' Malik Mukhtar Ahmad former, A. S. I. Has filed this appeal under section 4 of the Punjab Service Tribunals Act of 1974 in which he has impleaded S. P. Attock, D.
1.-G. Rawalpindi Range and Police Punjab, Lahore, as respondents.
2. By virtue of this appeal he has prayed that the impugned orders dated 9th September, 1979, dated 18th June, 1980 and 17th January, 1981 be set aside and he be re-instated in se-rvice with all back benefits.
3. The brief facts of the case are that on 2nd April, 1979 the appellant along with Constables Ghulam Aksar No, 356 and Sher Bahadur No, 652 went to village Sakha Kot (N.-W.F.P.) for the arrest of accused (P.
0.) in Case No, F I R SOP/78, under section 457/380, P. P. C., P.. S. Hazro. According to the prosecution the appellant did not get the permission of his S. P. Under whom he was working. On the same date the appellant was found checking traffic near Attock Khurd which he was not authorised to do. At about midnight on the same day S. P. Attock Mr. Mushtaq Ahmad, found, while on usual patrol duty some children sitting on the roadside at Attock Khurd who according to the prosecution had been stopped by the appellant on the pretext of having recovered from them some smuggled goods. In this matter he was surprised by Ch. Mushtaq Ahmad S. P. Attock himself. It is also stated that the said Ch. Mushtaq Ahmad recovered Rs, 2,000 from the appellant in presence of Sher Bahadur A.S.I., Habib-ur-Rehman Driver H. C. No, 530 and Rashid Ahmad Constable No, 42 which amount according to Ch. Mushtaq Ahmad S. P. Was extorted by the appellant from various truck drivers as illegal gratification. There were also many other complaints concerning the conduct of this appellant which came to notice of the said S. P. Ch. Mushtaq Ahmad who brought the appellant back to Attock. Under the orders of Ch. Mushtaq Ahmad the then S. P. Attock, a preliminary enquiry was ordered which was conducted by the D. S. P. Headquarter, who found the appellant guilty of number of charges. The S. P. Issued him show-cause notice containing six charges, heard him personally and dismissed him from service invoking rule 6(3) of E & D Rules. He filed an appeal before D. I.-G. Which was dismissed in toto while the I.-G. P. Taking into consideration his length of service converted the punishment of dismissal into compulsory retirement. Hence this appeal.
4. We have heard the learned counsel for the appellant Mr. M. A. Riaz and the learned District Attorney assisted by P. I. Attock and have perused the record of this case carefully with their assistance.
5. The learned counsel for the appellant has submitted that it is a case in which the prosecutor has acted as a Judge in his own cause and has depended upon enquiry, preliminary in nature, in which the appellant was never associated and had no chance to defend himself. It has been further submitted that as the S. P. Himself has caught the appellant indulging in nefarious activities like corruption, harassm ent and violation of Police Rules, therefore to meet the ends of justice, fair play and equity it was necessary that all these matte s should have been enquired into at length through a full-fledged enquiry as provided in rule 6(4) of the Police E & D Rules and the case should have been ultimately decided by another Officer of the same/higher rank, as the present competent authority, in this case was the most important and vital witness of the entire allegations. For this he has relied on In re: Muhammad Mohsan Siddiqui v. Government of West Pakistan(I). The learned counsel has further submitted that in the case, of appellant he was not even apprised of the contents of preliminary enquiry which, was made the basis of his punishment so as to enable him to put up in proper defence. This according to learned counsel is in clear violation of the rules of natural justice and for this purpose he relied upon 1980 SCM R 850, 1981 PLC 99, as well as on Qadir Akbar v. Div. Sup. Pak. Railways 1980 PLC 898 (S).
6. On the other hand the learned D A has submitted that as far as the objection raised by the learned counsel for the appellant about the competency of the S. P. (Mushtaq Ahmad) who was the prosecutor himself he would over no comments except that appellant did not raise this objection before the competent authority in his reply to the show-cause {{FOOT NOTE}}
(I) PLD 1964 C 64 {{FOOT NOTE}} ' notice. The learned D. A. Has left it to the judgment of this Tribunal to decide this issue authorised with oral controversy this legal issue. With regard to the facts of the case the D. A. Has submitted that the appellant himself has accepted many of the allegations as correct in his reply to the show-cause notice although evasively and that he was given full opportunity of hearing by the competent authority as well as the higher authorities. The learned D. A. Has also controverted the allegation of the appellant that he was not associated with the preliminary enquiry relying on the observation of the S. P. In his judgment that appellant was associated with the said enquiry.
According to the learned D. A. The appellant has been treated with leniency by the I. G. P. Who taking into account his length of service, converted the penalty of dismissal into compulsory retirement. Therefore, the appellant despite his misconduct and criminal activities has been treated in a benign manner.
7. I have given my anxious thoughts to the contentions raised by the parties and cannot remain oblivious of the fact that Ch. Mushtaq Ahmad, S. P. Attock, was undisputedly the person who himself saw the children being harassed and also seized money from the person of the appellant which was produced by the appellant in the presence of number of witnesses. In this way this fact cannot be controverted that the S. P. (Competent authority) was the most vital witness of all these allegations and could not be a Judge in his own cause. The violation of this fundamental principle of justice goes to the very root of the case and whenever the facts similar to the present situation came before the superior Courts of this country they did not hesitate to strike down this method of dispensation of justice. In the case of Muhammad Mohsan Siddiqui their Lordships of the Supreme Court found that District and Session Judge could not decide the fate of his Stenographer himself when he had himself initiated a complaint against such person. May be in a primitive society such like procedure as adopted in the case of appellant may go uncondemned but the same cannot be upheld when the civilization has advanced and the citizens as well as civil servants have been allowed to claim treatment in accordance with law as laid down in the rules, which have been confirmed by Supreme Court of this country. If we look into the Islamic jurisprudence, the golden principle of justice that nobody would be allowed to sit as Judge in his own cause, the same is found fully enshrined.
8. We have also held in a number of cases that where there is an allegation of corruption against a civil servant it is not proper that summary proceedings under rule 6(3) be held by departmental authorities. We have repeatedly emphasised necessity of regular and formal enquiry 9 under rule 6(4). The present case also suffers from that Lacuna and it was not a fit case in which formal enquiry could have been dispensed with.
9. ' In the light of my above discussion and in view of the law laid down by the Supreme Court of this country as well as the history of Islamic Justice, I am of the considered opinion that the action taken against the appellant by the competent authority who himself was of prosecutor cannot be sustained. I am constrained to observe that this aspect of the case was ignored by the appellate authority as well as the revisional authority when the case of the appellant was before them. I, therefore, proceed to accept the appeal, set aside the impugned orders as being absolutely of no legal effect and direct that the appellant be first re-instated in service so that he should have a status of civil servant and be amenable to B & D Rules for the purpose of facing regular enquiry under rule 6(4) afresh. Needless to observe that the competent authority in this case would be some other S. P. Besides Ch. Mushtaq Ahmad the Ex-S. P. Of Attock District. There will be no order as to costs..