Muhammad Ashfaq Balouch, Member.--Present appeal under Section 10 of the Removal From Service (Special Powers) Ordinance 2000 R/W Section 4 of the Service Tribunals Act, 1973 (Act. LXX 1973) has been filed by one Farhan Ahmed Qadri (hereinafter referred to as appellant), against the Director General FIA Islamabad and Director FIA, Karachi Zone, Karachi (hereinafter referred to as the Respondents No, 1 & 2 respectively).
2. Brief facts as disclosed in the memo. of appeal are that the appellant joined Federal Investigation Agency as Constable on 25.11.2002 prior to this incident there was no complaint against the appellant. But on 10.02.2008 one Abdul Hameed deportee was deported from Geneva Airport because he attempted to enter Geneva on a forged Pakistan Passport No, KB-947676, originally issued in the name of Malik Shamas Suleman. Preliminary inquiry was conducted by one Khaliq-uzZaman Khan the then Assistant Director (Departure), result of that inquiry revealed that on 08.02.2008 when said passenger Abdul Hameed left Jinnah International Airport, Karachi, at the relevant time appellant was on duty at immigration counter, appellant in collusion with other accused knowingly and fraudulently affixed the exit Stamp No, 23 on the forged passport of said accused Abdul Hameed and thereby allowed immigration clearance. After that inquiry FIR No, 330/2008 was registered at FIA, AHT Circle, Karachi against appellant and others.
3. Thereafter, on 10.05.2008 charge sheet with the statement of allegations was served upon the appellant. Appellant in his reply to the said charge sheet denied the allegations and pleaded that at the relevant time, he was posted and on duty as Constable at Jinnah International Airport in immigration departure, in shift "B", whereas, Inspecteress Mrs. Lubna Tiwana was shift incharge.
Further stated that on said date his (the appellant) duty was to collect stamps from the Head Mohrrar and distribute the same to the counter officer as per Roznamcha entry, during rush hours to sit at counter, for which he (the appellant) was allotted stamp No,
23. It is case of appellant that the officer of ASI rank is trained for examining passport and visas to clear the passengers at Airport not the Constable. The function of the constable is only to feed the particulars of the passengers in the PISCES, while rechecking officer standing on the back was responsible for checking the passport/visa and clearing the PISCES. It was also claimed by the appellant that on 08.02.2008 his duty was from 1500 hours to 2300 hours, during this shift boarding of 6/7 flights started and due to rush of work the shift incharge directed him (the appellant) to sit on counter and to perform duty of handing over passport to the transit passengers. At about 2000 hours extra shift reached their and he (the appellant) left the counter. The appellant's case is that he had left behind stamp No, 23 at his counter, during such time some one used the said stamp. Appellant claimed that he was not involved by the deportee passenger Abdul Hameed.
4. Subsequently, preliminary inquiry was conducted, wherein appellant was found involved.
Therefore, charge sheet dated 10.05.2008 alongwith Statement of allegations were issued.
5. Appellant had tendered his reply to the charge sheet on 19.05.2008 and again had rebutted the charges and claimed that on 08.02.2008, he was on duty at Jinnah International Airport at immigration (Departure) alongwith Incharge Inspecteress Ms. Lubna Tiwana. At that date boarding of 6/7 flights started, due to rush, the shift Incharge asked him to sit on the counter to clear the passengers. As at about 2000 hours extra staff arrived. Therefore, he (appellant) had left counter and went to Head Moharrar's Room for collecting stamps leaving behind Stamp No,
23. During this interval some one might have used Stamp No,
23. He admitted that Stamp No, 23 was allotted to him.
6. Mr. Muhammad Riaz Gondal, Assistant Director FIA, AHTC Karachi conducted inquiry and submitted report to the Director FIA Karachi,. Zone, Karachi vide Letter No, FIA/AHTCK/DR-2/2008- 20973 dated 04.09.2008. After submission of inquiry report, appellant was heard in person by the Director FIA Karachi (Respondent No, 2). Thereafter on 15.10.2008 Respondent No, 2 as Competent Authority imposed the penalty of Dismissal from Service. Appellant filed departmental appeal before Respondent No,
1. Till 27.10.2008 reply was not communicated to the appellant. Present appeal was filed with following prayers:-- a. "To call for the record from the respondents and set aside the impugned order of Dismissal from Service dated 15.08.2008 passed by the Respondent No,2 b. To reinstate the appellant in service with all consequential back benefits as during service the appellant is no where employed.
Cost of the appeal.
Any other relief as the Honourable Court may deem proper and fit under the circumstances of the case."
7. During the pendency of this appeal criminal case mention supra was decided by the learned 4th Judicial Magistrate Malir vide judgment dated 21.04.2009 and present accused alongwith the co- accused Shafique-ur-Rehman and Mansoor Hussain were acquitted, while deportee passenger Abdul Hameed pleaded guilty and was convicted.
8. Department contested this appeal by filing parawise comments, alleged that on 08.02.2008 appellant being Counter Officer in active connivance with a racket knowingly/fraudulently affixed the exit Stamp No, 23 on the forged passport as well as original passport of passenger Abdul Hameed and there by allowed immigration clearance. Department claimed that the inquiry officer has conducted the inquiry strictly in accordance with law. Appellant was accorded; full opportunity to cross-examine the witnesses. Further appellant was provided full access to the relevant record and the documentary evidence. It was also stated that as per rules departmental inquiry as well as criminal proceedings can be initiated at the same time as provided in Sr. No, 118 Chapter V of the ESTACODE, as accused was found guilty in inquiry proceedings, therefore, he was dismissed from service.
9. Mr. Sanaullah Noor Ghouri, Advocate for appellant has argued that only charge against the appellant was that he had affixed seal on the forged passport of one Abdul Hameed, who was subsequently deported from Geneva, about this act a criminal case was challaned in the Court of Law, where in that criminal case Abdul Hameed was convicted but the appellant and other co- accused were acquitted. He has further argued that during the inquiry proceedings appellant requested Respondent No, 2 to defer the departmental proceedings till the criminal case proceedings finalized. Because the departmental action was the direct offshoot of the said crime.
The action taken against the appellant during criminal case was unjustified. He has relied upon the ruling, 1987 PLC (CS) 909. He has further argued that under the RSO 2000 charge sheet/statement of allegation were required to have been signed by the authority and delivered/communicated by the inquiry officer but these documents were signed and delivered by the inquiry officer, which is illegal and further proceedings till passing the order of dismissal from service, all these proceedings were nullified in the eyes of law. He has relied, upon the ruling 2005 PLC (CS) 1489. It was also contended that material witness Abdul Hameed was not called or examined by the Inquiry Officer, only interested FIA officials were examined. Reliance was placed on 2008 PLC (CS)
1205. Another argument on behalf of appellant was that inquiry conducted in the question and answer form is not valid. Reliance was placed on 2007 PLC (CS) 265. It was also argued that proper inquiry was not conducted, appellant was not provided the proper chance of defence, the inquiry was defective and major penalty of Dismissal from Service was unjustified and liable to be set aside. Reliance was placed on 1987 PLC (CS) 658. The main argument was that appellant after acquittal from the criminal case when found innocent is entitled to be reinstated in service.
Reliance was placed on SBLR 2010 Tribunal 248.
10. On the other hand, Mr. Abdul Ghafoor Naz, Advocate for the respondents vehemently argued that the appellant had affixed the exit stamp on the forged passport of Abdul Hameed, thereby he facilitated said Abdul Hameed to exit from Jinnah International Airport. He has further argued that inquiry was conducted properly and there is no defect in the inquiry.
11. We have considered arguments of both the parties and have gone through the record.
12. The perusal of record shows that in respect of this incident of facilitating deportee Abdul,Hameed by way of affixing Stamp No, 23 on his passport and thereby allowing him exit, department had lodged FIR No, 330 of 2008 under Section 419, 420, 468, 471, 109 PPC of at FIA, AHT Cell, Karachi. After investigation Challan against (1) Farhan Ahmed Qadri (the present appellant)
(2) Shafique-ur-Rehman, (3) Mansoor Hussain and (4) Abdul Hameed was submitted before the learned 4th Judicial Magistrate Malir. After Challan charge was framed and regular trial was completed. The learned Judicial Magistrate No,4 vide detailed judgment dated 21.04.2009, acquitted present appellant alongwith two others, while passenger Abdul Hameed was convicted because he pleaded guilty. We have the benefit to reproduce the relevant part of judgment supra as under: It would be seen that the offence punishable u/S. 419 PPC pertains to the cheating by personation, which was committed by the accused Abdul Hameed. The offence punishable as 420 PPC is in respect of cheating and dishonestly inducing delivery of property, which does not exist in the case.
The offence punishable u/S. 468 PPC is in respect of forgery by making false documents and in this respect no evidence of whatsoever is brought on the record to establish that the accused Hameed had committed the forgery by making the false forged passport himself or that the said passport was forged by the co-accused. Thus the said offence punishable u/S. 468 PPC was also not applicable either to the case of accused Abdul Hameed or is applicable to the case of co-Accused Nos, 1 to 3. As far as the offence punishable u/S. 671 PPC is concerned, it is in respect of fraudulently using as genuine the forged document knowingly that it was a forged document. And the forged passport if any was also fraudulently used as genuine by the accused Abdul Hameed and as such the said offence is applicable to him. Thus the accused Abdul Hameed was charged for the said offence punishable u/S. 419 and 478 PPC and convicted u/S. 234 CrPC. on his admission to the trial of accusation.
Now, at the most the co-Accused Nos, 1 to 3 have been alleged to have abetted the accused Abdul Hameed in commission of the said offence punishable u/Ss. 419 and 471 PPC and as such they were sent up to face the trial for the offence punishable u/S. 109 PPC.
In this regard, the defense counsel has referred to the cases reported as PLD 1985 SC 633 and SBLR 2005 Sindh-451, according to which, the Honourable Superior Courts have declared the said offence punishable u/S. 109 PPC to be repugnant to the injunction of Islam and that no person can be charged and convicted under the said section of law, thus it was ordered that the said provision of law be removed from the statute.
Hence, at the altar of the said judgment of the Honourable Superior Courts the Accused No, 1 to 3 cannot be convicted for the offence punishable u/S. 109 PPC even if the entire evidence adduced by the- prosecution is admitted to be true and correct. The main Accused No, 4 who committed the offence and pleaded guilty has already been convicted.
Therefore, I am of the considered view that the charge against the co-accused to 3 is groundless and as such the Point No, 1 was answered as Negative.
In view of the above discussion and finding no offence is made out against the Accused No, 1 to 3.
Thus.
For the foregoing discussion and reasons, the Accused No, 1 to 3 are hereby acquitted u/S. 245(i)
Cr.P.C. They are present on bail, which stands cancelled and sureties discharged."
13. It is evident from judgment supra that against present appellant, there were allegations that he alongwith other two accused committed forgery, cheating, personation by way preparing false documents viz. passport. But prosecution (department) has not been able even to establish these allegations against the present appellant and two others, which resulted in acquittal of accused/appellant. There is nothing on record that said acquittal order was challenged before any Court of law.
14. The contention of learned counsel for the appellant that acquittal of appellant from the competent court of law is sufficient proof that allegation leveled against the appellant were baseless, this contention has force because in similar circumstances in case reported as 1998 PLC
(CS) 1430 Dr. Muhammad Islam Vs. Government of NWFP and others, when civil servant involved in murder case was acquitted by the trial Court. Department denied him to pay salary and allowances for the period, filed appeal before the NWFP Service Tribunal, which was dismissed, Civil servant challenged the said order of NWFP Service Tribunal, before Hon'ble Supreme Court of Pakistan. Hon'ble Supreme Court of Pakistan set aside the order of Service Tribunal with following observation: The appellant was acquitted by the trial Judge as already pointed out above. It shall, therefore, be presumed that the allegations leveled against him are baseless. In consequence, he has not been declared guilty. In presence of above meaning of "acquittal" the appellant is held to have committed no offence because the competent Criminal Court has freed/cleared him from an accusation or charge of crime. The appellant is, therefore, entitled to the grant of arrears of his pay and allowances in respect of the period he remained under suspension on the basis of registration of murder case against him. This appeal succeeds and is allowed with no order as to costs."
15. Keeping in view the above observation of Hon'ble Supreme Court, coupled with judgment of the learned 4th Judicial Magistrate, Malir, present appellant alongwith other co-accused were not found guilty for offence of forgery, personation, cheating preparing false document and were acquitted.
16. So for inquiry proceedings are concerned it is admitted position that passenger Abdul Hameed was deported from the Geneva on the pretext that ha traveled on forged passport and was cleared from Jinnah International Airport, Karachi, where at the relevant time present appellant was on duty, exit Stamp No, 23 was in his possession and that stamp was affixed on passport of said Abdul Hameed. Therefore, said deportee Abdul Hameed was the star and independent witness in this matter: Though he remained in custody of FIA at that time but department has not taken any pain to record his statement. In this way department has destroyed this important piece of independent evidence. In similar circumstances in case reported is 2008 PLC (CS) 1205, when the detailed statement of important witness was not recorded by the inquiry committee, the order of Dismissal from service was set aside by this Tribunal, relevant portion is reproduced as under:-- "Appellant was dismissed from service after charge-sheeting him for inefficiency and misconduct- -Inquiry Committee while conducting inquiry proceedings, had committed an irregularity of very serious nature as it did not record statements of two witnesses in detail--Said witnesses were required to state in their own words what they knew about the case, but said two witnesses had not made any statement at all--"
17. Though the appellant side has argued that no proper inquiry was conducted, but the perusal of inquiry reveals that statement of official witnesses were recorded during the inquiry proceedings.
Further appellant was allowed to cross-examine these witnesses and was afforded full opportunity to lead his defence. It is worthwhile to mention here that in criminal case referred supra, there was one charge that present appellant with co-accused forged the documents. But there was no charge that accused/appellant had committed negligence. Therefore, no such finding was recorded by Criminal trial Court. Inquiry proceeding record reveals that appellant in reply to charge sheet had disclosed as under: "That on 8.2.2008, I reached my duty which was from 1500 hours till 2300.
That on that day at 1900 hours, boarding of 6/7 flights started. Due to the rush, the. shift incharge asked me to sit on counter and clear the passengers and also perform my routine duty of handing over Passports to transit passengers simultaneously which I did.
That it appears that some one might have used my stamp in my absence. Moreover, the stamp allotted to any one remains with him at the counter during duty hours only and after the duty the stamp is deposited with the Head Moharrar" shift incharge Inspecteress Mrs. Lubna Tiwana has stated as under: "On 08.02.2008, I was on duty in the said Shift from 1501 hours to 2300 hours. It is confirmed that FC Farhan Ahmed was on duty on that day in my Shift. He was assigned duty CP/Stamps and was also allotted the EXIT Stamp No, 23 of the Check Post.
From the scrutiny of both the said passports, it has been found that both the passports bear the EXIT Stamp No, 23 dated 08.02.2008 of immigration Karachi Airport which was allotted to FC Farhan Ahmed".
Sub-Inspector FIA Immigration (Departure) Mr. Muhammad Dawood n its statement has disclosed that:-- "FC Farhan Ahmed Qadri was also on duty in our Shift on that date. I have very carefully seen the original Pakistani passport Bearing No, AE-7270131 issued on 04.02.2006 in the name o: Abdul Hameed S/o. Bashir Ahmed and KB-947676 issued or 25.04.2007 in the name of Malik Shamas Suleman S/o. Malik Muhammad Suleman today i,e, 10.06.2008 in your possession From the perusal of both the said Passports, it has been found that both the passports bear the EXIT Stamp No, 23 dated 08.02.2008 of immigration Karachi Airport.
The Exit Stamp No, 23 was allotted to FC Farhan Ahmed Qadr during the course of said duty".
Mumtaz Ahmed Baloch, Inspector FIA Crime Circle, Karachi stated that on 08.02.2008, he was on duty with said F.0 Farhan Ahmed, stated a: under: "FC Farhan Ahmed was on duty on that day in my Shift was assigned duty of CP/Stamps. He was also allotted the EXIT Stamp No, 23 of immigration Officer FIA, Karachi Airport (Pakistan)".
18. From the perusal of aforementioned evidence brought or record, during the inquiry proceedings it is evident that Stamp No, 23 was in the custody of present appellant, who himself in his reply t show-cause notice admitted this fact. Though had denied that he affixed the stamp on the disputed passport. But admitted in his reply to the charge sheet, that some one might have used Stamp No, 23 in his absence. This admission on part of appellant shows that appellant was it custody of Stamp No, 23, which was used on the passport of deported Abdul Hameed. All other witness examined in the inquiry proceeding had deposed the same, facts. So for the question that who affixed the Stamp No, 23 on the passport of Abdul Hameed is concerned, in the inquiry report there is no direct evidence against the appellant.
19. In view of above when the accused was acquitted by the court of law, further during the departmental proceeding there was no direct evidence that present appellant used Stamp No, 23 on the passport of deportee passenger Abdul Hameed. However, it is pertinent to mention here that said Abdul. Hameed though remained in custody of FIA but department had not taken any effort to record statement of tit; independent witness and destroyed this important piece of evidence. No doubt, it is provided from the evidence available on record that Seal No, was in custody of appellant, and due to his negligence it was misused.
20. In view of above circumstances and discussion supra in out opinion the appellant has been found negligent and failed to keep the Stamp No, 23 in safe custody. But there is no evidence against that appellant of misconduct and in these circumstances the major punishment of Dismissal from service is too harsh. Therefore looking to the present circumstances of the cases, we allow the appeal and set aside ;he impugned order dated 15.10.2008, and modify the punishment regarding "Dismissal from Service" to that of withholding of three increments for three years. The appellant is reinstated in service with all back benefits. Appeal is disposed of accordingly. No order as to costs.
21. Parties be informed accordingly.