' SHAH ABDUR RASHID (CHAIRMRN).-The appellant, Nair Ahmad, was working as Inspector, Central Excise and Land Customs, at Bhakkar, with effect from 24th April, 1976. On 16th October, 1977, a complaint signed by 68 persons levelling different charges against the appellant was presented to the higher authorities, and the Assistant Collector, Faisalabad investigated the allegations made in the complaint, and in his opinion, there being a prima facie case, the appellant was suspended from duty with effect from 26th November, 1977, by order dated 8th November, 1977. On 17th December, 1977, the appellant was served with a charge-sheet containing six charges, and he was asked to explain why disciplinary action may not be taken against him. Out of six charges, only two are relevant. They are charges Nos. (i) and (iv), and read as follows :-
(I) that while posted as Inspector, Central Excise and Land Customs, Bhakkar, you defamed the Department by misusing your official position and taking bribe from the Karyana Mer- chants and other shopkeepers of Bhakkar.
(iv) that you visited the shops of different General Merchants of Bhakkar on different occasions on the pretext of checking as to whether or not smuggled goods of foreign origin were being sold there. On most of those occasions, you caused harrassment to the concerned shopkeepers and extracted illegal gratification from them.
2. The appellant replied to the charges on 22nd December, 1977, and thereafter on 31st December, 1977, Mr. S. M. Abidi, Assistant Collector, was appointed Inquiry Officer. He examined 14 witnesses in presence of the appellant and reported that the above-mentioned two charges have been proved against the appellant. About 4 other charges, the report of the Inquiry Officer was that these have not been substantiated.
3. On 22nd June, 1978, the appellant was served with a show-cause notice that according to the report of the Inquiry Officer, charges Nos. (i) and (iv) had been proved against him and that he should show cause as to why he should not be removed from service.
4. The appellant gave a detailed reply to the show-cause notice in which he raised legal as well as questions of facts and stated that neither of the two charges had been proved against him. The Authority, after considering the reply of the appellant, by order dated 12th September, 1978, passed an order of reversion of the appellant to the post of Steno typist, which he held before promotion to the post of Inspector. For the period of suspension, it was directed that he should be entitled only to the subsistence allowance already paid and that the said period shall not count as period of duty.
5. From the above order which had been passed by the Collector, Central Excise and Land Customs, Lahore, the appellant preferred an appeal to the Central Board of Revenue, which was rejected on 3rd April, 1979, and was communicated to the appellant on 5th May, 1979.
6. The learned counsel for the appellant has argued that the charges against the appellant have not been proved and that he had been made the victim on account of personal grudge of the merchants of Bhakkar. It is established from the record that prior to the filing of the complaint on 16th October, 1977 by the Union of General Merchants, headed by one Ch. Iftikhar, the appellant had reported that one Asghar Sadiq was trying to bribe him. A raid was conducted and Asghar Sadiq was apprehended while offering bribe to the appellant. On the basis of this incident, a First Information Report was registered at the Police Station on 10th October, 1977, but the fate of that case is not known. Only six days thereafter, a complaint dated 16th October, 1977 on the basis of which inquiry was started against the appellant, was made by several persons. There was then a background for involving the appellant as revenge. However, that fact alone would not absolve the appellant from the charges, though it would be a fact to consider whether the witnesses who had appeared before the Inquiry Officer, had been saying the true facts.
7. As already observed, out of the 68 persons, only 14 appeared before the Inquiry Officer. The principal witness, namely Ch. Iftikhar who is said to have obtained the signatures on the complaint, did not appear before the Inquiry Officer. Out of 14, six did not say anything against the appellant, but 8 persons deposed against him.
8. It is pertinent to note that although the Inquiry Officer under the rules can record evidence of witnesses on oath, none of the witnesses was asked to make the statement on solemn affirmation.
It has been (held by this Tribunal that if the witnesses are not examined on solemn affirmation, the procedure is irregular. We also endorse the view of the Tribunal reported in the case of Muhammad Akram v. Finance Secretary (I) in which this opinion was given by Full Bench. On the basis of this authority, therefore, there was no legal evidence on which the finding of guilt can be based.
9. Even if we take into consideration the evidence of the witnesses, in our opinion, the evidence when read, as a whole, does not establish the guilt of the appellant. Muhammad Ashraf, though he was a signatory to the original complaint, stated before the Inquiry Officer, that the appellant did not commit any irregularity, and that though some goods were taken from him by the appellant, those were returned to him, when the documents of the same were produced to him for his satisfaction.
10. Khalid Parvez, another signatory to the complaint, stated that he had nothing to say against the appellant. Mohammad Ali too stated that he had no complaint against the appellant. He is Vice- President of the General Merchants Union. He stated that whenever the appellant used to purchase anything from him, he used to pay the price thereof. He admitted that when the incident of Asghar Sadiq took place, the Merchants beratheri got provocated. Abdul Hameed also exonerated the appellant. He is only a tonga driver, and is not concerned with the duties of the appellant. Habib Akhtar Shah said that the appellant took from his shop a tin of Talcum Powder, on the pretext that it was a foreign manufactured material, and that the appellant took away the same for satisfying himself, and thereafter since the material was Pakistan manufactured, he made the payment therefor. The witness further stated that he had no crudge against the appellant, nor has he any complaint against him. This witness is the General Secretary of the General Merchants Association.
Basbir Ahmad, another witness, did not depose against the appellant. Mohammad Ikram stated that he had heard that the appellant had taken tape records from a shop without issuing the receipt, from one Zakaria. This part of the evidence has no relevance because Zakaria never deposed against the appellant, and the evidence in this respect is hearsay. The witness, however, stated that the appellant misbehaved with his servant. The Inquiry Officer has not found the appellant guilty of the charge of being drunkard or sodomist, and therefore, this evidence is not relevant to the charge stated to have been established.
' This witness admitted that Ch. Iftikhar had approached him to sign the complaint against the appellant. The statement of ' Rana Farzand {{FOOT NOTE}}
(1) 1977 PLC (C. S. T.) 81 {{FOOT NOTE}} ' All is also favourable to the appellant, inasmuch as, this shows that the witness had gone to recommend the case of one Bashir. He stated that the appellant used to come drunk to his place.
He also stated that the appellant demanded bribe, but when no bribe was given, he made a case against Bashir. The evidence of this witness is also not very material inasmuch as he was an aggrieved person because his request for helping Bashir was not acceded to. Mohammad Daud Khan stated that the appellant was living in his neighbourhood and used to drink every day. He also stated that he used to receive money from him and others. This evidence, though against the appellant, is of no value in view of the defence evidence which has been produced by the appellant and which we shall discuss presently.
11. Fazal Hach P. W. Also deposed against the appellant. The evidence of this witness can be rejected outright, because he is the father of Asghar Sadiq, who was hauled up by the Police on the complaint of the appellant.
12. Wahid All Khan also deposed against the appellant and stated that he had bribed the appellant for getting some favour. He also stated that he had sent the complaint at the instance of Ch. Iftikhar. The evidence of this witness too is not worth reliance, as he appears to be siding with Ch. Iftikhar, who had made the original complaint but had kept himself behind and has not appeared before the Inquiry Officer, Abdul Rahim also deposed against the appellant, but in the background of the incident which took place earlier, it is not safe to rely on his statement either. Rahim Bakhsh too deposed against the appellant, but strangely be stated that though the appellant had been indulging in corruption, he kept silent, and did not make any complaint to anybody. The statement of Zafar Abbas also deserves rejection on similar grounds.
13. It is pertinent to note that Hafiz Gbulam Mohammad, Khatib, Jamia Masjid appeared before the Inquiry Officer and dislodged the entire evidence against the appellant regarding his character. He stated that the appellant was residing in a house adjacent to the mosque and that he had never noticed any objectionable act in the house of the appellant. Some other witnesses also gave credits to the appellant.
14. In view of the facts that the evidence against the appellant is not free from doubt, and also because some respectable persons like a Khatib of a Jamie Masjid, have deposed in favour of the appellant, we are of the opinion that the charges against the appellant are not established. The veracity of the witnesses who have deposed against the appellant is more than doubtful in the light of the background in which the proceedings against the appellant were initiated. Apart from that, this is a case of no evidence because none of the witnesses were examined on oath, and their testimony is not worthy of any credit.
15. In view of our findings, we accept this appeal and set aside the order of the reversion of the appellant, and direct that he be re-instated to the post of inspector from which post be was reverted or to a post equivalent in grade to that of Inspector with effect from the date of his reversion. The period of suspension shall count towards duty and the appellant shall be entitled to full pay of that period. He shall also be entitled to the consequential benefits arising from setting aside the order of his reversion.
16. Parties to bear their own costs.