MALIK ZAWWAR HUSSAIN (MEMBER).--Bhai Khan ex-Constable No. 180, District Police, Faisalabad has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Government of the Punjab through Inspector-General of Police, Punjab, Lahore, Deputy Inspector-General of Police, Sargodha Range. Sargodha and Superintendent of Police, Faisalabad as respondents. By virtue of this appeal he has prayed that the order of his dismissal from service passed by the Superintendent of Police, Faisalabad, dated '18-10-1981, the order of the Deputy Inspector-General of Police, Sargodha Range, Sargodha, dated 18-10-1981 and that the Inspector-General of Police, Punjab, Lahore, dated 1-2-1983 be set aside and he be re-instated into service with all back benefits.
2. Brief facts of the case are that the appellant was served with show--cause notice under rule 6
(3) of the Punjab Police (Efficiency & Discip--line) Rules, 1975 for major penalty including dismissal from service due to his misconduct on the allegations that he had relation with Mushtaq Masih a notorious thief and Motor-cycle lifter. It 'was also alleged against the appellant that he had helped the said Mushtaq Masih in dis--posing of the stolen property including a Suzuki Motor-cycle for which a case F.I.R. No. 500/80 was registered at Police Station, Kotwali, Faisalabad and that the said motor-cycle was given by Mushtaq Masih to open Gulzar Ahmad, the real brother of the appellant on a nominal price. The appellant submitted reply-to the show-cause notice and denied his relation with Mushtaq Masih. The appellant was heard in person by the Superintendent of Police who was not convicted with the defence of the appellant, hence he dismissed him from service.
The appellant filed an appeal to the Deputy Inspector-General of Police which was dismissed vide an order dated 18-10-1981. His revision before the Inspector-General of Police, Punjab, Lahore also met the same fate as it was also dismissed vide order dated 1-2-1983. Hence this appeal.
3. We have heard the learned counsel for the appellant as well as the learned District Attorney on behalf of the respondents. It has been argued on behalf of the appellant that Gulzar Ahmad, the brother of the appellant and Mushtaq Masih were prosecuted in the Court of Law for an offence under section 411, P. P. C. And were acquitted under the orders of Mian Kamal-ud-Din, Magistrate 1st Class, Faisalabad vide order dated 30-1-1982. It has further been argued that the Superintendent of Police while holding the accused guilty of the charge, had placed reliance on the case diaries of case F.I.R. No. 505/79 under section 511 of Police Station Kotwah and has relied on the so-called admissions of the appellant before the Investigating Officer. It has been submitted that since the evidence against the appellant consisted of oral statements, so it was a fit case in which a regular enquiry should have been conducted and the Superintendent of Police has committed illegality by resorting to the procedure under rule 6 (3) of the Punjab Police (Efficiency & Discipline) Rules, 1975.
It has further been submitted that the appellant had no relation with Mushtaq Masih and that he had no knowledge of the sale of stolen motor-cycle to his brother. On the other hand the learned District Attorney has adopted the parawise comments filed by the respondents and has submitted that the impugned orders are perfectly legal and are based on the admissions of the appellant before the Investigating Officer and thus no exception can be taken against the impugned orders.
4. We have given 'our anxious thoughts to the arguments of the parties and have perused the record. We see much force in the argu--ments of the appellant that the Superintendent of Police has relied only on the case diaries of the theft case of Police Station, Kotwali and has taken into consideration the statements of the appellant, as an accused made before the Investigating Officer. We are afraid that the Superintendent of Police had committed an illegality by placing reliance on any such statement which was available in the Police file. Since the evidence against the appellant comprised only of the admission of the appellant before the Investigating Officer so it was incumbent upon the respondent to have appointed an Enquiry Officer and cited the said Investigating Officer as witness against the appellant, to enable, the later to cross-examine him Thus, the procedure of show-cause not adopted by the Superintendent o Police has caused grave miscarriage of justice to the appellant and is an arbitrary exercise of jurisdiction vested in the Superintendent of Police. We do not see any force in the arguments of the appellant that since Mushtaq Masih and Gulzar Ahmad the brother of the appellant were acquitted as such Departmental action was uncalled for. The reason is that Mushtaq Masih and Gulzar Ahmad were not acquitted on merits and honourably and they were only acquitted because the prosecution failed to produce the witnesses in the Court.
5. In view of the above analysis we accept the appeal and set aside the impugned orders. The appellant shall be re-instated in service, so that he may have a status of a civil servant and be amenable to the Efficiency and Discipline Rules for the purpose of facing the regular enquiry as suggested above. The period out of service shall be treated as an extra-ordinary leave without pay.
There will be no order as to costs.