' MUHAMMAD IRSHAD KHAN (MEMBER).-The appellant, Mr. Farooq Ahmad Khan on qualifying the Central Superior Services Competitive Examination in 1954, was selected for P. S. P. After completion of his training and probationary period, he held a few postings in the Provincial Police. In early 1957 he was posted on deputation to the Frontier Constabulary as Assistant District Officer. In September, 1959 he was sent back to his parent department, the Provincial Police and thereafter held the posts of Additional Superintendent of Police and the Superintendent of Police in the various respective districts.
2. In April, 1969 Martial Law Regulation No, 37 and the Improper Acquisition of Property (Special Committee) Ordinance, 1969 were promulgated, whereby provisions for dealing with improper acquisition of property and wrong submission of return thereof by the Government Servants were made. The appellant was required to submit to the appropriate Special Committee, his declaration in this regard, which he did. He presumed that his declaration was cleared, as he did not hear anything to the contrary from the Special Committee.
3. A probe was conducted by the Anti-Corruption Department during 1967-69 for various allegations against the appellant. It appears that on the basis of the material of the said probe, action was initiated against the appellant under MLR 58 and he was suspended from service on 3rd December, 1969 where after a charge-sheet dated 29th December, 1969 accompanied by a Statement of allegations, was served upon him and he was required to show cause within 7 days of the date of service of the charge sheet on him as to why action should not be taken against him under paragraph 3 of Martial Law Regulation No, 58 for the following charges :-
(1) Whereas you Mr. Farooq Ahmad PSP (how under suspension) while posted as Superintendent of Police, District Campbellsport during the year 1966, by abusing your position as public servant, obtained material (sand and bajri) for construction of your Bungalow at Islamabad, free of cost and arranged the transportation of the said material free of cost through the transporters with the blessings of Police Traffic Staff who got false receipts of payment from transporters under your direction, you are, therefore, charged with being corrupt.
(2) And whereas, you issued orders for postings and transfers of Police officials on personal considerations and not on administrative grounds after obtaining tilegal gratification from them, you are, therefore, charged with being corrupt.
(3) And whereas, you utilized the Police officials for your private work and did not also reimburse any expenses incurred by them, you are, therefore, charged for misconduct.
(4) And whereas, you collected Rs, 5,000 monthly from the Traffic Staff who in turn accepted illegal gratifications from the transporters and drivers, you are, therefore, charged with being corrupt.
(5) And whereas, you received Rs, 1,300 from various Police officials who had collected this amount illegally during the Attock Mela of 1966, you are thus charged with being corrupt.
(6) And whereas, you accepted illegal gratification in cash and kind from the SHO's of various Police Stations of Campbellpur District as a motive or reward for posting them to Police Stations of their choice, you are thus charged with being corrupt.
(7) And whereas, you accepted petrol free of costs from the Traffic Staff for your private car, you are thus, charged with being corrupt.
(8) And whereas, you accepted illegal gratification from suspects in the interrogation Centre established at Talagang in connection with the arrest of Muhammad Khan a local out-law you are thus, charged with being corrupt.
(9) And whereas, you claimed transfer T. A. By train from ' Jacobabad to Campbellpur but the Railway record shows that you travelled by train upto Rawalpindi only and from Rawalpindi you went to Campbellpur by Road and thus deliberately misstated the facts in the TA bill, you are, therefore charged for misconduct.
(10) And whereas, you have been adversely reported by the Reporting Authorities in the Annual Confidential Reports for corruption and misconduct, you are, therefore, charged for misconduct and being corrupt.
(11) And whereas, you during the month of September, 1966 showed in records inspection of Police Station Pindi Gbeb but remained mostly at Bannu, you are thus, charged form misconduct.
(12) And whereas, you in the Annual Confidential Reports earned by you have been described as in-efficient, debauch and reported to be living beyond your means, you are, therefore, charged for ineffective Icy and assuming the style of living beyond your ostensible means."
4. A detailed reply running in 171 pages was submitted by the appellant to the Chairman, Military Tribunal No, 3, constituted for the purpose of MLR 58. The appellant denied all the charges and submitted a number of documents in his defence. After hearing the appellant in person and considering his explanation and other available material, the Tribunal recommended his dismissal from service, as it was satisfied that the appellant had indulged in corrupt practices and had been adversely reported in his ACRs, It was, however, observed by the said Tribunal that the allegations pertaining to the period of appellant's stay as S. P. At Campbellpur for about 5 months, had not been scrupulously investigated and that a reasonable doubt was created in the mind of Tribunal that the evidence might have been fabricated in respect of those charges, particularly charges mentioned in the charge-sheet at SI. Nos. 2, 5, 6, 8 and 11, to aggravate the gravity of the charges, it was further observed by the Tribunal that notwithstanding the guilt of the appellant, false fabrication of evidence by a Government Department should not go un-noticed and if it was found correct, the concerned agency/individual should be made accountable for fabrication of evidence.
It appears that thereon Col. Sher Ali Baz was deputed to make investigations in the matter. He submitted his investigation report on 2nd May, 1970 wherein he also reached the conclusion that most of the evidence relating to the charges Nos. To 9 had been malaciously collected by the Police and mainly from the Police and it may not be fair to accept such evidence as legally and morally sustainable. He, however, observed that the appellant did enjoy bad reputation not so much for corruption, but more so for misconduct and lack of good morals which was fully substantiated by his ACRs as well as by the independent evidence. In respect of charge No, I I, he expressed the view that the appellant had been visiting Bannu frequently "on french leave" as he possessed landed property there. The Investigation Officer further observed that the appellant had not been a responsible officer throughout his careeer and he conducted himself in a very irresponsible manner, had been indiscreet about his personal behaviour and utterly careless in his social contacts. The Investigation Officer was, however, of the view that the appellant's style of living could not be found beyond his means as he had inherited huge property and was very rich.
The Investigation Officer concluded that there seemed to be no justification to retain in Police Service, an officer of the type and having such character. On the other hand, the Investigation Officer recommended that the Anti-Corruption Department need to be warned for their part in concocting evidence and padding a case unnecessarily. On submission of the case to him, the President ordered dismissal of the appellant from service on 21st May, 1970.
5. The appellant contends to have submitted a representation against the said order of dismissal, to the then President in 1972 but apparently no action was taken thereon. He then invoked the writ jurisdiction of the High Court, but the proceedings were held to have abated in view of the provisions contained in Article 212 of the Constitution read with Service Tribunals Act, 1973. He then filed an appeal before this 'Tribunal on 24th August, 1974 but the same was dismissed by order of this Tribunal dated 20th November, 1977 for lack of jurisdiction. On an appeal preferred by the appellant, the Supreme Court, however, remanded back the case to this Tribunal for decision on merits and on question of law and facts. The appeal was, however, again dismissed by this Tribunal vide its order dated 14th October, 1980 as barred by limitation. The appellant again appealed to the Supreme Court which held the appeal in time and remanded the case again to this Tribunal for decision on merits.
6. We have heard Mr. Mumtaz Hussain, learned counsel for the appellant and Mr. S M. Shahudul Huque, learned counsel for the State. We have also perused the record of the case with the assistance of the learned counsel and the departmental representative Mr. Humayun Ishaq Chouhan, Section Officer in the Establishment Division. At his request we also heard the appellant in person.
7 Mr. Mumtaz Hussain, learned counsel for the appellant presenting his case with remarkable ability, attacked the impugned order on several grounds of law and facts. On legal plane he contended that the procedure required to be followed by MLR 58 itself was not followed in the proceedings against the appellant. He submitted that the opinion to be formed for the purpose of paragraph 3(1) of MLR 58 was to be formed by the authority in an objective manner, keeping in view all the facts and circumstances of the case and after giving a reasonable opportunity of hearing to the appellant by the authority itself. He suggested that according to the provisions of MLR 58 interpreted with the aid of authorities cited by him, the correct and proper procedure to be followed for taxing proceedings against the appellant was that charge-sheet accompanied by the statement of alligation should have been first served upon the appellant says' time to submit his explanation. The appellant was then to be given a hearing by the Tribunal wherefore he should have been given a prior notice of date of such hearing and the evidence on which it was based, and he should have been allowed during the hearing to cross-examine the witnesses and to produce defence and also to explain personally all allegations and material sought to be produced against him. Thereafter, a report was to be submitted by the Tribunal to the authority. On perusal of the Tribunal's report and the record of the case, the authority was to form a tentative opinion, which was to be communicated to the accused appellant mentioning the proposed action to be taken against him in terms of specific penalty and not in terms of one of the penalties prescribed by MLR 58. (PLD 1976 Lah. 1013 relied upon). This communication containing the fenative opinion of the authority and the proposed specific penalty, was to be accompanied by a copy of the Tribunal's report and the accused officer was to be given an opportunity of the explanation thereto and a personal hearing by the authority itself. (PLD 122LS C 176 relied upon). The learned counsel submitted that since the afore-suggested procedure was not followed at all, the proceedings taken against the appellant and the impugned order was nullified and vitiated ab initio. It was further contended by the learned counsel that the then President of Pakistan, who was the authority in the matter had passed the impugned order on a note submitted to him by some of his staff members wherein it was clearly mentioned that this officer was earmarked for dismissal followed by trial. According-to the learned counsel, the impugned action was thus predetermined and ma/a fide, hence void on this account also.
8. We have given an anxious consideration to the submissions made by the learned counsel and also gone through the authorities cited by him. It obviously seems to us that the aforesaid suggestion of Mr. Mumtaz Hussain is nothing else but an attempt to introduce the procedure of enquiry prescribed by the Government Servants (Efficiency and Discipline) Rules, 1960 in vogue during the relevant time, rather a more, comprehensive procedure, for dealing with the cases under MLR 58 also. We however, could not find any substance in the contentions of the learned counsel for the reasons that follow. It is well-known that MLR 58 was promulgated with the avowed object of weeding out the corrupt elements &sin the services. The title of the enactment clearly indicates that MLR 58 was enacted to provide a special procedure and stringent measures for removal of corrupt elements from services. It is a well settled principle of the interpretation of statute that the title of status is always relevant for interpretation of its provisions. To quote Maxwell, "it is now a settled law that the title of the Statute is an important part of the Act, and may be referred to for the purpose of ascertaining its general scope and of throwing light on its construction". Not only the title but the reading of the contents of MLR-58 as a whole also supports our above view. It may be pointed out that paragraph 1 of the said Regulation makes it a Supra Constitutional Legislation inasmuch as the provisions thereof are to have effect notwithstanding anything contained in the Provisional Constitutional Order, 1969, or any other law for the time being in force. This position is also manifested from the contents of paragraph 3(1) which provides that notwithstanding anything contrary contained in the terms and conditions of service of such person, the authority may dismiss or remove such person from service or reduce him in rank or direct that he shall prematurely retire from service. This being the object and intention of the framers of MLR-58, it would be too much to contend that the normal rules under which the civil servants had to be proceeded against in normal time, would take precedence over a Supra Constitutional Legislation. It does not require any special effect, of imagination to visualize that if the Military Tribunals had so brought into display the exercise under the normal law and rules vis- a-vis cases of more than 300 public servants, it would have taken more than ten years to conclude the cases, and thereby the very purpose of MLR-58 would stand defeated, Obviously, the framers MLR-58 were fully cognisant of this state of affairs and that is why they enforced a Supra- Constitutional Legislation to dispense speedy and effective justice to the accused civil servant by providing for communication to him the reasons for action against him, an opportunity of showing cause against such action and an opportunity of being beard in person by the Tribunal, appointed for the purpose. It was undoubtedly the intention of the framers of the enactment to folio the above said procedure in exclusion of all other laws, rules and even the principles of natural justice. It is a fundamental rule of interpretation of statutes that a statute is to be expounded according to the intent of them that made it. It is manifestly deducible from the above discussion that the framers of MLR-58 intended to provide a special procedure and therein to prescribe as mandatory only three prerequisite i. e. (1) Communication of reasons for proposed action (2) opportunity of showing cause and (3) personal hearing by the Tribunal. It, therefore, follows that any other requirements, conditions and technicalities, as well as the procedure laid down by the normal Efficiency and Discipline Rules, stood excluded for the purposes of MLR 58, by necessary implication, as well as by application of the maxim "Expressi-o unius est exclusio alterius", It is indeed a principle of logic and of common sense, and not merely a technical rule of construction that where certain specific things are given, it is definitely intended to exclude everything else even of a similar nature. Again, it is a familiar doctrine that, although where a Statute makes unlawful that which was lawful before, and provides a specific course of action, that course of action must be adopted, and no other.
9. Coming to the question of compliance with the rules of natural justice, we may first cite the frequently quoted dictum on the subject : - "The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so forth."
' Also the following passage from Judicial Review of Administrative Action, by S. A. De Smith (at page 109) may be quoted :- "The rules of natural justice are not rigid norms of unchanging content. Each of the two main rules embraces a number of sub-rules which may vary in their application according to the context. But it is clear that natural justice does not require that administrative adjudication be conducted in public or that reasons be given for decisions. And where the decision is made by a Minister or Government Department, as distinct from a special tribunal natural justice does not give the person affected any right to be heard before the officer, who in facts decides the issue, or to have that officer identified, or to see an inspector's report on an inquiry."
10. It may also be meaningful to quote the following dictums laid down by the Superior Courts of our own country :--- {{FOOT NOTE}} PLD 1961 Quetta 1(10) {{FOOT NOTE}} "A personal hearing before deciding a matter is not a necessary requirement of principle of natural justice. All that is necessary is a full and fair opportunity of making a representation or showing cause. What is a full and fair opportunity depends upon the facts of each case: In same cases it may be enough if a party has placed his point of view and has shown cause for the consideration of the authority and no prejudice is shown to have been caused," {{FOOT NOTE}} PLD 1965 SC 90(103) {{FOOT NOTE}} "What these principles of natural justice are it is not possible to lay down with any exactness, for, they have been variously defined in various cases, as was pointed out by the Judicial Committee in the case of the University of Ceylon v. Fernando Tuker, L.
1., said in Russel v. Duke of Norfolk (1) "the requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the Tribunal is acting, the subject-matter that is being dealt with, and so forth". Nevertheless, the general consensus of judicial opinion seems to be that, in order to ensure the "elementary and essential principles of fairness" as a matter of necessary implication, the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and "to correct, or controvert any relevant statement brought forward to his prejudice." Of course, the person, or body or authority concerned must act in good faith, but it would appear that it is not bound to treat the matter as if it was a trial or to administer oath or examine witnesses in the presence of the person accused or give him facility for cross-examining the witnesses against him or even to serve formal charge- sheet upon him. Such a person or authority can I obtain information in any way it thinks fit, provided it gives a fair opportunity to the person sought to be affected to correct or contradict any relevant statement prejudicial to him. In other words, "in order to act justly and to reach just ends by just means" the Courts insist that the person or authority should have adopted the above "elementary and essential principles" unless the same h. d been expressly excluded by the enactment empowering him to so ct."
11. On a careful consideration of the above authorities, we would observe that the "elementary and essential" principles of natural just care enshrined in the provisions of MLR-58 by providing for communication of charges against the accused officials to him, giving him a shorans notice, an opportunity of being heard in person and to produce his written or oral defence, whichever he chooses to provide. Specific men ion o these requirements in MLR-58, excludes all other requirements is and technicalities. The procedure thus prescribed for taking proceedings under MLR-58 was in consonance with the principles of nature justice also.
12. Now a brief discussion on the authorities cited by Mr. Mumtaz Hussain. The proper manner for forming an opinion laid own in PLD /964 SC 713 cited by Mr. Mumtaz Hussain, is relevant in the context of section 16 of Criminal Law Amendment Act, 1908 an= therefore, is not applicable to the proceedings taken under MLR-58. Moreover even the dictum laid down in the said authority does not in a y way, imply that in cases under MLR-58 the procedure suggested by Mr. Mumtaz Hussain is to be followed. Similarly 'opportunity to being heard' was enunciated in PLD 1970 Lah. 146 in the context of a proceeding taken against a student who allegedly copied the answers to a certain questions from a piper which he had in his possession hen he was taking the supplementary examination of the Punjab University for B. A. Degree. The said authority also, in our opinion, does not apply to the proceedings under MLR-58, in view of its special nature d scribed above.
13. In the case reported in PLD 1976 Lah. 1013, it was held t at noncompliance, by the competent authority with the provisions of rule 9 of the West Pakistan Government Servants (Efficiency and Discipline Rules, in that case materially prejudiced the defence of the accused public servant, and vitiated the order of the competent authority. Since, however, there is no provision in MLR-58 similar to. Rule 9 of the West Pakistan Government Servants (Efficiency and Discipline) Rules, the ruling is not relevant for the purpose of cases under MLR-58. The authority laid down in PLD 1981 SC 176 also does not help the learned counsel. For, the said authority is based upon a construction of Rules 5 and of the N.-W. F. P. Government Servants (Efficiency and Discipline) Rules which are not akin to the provisions of MLR-58. It may also be mentioned that one of the very relevant factors in that case was that all the details of the misconduct alleged in that case were not contained in the charge-sheet or the statement of allegations accompanying it and these were supplemented during the enquiry proceedings. However, in the instant case the position was not so and the appellant herein was made aware of all the details of the charges against him while charge-sheet a d statement of allegations were served upon him initially. In this view of the matter also, the said authority is not applicable to the present case. Therefore, even the authorities relied upon by the learned counsel do not advance his case anymore.
14. We are aware that two erstwhile learned members of this Tribunal, in Appeal No, 559(L)/1974, W.
A. Shaikh v. Pakistan and in a number of other cases has ruled that the provisions of the Efficiency and Discipline Rules of 1960 are not repugnant to the provisions of MLR-58 and that the three pre- requisites set out in para. 3(b) of MLR 58 as mandatory requirement shall have to be followed in the light of the procedure laid down in the Efficiency and Discipline Rules, and not in the summary manner in which the Military Tribunal dealt with the cases. In the view of the said learned members, the Efficiency and Discipline Rules survived for the purposes of MLR-58 also were to be followed in the proceedings thereunder.
15. With great respect, I do not agree with the view so taken by the said learned members of this Tribunal in view of the above conclusion and also for the added reasons that the two statutes i. e.
MLR 58 and the Efficiency and Discipline Rules of 1960 are not in pari materia on the grounds given above, and as such MLR-58 shall not have to be interpreted with reference to Efficiency and Discipline Rules of 1960. Evidently, the object of MLR-58 was to weed out the corrupt elements from the services and not to extend them the normal protection of Efficiency and Discipline Rules or any other law in vogue. On the contrary, MLR-58 can rightly be termed as a stringent measures taking away the normal protection from the Civil Servants so as to deal with the corrupt elements effectively.
16. At this stage I would also like to quote a dictum laid down by the House of Lords in relation to the appellate function of a Government department, though now it is of general application :- "Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of State the duty of deciding or determining question of various kinds, In such cases they must act in good faith and fairly listen to both sides, for that is duty lying upon everyone who decides anything. But I do not think they are bound to treat such a question as though it was a trial......They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view." (Board of Education V. Rice A. C. 179, per Lord Loreburn L. C.)
17. The following rule enunciated by S. A. De Smith on the basis of authorities of Superior Courts of England may also be quoted :- "In proceedings of a disciplinary character the nature of the allegations must be clearly specified beforehand so that the party concerned may have a proper opportunity to prepare his defence ; but the degree of particularity with which the charges must be set out may vary according to the degree of informality with which the proceedings of a tribunal may be conducted, and even where they are inadequately specified the defect may not be fatal if the "defendant" is not thereby prejudiced...e. g., because he is already conversant with their general nature or because he does not dispute the allegations of fact on which they are founded,"
18. Finally, borrowing the Wisdom from one of the authorities cited by Mr. Mumtaz Hussain i. e. PLD 1981 SC 176, we would like to, add that a dictum laid down therein is that if an omission, defect o irregularity in the conduct of the inquiry has not caused material prejudice to the accused official in the matter of his defence, then such an irregularity, omission or defect, would not by itself vitiate the action taken against him. On a thorough consideration of the entire case, we are of the opinion that even the omissions defects and irregularities alleged by Mr. Mumtaz Hussain in the proceeding against the appellant, had not caused any material prejudice to the appellant in the matter of his defence. Therefore, the proceeding cannot be said to have vitiated for any procedural defect or illegality therein. The contentions of Mr. Mumtaz Hussain on the legal plane are thus repelled and the irresistible conclusion would be that in the proceedings taken against the appellant, the procedure laid down in MLR 58 was carried out both in letter and spirit.
19. The contention of Mr. Mumtaz Hussain, suggesting vitiation of the impugned order, being pre- determined on the basis of a list wherein the appellant was earmarked for 'dismissal followed by trial', though at the outset impressed us yet ultimately was found without any substance. For, the departmental representative showed us, during the hearing, a number of other cases wherein also the notes submitted to the President contained the same remarks that those officers were earmarked 'for dismissal' in some cases and 'dismissal followed by the trial' in other cases. The President, nevertheless, ordered their re-in statements in service. Even in the case of the appellant, the President did not act strictly according to the alleged list but acting according to the recommendations of the Tribunal, he ordered only dismissal and not dismissal followed by trial.
This contention of the learned counsel, therefore, is also repudiated.
20. Notwithstanding our above conclusions, the case is to be examined by us on merits also as according to the well-settled position approved by the Supreme Court, this Tribunal is under obligation to examine the merits of the case and come to its own conclusion on the question whether the appellant was rightly dismissed or not. This brings us to the examination of propriety and correctness of the findings recorded by the Military Tribunal, which I do in the succeeding paragraphs.
21. In reaching the conclusion that the appellant had indulged in corrupt practices, the Military Tribunal appears to have taken into account mainly the adverse reporting in the ACRs of the appellant, and the depositions of a large number of persons mainly Police Officials recorded in the enquiry conducted against the appellant by the Anti-Corruption Police. Appellant's first of the main contentions in his defence was that his inherited and family resources were such that it was absolutely inconcievable for a person in his position to have resorted to the alleged petty corruption, and that the ethical standard of his family and its social and financial status and his education both in Pakistan and abroad were of such a high standard that it would have automatically prevented him from resorting to any kind of corruption. We are not oblivious of the fact that the appellant comes of a family of very sound financial position and he started service as a man of means, and similarly his wife also hails from a very rich family. At the same time we also know that the history of Public Servants is replete with examples where well-to-do Government officials could not resist temptations and indulged in corruption whereas some persons of meagre means stood upright and displayed their strength of character in resisting the avenues of earning easy money. It may be interesting to mention here that in the famous work `Arthshastra' of Kautilya written more than 2000 years ago, it is observed :- "Even as one cannot say about a fish in water when it is taking water and when it is not, so it is difficult to say about an official or duty when he is taking bribe and when he is not."
22. It, therefore, follows that the sound financial and social status of an accused, by itself, is no defence to the charge of corruption. It cannot be accepted universally that a person who joins service with a pile in his hand would never indulge in corrupt practices in life, although initially presumption may be in his favour. But when this presumption stands rebutted by his actions and omissions then this will be of no avail to him.
23. Regarding the depositions of Police Officials disclosing the alleged corrupt practices of the appellant, his explanation is that those depositions and allegedly false evidence was maliciously maneuvered by the Police Officers, who were his opponents. However, neither a direct enmity has been alleged by the appellant with all the Police Officials, who had deposed against him, nor it is convincing that such a large number of officials would make false statements making serious allegations against the appellant only at the instance of the opponents of the appellant. Indeed, unless and until a petty subordinate is sure of his allegations he would not come forward with the same as he is likely to be damaged when the same are found on enquiry as baseless. It may be added here that it is common knowledge that the reputation of an officer is best known to the officials working close to him. Moreover, the depositions of the Police Officials are not in isolation but stand corroborated by the depositions of some complete independent witnesses, recorded during the course of the anti-corruption enquiry against the appellant, and also the complaint of one Rab Nawaz to the Martial Law authorities. It can, therefore, be reasonably held that the depositions though mainly of Police Officials, recorded during the course of anti-corruption enquiry against the appellant constituted a relevant consideration for the Military Tribunal in reaching its conclusion.
24. In rebuttal of the charge of adverse reporting in the ACRs, of the appellant, he explained the main reason therefor in his reply to the charge-sheet as under :- "My entire trouble in service is due to the personal enmity of only two gentlemen i. e. Mr. Bangash first my Commandant, Frontier Constabulary and then my D. I.-G. Campbellpur and Mr. Sharif Khan formerly my I.-G. P. All other bad reports given to me by the other Police Officers is a direct consequence of the personal enmity of these two officers against me, the PSP is a very small and closed in cadre unlike other cadres of service like the C. S. P. Etc. Which consist of hundreds of officers. While on the other hand, in the P. S. P. There is only one I.-G. P. And ten to twelve D. I.-Gs.
With the result that if one senior officer forms an enmity with a particular officer all the Sr. Officers got prejudiced against the said officer and life is made difficult for him from all sides, because the very limited number of Senior Officers keep on meeting each other and naturally the strong adverse opinion of one Senior Officer against a particular officer also effects the other Senior Officers, who also get prejudiced against that particular officer."
25. It was further urged before us by the appellant himself and his learned counsel that the adverse remarks recorded in the ACRs, for 1960 and 1st January, 1961 to 19th April, 1961 were expunged, while those pertaining to the period of 10th July, 1966 to 23rd December, 1966 and 29th April, 1968 to 31st December, 1968 were under consideration of the Government for expunction on the appellant's representations and that the remaining adverse reports were never communicated to the appellant. Besides, a number of other lengthy reasons and stories are given in the appellant's reply to the charge-sheet, which I do not consider proper to reproduce herein. It was, therefore, contended that the adverse reporting in the appellant's ACRs, could not be taken into consideration for forming a view in respect of the appellant.
26. We have carefully gone through all the available ACRs, of the appellant and explanations thereto given by the appellant, as well as the record of the proceedings before the Military Tribunal.
We also considered the submissions made before us.
27. A note on the file of the Military Tribunal containing comments on the appellants's explanation indicate that in the view of the Tribunal, the stories attributing bias and prejudice against a dozen seasoned Police Officers, who had adversely reported in the respective ACRs, of the appellant, were unbelievable and unworthy of giving any credence. We may observe here that the appellant has asserted specific malice and direct enmity against only his two reporting officers namely Mr. Bangash, the then Deputy Inspector-General of Police and Mr. Sharif Khan, the then Inspector- General of Police. It seems to us illogical that the remaining senior Police Officers in recording adverse reports acted under the influence of the two above-named officers.
28. It is correct that the adverse remarks contained in the pen picture column of the appellant's ACRs, relating to 1960 and 1961 were expunged under the orders of the Provincial Government and, therefore, are not to be taken into consideration. However, we have noticed that appellant's representation for expunction of adverse remarks relating to 1964 was considered by the Provincial Government but was rejected. We could not find anything on the available record to indicate that any other representation of the appellant for expunction of adverse remarks is pending for consideration. Be that as it may, the alleged pendency of the representations of the appellant for expunction of adverse remarks and also the alleged non-communication of the remaining adverse reports cannot be held to be valid grounds for keeping these reports out of consideration.
Looking at the matter from this angle and totally disregarding and ignoring the expunged remarks and even the other reports recorded by M/s. Bangash and Sharif Khan, OUT objective appraisal of the remaining ACRs, of the appellant, also. Does not at all help in forming a view favourable to the appellant.
29. For the foregoing reasons, we are inclined to conclude that the findings recorded by the Military Tribunal were justifiable. At the same time, the appellant had fifteen years' service at his credit and considering the nature of charges and other circumstances of the case, the quantum of punishment would appear to be much severe. We accordingly alter the penalty and reduce it from dismissal to premature retirement from service with proportionate pension and all other retirements' benefits. But for this modification the appeal is otherwise dismissed with no order as to costs.
' SHAH ABDUR RASHID (CH AIRMAN).--I entirely agree with my learned brother, Mr. Muhammad Irshad Khan, on points of law as well as on the conclusion. Our predecessor Tribunal in different cases has struck down the actions taken under MLR-58 on legal grounds, In one of the cases, it was held that in spite of the provisions of MLR 58, the provisions of the Government Servants (Efficiency and Discipline) Rules, 1960 were applicable. In another case, reference was made to the provisions of Articles 177, 178 and 185 of the 1962 Constitution and aid was from the Provisional Constitution Order promulgated on the abrogation of the said Constitution. Article 3(1) of the Provisional Constitution Order provided that the State of Pakistan shall be governed as nearly as may be in accordance with the said Constitution. The Tribunal observed that Article 3(1) kept intact the constitutional guarantees enacted in Articles 177, 178 and 185 of the 1962 Constitution. In my opinion, an appeal to the Government Servants (Efficiency and Discipline) Rules, or for that matter to Article 3(1) of the Provisional Constitution Order read with Articles 177, 178 and 185 of the 1962 Constitution, is wholly out of context in view of the constitutional protection given by the 1973 Constitution by Article 270(4) thereof, to the action taken under MLR-58 and other Martial Law Regulations and Orders. In fact, in case Article 212 of the 1973 Constitution had not been enacted, the persons affected by an order passed under MLR 58 would not have any remedy except when the order affecting them was established to be mala fide or without jurisdiction. The same view was taken by the Supreme Court in the case of Federation of Pakistan v. Saeed Ahmed Khan(l) . At present, when deciding an appeal from an order under MLR 58, we have to see whether procedure provided for in the said Regulation has been followed or not, and further whether on the evidence available to the Military Tribunal, the charges were established or not. Even the procedural defects would not entitle a civil servant to get an unless such defect caused prejudice to him. Any other interpretation would defeat the very purposes of protection given to actions taken under MLR-58 which was enacted to weed out undesirable persons by a procedure which though summary was in accordance with the rules of natural justice. In this particular case, we are not convinced that there was any procedural error going to the root of the case or prejudicing the appellant in any manner.
' On facts, the Military Tribunal has positively found that the appellant is guilty of charges Nos. 10 and 12. Besides that, the Military Tribunal has made the following observation : "The court is also reasonably satisfied that the officer has indulged in corrupt practices in respect of Charges 1, 3 and 7, but the evidence at present available would not stand scrutiny in an open trial." {{FOOT NOTE}}
(1) PLD 1974 SC 151 {{FOOT NOTE}} ' It appears that Col Sher All Baz was entrusted with the inquiry in this case. He made a thorough investigation and came to the conclusion that charges Nos. 1 to 9 are not established, and that the evidence in respect thereof had been maliciously collected mainly from the Police.
' On charge No, 10, Col. Sher Ali Baz made the observation that the accused officer does enjoy bad reputation not so much for corruption, but for misconduct and lack of good morals. He has in respect of Charge No 12, insomuch as it relates to the style of living of the accused officer beyond ostensible means, observed that the style of living of the accused officer was not beyond his means.
' Reading the finding of the Military Tribunal and investigation report of Col. Sher Ali Baz together, it would appear that there is some difference of views between the two with regard to the accusation against the appellant that he was corrupt or living beyond his means. In these circumstances, giving the benefit of difference to the accused officer, and agreeing mostly with Col. Sher Ali Baz who made the inquiry on the spot, we hold that charges Nos. 1 to 9 and the second part of charge No, 12 have not been established.
' On charge No, 11, the Military Tribunal has not given any finding, though Col. Sher Ali Baz did suspect that the appellant used to remain absent from duty off and on. In any case, since the Military Tribunal has not given any positive finding on charge No, 11 and have not found him guilty of that charge, it is not necessary for us to discuss it any further. The finding naturally would be in favour of the appellant.
' We are now left with charge No, 10 and the first part of charge No, 12, both of which are based on the ACRs, recorded by different officers. As far as charge No, 10 is concerned, it relates to corruption and misconduct. As regards the integrity of the appellant, the reports for the years 1957 and 1958 show that he was considered honest by the Reporting Officer. In 1959, about integrity the Reporting Officer observed that the accused officer was "above reproach". In 1960 and 1961, the same officer, Mr. A. N. K. Tareen, reported that the appellant was believed to be corrupt because of other than monetary consideration. Again, in 1962, he was reported upon as "Incorruptible". The reports for the years 1960 and 1961 were not communicated as a whole, but in the pen picture, the adverse remarks relating to the moral character of the appellant were communicated, but on his representation they were expunged. In the reports for 1963 and 1964, his moral integrity was rated as "Average" and there were no other adverse remarks with regard to his integrity. But, again in 1965, it was observed that the moral integrity of the officer was "Very Good". This remark was repeated in the first half of the year 1966, though in the second half of the same year, his moral integrity was stated to be doubtful and it was observed that there had been general complaints of corruption against the appellant. The pen picture relating to the moral integrity for the second half of the year 1966 was communicated to the appellant, and he recorded thereon that he would make a representation against those remarks. However, we have not been able to trace from the record as to what happened to his representation. In 1967, with regard to the moral integrity no remarks were made, but in 1968 the moral integrity was rated as "Average". Reading all the reports together, we do get an impression that the moral integrity of the appellant was not above reproach, though we cannot positively find him guilty of indulging in any corrupt practices on the basis of these reports alone. There being no other evidence, we do not find it safe to hold the appellant to be morally corrupt, though, in respect of monetary considerations, and we are convinced that the charge has not been established.
' As regards the second part of charge No, 12, we are in agreement with the Military Tribunal that the accused officer was inefficient for Police service, and this is established when the reports for different years are read as one document.
Since we have found the appellant guilty of 'inefficiency' only, we think that the punishment of dismissal for that charge is rather harsh, especially in view of the fact that the appellant has spent a good number of years in Government service. We, therefore, agreeing with Mr. Muhammad Irshad Khan, Member, reduce the penalty from dismissal to that of compulsory retirement, without any bar to future employment elsewhere.