the charges in order to assess the weight of the allegations against the appellant and to appreciate the criticism levelled by the appellant against the verdict of the enquiry committee against him :--
(a) You worked very biatantly for the success of the PPP candidate. You summoned the Presiding Officers alongwith their election bags and stamped the ballot papers in favour of the PPP candidate.
(b) On the night between 6th/7th March, 1977 when about 200 armed PPP workers came to Rest House of Kalabagh, you asked Ghulam Murtaza Presiding Officer to hand over the polling material to the PPP workers for stamping the ballot papers in favour of PPP candidate.
(c) You summoned the Presiding Officers and stressed upon them to make the PPP candidate successful, as desired by the then Government, under all the circumstances.
(d) You alongwith D. S. P. Sher All Khan and others blocked the routes to Kalabagh so that the workers/polling agents of P. N. A. Candidate could not reach Kalabagh to check the election work.
(e) You failed to report correct situation to your superior officers.
(f ) You intentionally withheld information from the Election Inquiry Committee by concealing all facts about malpractices and rigging in elections.
' Out of the charges mentioned above we find that charge (a) and charge (c) stood proved by placing reliance on the testimony of P.Ws. 3 to 11 but the enquiry committee did not find any material to substantiate charges (b), (d) and ( f ). What we are required to see, without going into the technical and legal objections raised about the conduct of the Enquiry Committee, is whether there is a sufficient evidence of reliable nature to connect the appellant with the election offences so made against him for which he has been dismissed from service. Before assessing the intrinsic value of the evidence of those P. Ws. Who were all Presiding Officers during this election we will keep in view a very important factor i. e. The status of these witnesses is that of accomplices and thus their testimony is to be taken into consideration with a pinch of salt: In view of this peculiar position we have to take a strict view with regard to their narration of the incident so as to find whether the contradictions arising out o ' I their evidence are to be ignored as a lapse of memory or taken as wilful misrepresentation to conceal the truth. Before we enter into dealing all Such contradictions which are so many while reading their evidence, we will like to observe that the pivotal point in this entries exercise is the date of 5th March, 1977-the date of which according to Lt.-Col. Asghar All D. W. 1 supported by Sh. Ghulam Rasul, D. W. 2 the appellant was all along present with said Lt.-Col. Asghar Ali and did not go to Kala Bagh.
6. Out of the 12 P. Ws. Examined by the prosecution to substantiate charge (a), Ghulam Murtaza P.
W. 2 stated before the Enquiry Committee that the supporters of Malik Muzaffar candidate came to the polling station at about 4/5 o'clock in the evening of 6th March, 1977 and he (P. W. 2) was taken to the Rest House forcibly by them. This witness further stated that Behram Khan and about 8 other Presiding Officers were there and the election material was snatched away by the PPP workers. This witness has unequivocally denied the presence of the appellant at the spot. On the other band P.
W. 3 Muhammad Behram stated that he was present at his house at Sikandarabad on 6th March, 1977 with election bags. At about 6.30 p.m. a jeep came to his house and the person driving the jeep to I him that he was being called by the Returning Officer at Kala Bagh along with the election material. On arrival at the Rest House the election bags were taken away from him and returned on the same night at about 10 p. m. And he was made to board a jeep alongwith the election bags and then taken to the PPP office Jalalpur. It was at that place that the appellant addressed the Presiding Officers and asked them to support the PPP candidate. It is in his statement at the close of his examination-in-chief that Mr. Gill, Mushtaq Khokhar, M. A. Reza and Mr. Hashmi were amongst the Presiding Officers in the Rest House. In this way we find the testimony of P. Ws. 3 and 2 contradicting each other on all salient points. P. W. 2 as pointed out earlier denies the presence of the appellant while P. W. 3 affirms the same. Similarly the story with regald to the snatching of the bags suffers corrobation on material points as each one of the P. Ws. Gives the version of his own choice. P. W. 6 Shakoor Ahmad has made out that he was called at the Rest House, Kalabagh on 5th March, 1977 but according to Behram Khan he was summoned at the Rest House on the night of 6/7th March. Muhammad Aslam P. W. 7 and Mumtaz P. W. 11 fix the date as 5th March of the said incident while Behram Khan P. W. 3 is adamant that it was the night between 6th and 7th March.
Even with respect to the narration of story of "bags snatch" we are constrained to observe that the version of Behram Khan is duly contradicted by the said witnesses. At this juncture the statement P.
W. 12 Kh. Anwar Shahab would be sufficient as he has stated that during all this period telephone communication was not tampered with and he was in touch from out stations and kept all the messages so received. This P. W. Has further conceded that the appellant was with him while he was visiting some polling stations including that Of Issa Khel. It is on the record that Issa Khel town is at a distance of 30/32 miles from Kalabagh which is alleged place of rigging. Similarly when we look into the allegation of stamping of the ballot papers by the appellant we find, according to P. W.
4 Muhammad Hassan Qazilbash that this stamping was being made by the Presiding Officer and other P. Ws. Whereas Behram Khan has affirmed that this was done by the people of Kalabagh themselves. There is hardly any evidence of the record to show that this stamping was done by the appellant in favour of the PPP candidate. While taking into consideration the manner of address by the appellant in persuading the Presiding Officers to act in favour of the PPP candidate we have noted that every witness has given a different version about the same. If all of them were present at one place then it would not be possible to accept that they would give different versions of the account of his address if they had beard him doing so. With their contradictory stories about the one address the incapable inference would be that whatsoever they had state was the creation of their own ingineous mind so as to put the blame at the door of the appellant in order to save themselves from the offences which they accept to have committed. We also cannot remain oblivious of the fact that their kill conscious-a ward used by the Enquiry Committee was resurrected only when they saw somebody in uniform to make one braid of their past sins. We are also fortified to take judicial notice of the change in Government on 5th July, 1977 but we do not find any explanation on the record as to how these witnesses kept quiet about their guilt-of course according to them committed at the behest of the appellant whereas people were pouring in their complaints with regard to their grievances against the fallen Government and their portigies. All the P. Ws. In this case who have conveniently shifted their burden of crime on to the shoulder of the appellant were educated persons in the service of the Government or autonomous bodies and should have no fear when it was to their knowledge that they could not be terrorised or tormented by the tyrants of the old days. We are aware of the legal position that a person can be convicted on the sole testimony of the complaint but the rule of caution has always been laid down in this respect. Such a testimony can be acted upon only when there is sufficient corroborative material from independent versions to connect the accused with the commission of the crime. In this particular case there is a Returning Officer namely Kh. Anwar Shahab who has appeared as P. W. 12 and would for all purposes be the officer incharge of this election, Appellant's status was that of Assistant Returning Officer and had to act under the control of said officer. If there was any threat or coercion made on behalf of the appellant to these witnesses it was their primary duty to inform about the misconduct of the appellant to the Returning Officer (Kh. Anwar Shabab P. W. 12). The failure on their part particularly when the communications with the Returning Officer were in tact and he was receiving messages, according to his own testimony from every where, the lapse on the part of the P. Ws. Would clearly show that they are telling lie. The fact that the Returning Officer has himself certified that the election was done according to the rules and regulations speaks volumes against the present stand of the P. Ws. That they had committed rigging at the behest of the Assistant Returning Officer. The Enquiry Committee was justified to hold that the rigging has been done at the instance of the appellant and it was also their primary duty to hold the controlling officer equally guilty vis-a-vis the certificate so issued by him.
7. The plea of alibi set out by the appellant from the very outset that he was on law and order duty at Issa Khel, a place at a distance of about 30/32 miles from Kalabagh on the crucial date, i. e. The 5th of March, in the company of Lt.-Col. Muhammad Asghar supported by the Duty Roster Exh. Z. A.
Is worth of examination. P. W.
12. Admitted in his cross-examination that according to the duty roster the appellant was posted on law ard order duty and he remained with him from 6 p. m. On 6th March, 1977 to 7 p.m. On 7th March, 1977 and this cannot be ignored. This fact is further supported by the testimony of Ghulam Murtaza P. W. 2 who clearly stated in his examination-in-chief that he did not see the appellant at the place where it was said by the other P. Ws that he persuaded them to support the PPP candidate. This plea finds further support from th3 evidence of P. W. 11 Mushtaq Khokhar who stated that on the following day at about 5 p.m. They again went to Kalabagh. He did not fincl his staff there and later on they went to Boharwala Rest House and on reaching there he did not find the appellant present there. Same is the stand of the P. Ws. Qazi Akhlaq, Shakoor, Muhammad Aslam, Ch. Noor and Muhammad Hassan Qazilbash that the appellant was not seen by them at Kalabagh Rest House on 6th March, 1977. So the only date left to mark his presence at Kalabagh would be 5th March, 1977 and on this date, according to Lt.-Col. Raja Muhammad Asghar the appellant was present with him all along. When cross-examined on this point by the enquiry committee he reiterated that he was absolutely certain that the date mentioned by him was correct. The enquiry committee on this point while accepting the said witness as true witness has tried to minimise the impact of his statement by observing that as it was a matter of recollection so there was likelihood that the witness might have forgotten the date. According to Wigmore, the the theory of alibi is that the fact of presence elsewhere is essentially unconstrued with the presence at the place and the time alleged and, therefore, with personal participation in the act. Under section 11 of the Evidence Act the facts not otherwise relevant become relevant :- "(I) If they are inconsistent with any fact in issue or relevant fact ;
(2) If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable."
' According to Prof. Wigmore, evidence of alibi if clearly established on testimony is the most satisfactory conclusion. If the plea is found not true it is...Lot of law has been laid down on this subject and it would be unnecessary to burden the file with the citations of the same. Taking into account the statements of P. W. 12 and D. W. 1 and 2 we have no reason to disbelieve the same. It has been clearly established that the appellant was on duty with Lt.-Col. Raja Muhammad Asghar on 5th March, 1977. Now putting into juxtaposition the contradictory and tainted evidence of witnesses without any corroborative evidence of any kind the plea of alibi fully supported by P. W. 12 and D. Ws. 1 and 2, we are of the considered opinion that the appellant has fully made out that he was in no way responsible for persuading the P. Ws. Commit the alleged rigging and has been only made a scapegoat for their self-crime.
8. The result is that we accept his appeal, set aside the impugned orders as being without any legal effect and order that the appellant be reinstated in service from the date of his removal with all back benefits.