Succinctly, when the appellant was posted as Deputy Superintendent of Police, Kahota and he remained posted there from 01.06.2009 to 23.07.2009. There he received an application by one Syed Manzoor Hussain Shah routed through the office of the Regional Police Officer, Rawalpindi on 25.06.2009 with a complaint that one Akbar alias Akkoo had committed an illegal act with a lady of the village of Sathwani, the Police Station Kalar Syedan, District Rawalpindi. The application was received in the office of the appellant on 25.06.2009. According to the complaint the alleged occurrence took place on 04.09.2009. After receiving the application, the Regional Police Officer, Rawalpindi Region passed the following order addressing to the SDPO, Kahota (appellant):-- "SDPO/ Khuta Please look into the matter and take necessary legal action and report by 30.06.2009".
2. The appellant received the application on 26.06.2009, summoned the parties for 26.06.2009 and passed the following orders addressing the SHO:-- {{URDU TEXT}} The Station House. Officer registered an FIR No. 159/2009 dated 26.06.2009 u/S. 276, PPC. The investigation of the case was entrusted to Mohammad Riaz, Sub-Inspector who got medically examined the accused Akbar alias Akkoo and victim Mst. Zohra Khanum.
3. As per opinion of the Medical Officer the victim was found as a mentally retorted person, whereas, the accused Akbar alias Akkoo was found to be fit to commit intercourse. The investigation officer submitted an incomplete report of S. 173, Cr.P.C. on 15.07.2009 after receiving the report of Chemical Examiner. The final report of ' 173/Challan was submitted on 29.07.2009.
4. It is pertinent to mention here that the appellant was transferred from the tehsil Kalar Kahar. The accused Akbar alias Akkoo moved an application for grant of pre-arrest bail in the Court of learned Additional Sessions Judge which was turned down on 26.08.2009. A news item was flashed in the daily Nawa-e-Wakat, that a person of 90 has been sent to the Jail in a false case of Zina.
5. The Hon'ble August Supreme Court of Pakistan took the notice and directed the District and Sessions Judge, Rawalpindi, to hold an inquiry into the matter and submit a report, The direction was followed in letter and spirit and the District and Sessions Judge, Rawalpindi after inquiry submitted a report before the then Hon'ble Chief Justice of Supreme Court of Pakistan upon which the Hon'ble Supreme Court was pleased to pass the following order: "Report prepared by learned Sessions Judge be sent to P.P.O. Punjab for compliance as suggested at "A" i.e. "SSP (Investigation), Rawalpindi should be directed to re-investigate the case himself and should give due consideration to all material available on the file i.e ocular evidence and medical evidence and if it found that the defective investigation was conducted due to influence of Khalid Jameel Paracha, DSP Legal Rawalpindi then the I.O. and the said DSP Legal should be proceeded against in accordance with law/rules. The SSP (Investigation), Rawalpindi should look into the case himself and should give due consideration to all material available on the file i.e. ocular evidence and medical evidence and submit report on 03.10.2009".
6. In the light of the above direction, the SSP Investigation, carried out the investigation and recommended for cancellation of the first information report also held guilty (1) Khalid Jameel Piracha, DSP (Legal), (2) Tanvir Javed Warraich, Inspector/SHO, Police Station Kalar Syedan, (3)
Mohammad Riaz, SI, (4) Asghar Ali, SI, (5) Khizar Hayat, SI, (Investigation Officers). They were compulsory retired from service but DSP Legal was placed under suspension by the Inspector General of Police, Punjab. The department also got registered an FIR No. 326/2009 dated 02.10.2009 under Section 155-D of the Police Order, 2002 against the abovementioned five of the Police Officials. The challan was submitted to the Court of competent jurisdiction and the learned trial Court was pleased to acquit the abovementioned five of the Police Officials, and they were accordingly reinstated into service..
7. That the Regional Police Officer, Rawalpindi also submitted the report to the Inspector General of Police, Punjab, Lahore stating that the case FIR No. 159/2009 dated 26.06.2009 u/S. 376, PPC, Police Station Kalar Syedan was got registered against Akbar Ali Alias Akkoo without verification of the actual facts. As result of the same the Inspector General of Police, Punjab passed the order for initiation of disciplinary proceedings against the appellant on the following charges:-- "(i) Syed Manzoor Hussain etc. submitted a complaint to RPO Rawalpindi stating therein that Akbar alias Akoo committed Zina with Mst. Zohra who is mentally upset.
The complaint was marked to DSP who without verifying the facts directed the SHO to register case FIR No. 159 dated 26.06.2009 u/S. 376, PPC, Police Station Kallar Syedan, District Rawalpindi was registered against the accused, a 90 years old person. The accused was arrested and challan on his direction. Later on, the case was re-investigated by Superintendent of Police Investigation, Rawalpindi under the directions of Hon'ble Supreme Court of Pakistan who concluded that the case was falsely registered to victimize an innocent person for settlement of a dispute. All this was done due to ulterior motives.
(ii) All this shows that he failed to perform his duty with efficiency and alacrity according to provisions of Police Order, 2002".
8. The Senior Superintendent of Pothohar Division, Rawalpindi (Kaniran Aadil) was appointed as an Inquiry Officer, afterwards, he was transferred and inquiry was entrusted to the S. S. P, Patrolling, Highway (Afzal Ahmed Kosar).
8A. After a detailed inquiry the appellant was exonerated. But the inquiry report submitted by him remained pending in the office of Inspector General of Police, Punjab till 12.02.2015 and then the appellant was summoned for personal hearing by the Inspector General of the Police, Punjab, who passed the order u/S. 13(3) of the PEEDA Act, 2006 for a denovo inquiry after lapse of more than four years.
9. The SSP Investigation (Haroon Joiya) was appointed as an inquiry officer. The appellant was served with a show-cause notice alongwith statement of allegations. Upon that the appellant filed his written reply and as a result of the denovo inquiry the appellant was held guilty and the Inspector General of Police, Punjab awarded the penalty of reversion to the appellant from Deputy Superintendent of Police to the rank of Inspector for a period of five years vide order dated 22.12.2015 which is the impugned order.
10.The appellant challenged the said impugned order through Writ Petition No. 47/2016 which was forwarded to the Home Secretary, Punjab Lahore with the direction to treat the same as an appeal and decide the same on merits upon that the Home Secretary, appointed Additional Secretary, Home Department (Mohainmad Khan Ranjha) as a hearing officer, who heard the appellant and found him as an innocent, while exonerating the appellant from the charges, the Home Secretary, referred the matter to the Special Secretary Home who disagreed the report of the hearing officer without giving any notice to the appellant in contravention to the law settled by the Hon'ble Supreme Court of Pakistan in 2013 SCMR 572. Both the parties have been heard at length on this point also.
11. Record reflects that it was necessary that the appellant should have been given a show-cause notice containing the reasons of difference so as to enable the appellant to meet those reasons but this was not done. The question has already been examined by this Tribunal as well as by the Hon'ble. Supreme Court in number of cases that even if the rules do not require furnishing of inquiry report to the accused for reply, in that case supply of inquiry report is necessary so as to enable him to defend the case properly. Reliance is placed on PLD 1981 (SC) 176, 1984 SCMR 451 and 1987 SCMR 1562.
According to law as laid down by the Hon'ble Supreme Court in cases 2013 SCMR 372 & 572 that the findings and the recommendations of the inquiry officer are not binding on the competent authority; still in case of difference of opinion with the inquiry officer, it is obligatory on the punishing authority to issued show-cause notice to the accused employee indicating cogent reasons for enhancement of penalty and to hear the accused before passing any order, but neither any such notice containing reason of enhancement or disagreement was given by the authority to the appellant nor was heard a that time. The other illegality apparent on the face of the record by the punishing authority was that he admittedly based the impugned order on the reports of Additional Secretary Home (Mohammad Khan Ranjha) but the appellant was not confronted with those of the adverse views nor the said Additional Secretary Home pass those adverse views in presence of the appellant. Even after obtaining such views the same were not confronted or furnished to the appellant to enable him to meet the same and defend himself against those adverse views. Thus he was condemned unheard, in so far as those adverse views of the said witness i.e. Additional Secretary Home were concerned such action of the authority was contrary to law as laid down by the Hon'ble Supreme Court of Pakistan in the following cases:- 2013 SCMR 817 It was categorically held that after close of inquiry the competent authority cannot obtain views of 3rd person, in absence of the accused employee and cannot based punishment without confronting the same to the accused. The relevant portion is respectfully quoted as under: "19 . . . . . . The competent Authority asked the Chief Engineer to submit a report in the preparation of which the respondent officers were admittedly not associated. The award of the penalty on the basis of said report was unreasonable and was squarely hit by the Wednesbury test of reasonableness. The enhancement of the penalty in the aforesaid referred circumstances was based on an extraneous material and cannot stand the threshold of the said test and therefore is not sustainable".
12.The role of the appellant is that he passed the order addressing the SHO to register an FIR. Then the SHO recorded the crime report in the shape of F.I.R. No. 159/2009, dated, 26.06.2009 u/S. 376, PPC, Police Station, Kalar Syedan. There is no role of the appellant except he pass the order as cited in Paragraph No. 2 at page 2 in (Urdu version).
13.The charge against the appellant was that the complaint was marked by him as a DSP without verifying the facts and directed the SHO to register the FIR as per complaint. The guideline and the principle has been settled by the Hon'ble Apex Court of Pakistan in PLD 2007 (SC) 539 in which the verifying the facts before the registration of FIR or investigation before the registration of FIR has been declared illegal and against the spirit of Sections 154, 155, 157 & 162 of the Code of Criminal Procedure, 1898. The relevant portion of the judgment is reproduced as under:--
(a) Criminal Procedure Code (V of 1898)-- --Ss. 154, 155, 157 & 162--Recording of F.I.R--Enquiry as to correctness or otherwise of information received by an Officer Incharge of Police Station for the purpose of being reduced in writing as F.I.R. and powers of Officer Incharge of Police Station to refuse to record F.I.R. only because, in his opinion, the allegations conveyed to him were false--Scope--No authority vested with an Officer Incharge of a Police Station or with anyone else to refuse to record an F.I.R. where the information conveyed, disclosed the commission of a cognizable offence--No authority vested with an Officer Incharge of a Police Station or with anyone else to hold any inquiry into the correctness or otherwise of the information which was conveyed to the S. H.O. for the purposes of recording an F.I.R. Any F.I.R. registered after such an exercise i.e. determination of the truth or falsity of the information conveyed to the S.H.O, would get hit by the provisions of Section 162, Cr. P.C.-Existence of an F.I.R. was no condition precedent for holding of an investigation nor was the same a prerequisite for the arrest of a person concerned with the commission of a cognizable offence; nor does the recording of an F.I.R. mean that the S. H.O. or a police officer deputed by him was obliged to investigate the case or to go through the whole length of investigation of the case mentioned therein or that any accused person nominated therein must be arrested--Check against lodging of false F.I.Rs. was not refusal to record such F.I.Rs. but punishment of such informants under S. 182, P.P.C, etc, which should be, if enforced, a fairly deterrent against misuse of the provisions of S. 154, Cr.P.C.-- Principles.
(b) Criminal Procedure Code (V of 1898)-- --S. 22-A(6)--Powers conferred under S. 22-A(6), Cr.P.C. on the Ex-officio Justice of the Pease-- Scope and extent--Only jurisdiction which could be exercised by an Ex-officio Justice of the Pease under S. 22-A(6), Cr.P.C. was to examine whether the information disclose by the applicant did or did not constitute a cognizable offence and if it did then to direct the concerned S. H.O. to record an F.I.R. without going into the veracity of the information in question, and no more--Offering any other interpretation to S. 22-a(6), Cr.P.C. would be doing violence could not be permitted--Legislative history of Institution of Ex-officio Justice of the Peace and powers conferred on them, traced. (552, 554, 555, 556) F, G, H, I, J & K.
13.In the light of above settled law and the principles the appellant as an SDPO/DSP having a supervisory jurisdiction was not competent to investigate the matter before passing the order for registration of FIR and he could only look into the contents of the application to the extent whether any cognizable offence was made out? The appellant was not competent to hold an inquiry regarding the veracity of the occurrence as mentioned in the complaint. He passed the order in the light of the principle settled for the registration of FIRs by the Hon'ble Supreme Court of Pakistan.
The show-cause notice issued by the Inspector General of Police, Punjab is against the settled law by the Hon'ble Supreme Court of Pakistan and was ab-inito void to the extent of the appellant, The appellant strictly acted in the light of the parameters of the settled law as given in the celebrated judgment i.e. PLD 2007 SC 539.
14.In the light of the above facts and circumstances and the law cited above I am of the view that no show-cause notice can be issued in contravention to the settled principles of law hold by the Hon'ble Supreme Court of Pakistan rather the settled law by the Hon'bie Supreme Court of Pakistan have the binding effects upon the executive and the judicial authorities: Reliance is placed on 2013 PLC (CS) 472. The appellant followed the settled law and have not committed any misconduct so the impugned order is suffering from illegality and is not sustainable in the eye of law.
14A. It has also been settled by the Hon'ble Supreme Court of Pakistan in 2009 SCMR 339, when the initial order is contrary to settled law then the whole proceedings are void and the superstructure built shall collapsed automatically as in this case.
15. No show-cause notice which is against the principle settled by the Hon'ble Supreme Court of Pakistan can be issued and no disciplinary proceedings can be initiated against the civil servant in this respect. So, the impugned order of the appellant does not falls within the parameters of the misconduct to the extent of the appellant. In this view of the matter, the impugned order suffers from illegality and is not sustainable in the eye of law. In this view of the matter, the impugned order is set aside and the appeal is accepted with full benefits as per law.