Asim Akram Member. The facts giving rise to this appeal are that the appellant being an ex- employee of Frontier Corp was charged of misconduct for trespassing the house of a civilian, Abdul Waheed, with evil intentions and by doing so had earned bad repute for the institution. After conducting the Court of Inquiry, the appellant was Dismissed from service vide order dated 08.08.2017 (Impugned Order) against which the appellant filed a departmental appeal which was not responded by the respondents. Feeling aggrieved the appellant filed a writ petition before Peshawar High Court. After declaration of the Frontier Constabulary men as in service of Pakistan and their service appeals be heard by the Federal Service Tribunal (the Tribunal) by the Supreme Court of Pakistan in civil appeal titled 'Commandant, Frontier Constabulary vs. Gul Raqib Khan and others (2018 SCMR 903) the appellant withdraws his writ from PHC on 29.06.2019 and filed the titled appeal on 28.06.2019, against the impugned Order.
2. The learned counsel for the appellant has opposed the charges levied against him on the ground that Court of Inquiry is illegal during which the appellant was put to question and answers which is against principles of law and justice. Also, the charged levied against the appellant does not fall within the ambit of Section 9 (p) of the Frontier Corp Ordinance, 1959 (the Ordinance) under which he has been punished. The counsel further objected that dismissal from service is not described in Section 10 of the Ordinance. As such the appellant has been dealt with against the law and rules. On this score, the learned counsel for the appellant has prayed for setting aside the impugned penalty order.
3. The learned counsel for the respondents has vehemently opposed the appeal primarily on the question of jurisdiction and the appeal at hand being time barred. The counsel contended that the charge of misconduct for entering the house of a civilian with evil intention has been proved against the appellant and proper procedure as laid down in the Frontier Corps Rules, 1961 (the Rules) has been followed for conducting the inquiry and giving ample defence opportunity to the appellant. The counsel further contended that appellant misconduct has earned a bad repute to the institution. and has prayed for dismissal of the subject appeal being file without any cogent reasons.
4. Before proceeding upon merits, we would like to address question of jurisdiction raised by the respondents. The question of Frontier Crop employees being civil servants has to be dealt with in accordance with Article 240-A and Article 260 of the Constitution of Islamic Republic of Pakistan, 1973 (the Constitution). If the individual falls within the parameters prescribed in the said Articles then as per Article 212(1)(a) of the Constitution read with Section 2(b) of the Civil Servants Act, 1973 the Tribunal has the jurisdiction to hear his service appeal. The issue of jurisdiction has been settled by the Tribunal in Appeal titled 'Rahat Khan vs. IG, FC numbered 21 (Q)-CS/2020 whereby it has been declared that the Frontier Corp employees are persons in service of Pakistan and the Tribunal has jurisdiction to adjudicate upon matters involving their terms and conditions of service in accordance with principles set by Hon'ble Supreme Court in Frontier Constabulary case referred above. Relevant paragraphs of the judgment in Appeal No. 21(Q)-CS/2020 are reproduced as under: "appellant was an employee of Frontier Corps, established under Frontier Corps Ordinance, 1959 (the Ordinance) and the services of the employees are regulated under Frontier Corps Rules, 1961 (the Rules) formed under Sec. 26 of the Ordinance. Section 3 of the Ordinance empowers Federal Government to maintain the Frontier Corps for better protection and administration of the external Frontier of Pakistan within the limits of or adjoining Tribal Areas of Pakistan. Section 5 of the Ordinance empowers Federal Government to appoint Commandants and other officers of any unit of the Frontier Corps. Every Commandant and other officers so appointed shall possess, and may exercise, such powers and authority over the subordinate officers and members of the Frontier Corps under their command as provided by or under this Ordinance. Section 6, of the Ordinance delegates to the Commandant. Section 6 of the Ordinance authorized the appointment of subordinate officers and other members of the Frontier Corps to the Inspector General or the Commandant in such manner and subject to such condition as may be prescribed. Section 26 of the Ordinance empowers Federal Government to make rules in order to provide terms and conditions of service of the officers and members of the Frontier Corps.
7. The terms and conditions of service of the appellant, employee of Frontier Corps, is regulated by the Ordinance and elaborated as per the Rules, made under the authority given by the Ordinance.
As per Article 240(a) the services of the person in Service of Pakistan has to be according to an Act of the Parliament. The term used "by or under" in the Article 240 of the Constitution authorizes the terms and conditions of a civil servant to be provided by statue or statutory rules. The terms and conditions of Frontier Core passed the test as the same had been made under the authority given by the Act of the Parliament. In view of the above the employees of the Frontier Corps falls within the definition of Service of Pakistan and are civil servants in terms of the judgment referred to above. As per Article 212 of the Constitution read with Section 2(b) of the Civil Servants Act, 1973, the Tribunal has the jurisdiction to adjudicate upon the service matter relating to the Frontier Corps. As such the objection of the respondents regarding jurisdiction of this Tribunal stands overruled."
5. Second preliminary objection raised by the respondents is regarding the service appeal being time barred. It is admitted fact that departmental appeal was filed on. 15.08.2017 which was not responded by the Appellant Authority, feeling aggrieved the appellant filed a Writ Petition No. 419- P/2017 before Peshawar High Court. The writ petition was withdrawn on applicant's request on 29.05.2019 with a permission to approach the proper forum for the redressal of his grievance, if so advised. The appeal at hand was filed within 30 days of withdrawal of the writ petition. Prior to Gul Raqib Khan judgment by Supreme Court, referred above, there was ambiguity about the forum of service appeal by the employees of para-military formations in Pakistan and the appellant during that ambiguity approached the writ jurisdiction of High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. As soon as he came to know of the judgment, he withdrew the writ and filed the appeal at hand with in time. In such scenario the objection of the appeal being time barred is not sustainable and is hereby set aside.
6. The services of the Frontier Corp are regulated by Frontier Corp Ordinance, 1959 (the Ordinance) and procedure to follow the Ordinance is laid down in Frontier Corp Rules, 1961 (the Rules). The Ordinance describes two set of crimes More heinous offences described by Section 8 with separate course of trial and punishments. Less heinous offences are described by Section 9 of the Ordinance with their punishments described in preceding Section 10. The offences whose punishments have been described in Section 10'of the Ordinance can be disposed of through summary trial and its procedure is described in Rules 7 of the Rules. To reach the ends of justice it would be appropriate to reproduce Section 10 of the Ordinance and R.7 of the Rules, as under; Section 10 of Frontier Corp Ordinance, 1959
10. Summary Punishments. (1) The Inspector General may, subject to any rules made under this Ordinance summarily award, in lieu of or in addition to suspension, 1 [Compulsory retirement,] removal, or dismissal from service, any one or more of the following punishments to any member of the Frontier Corps whom he considers to be guilty of disobedience, neglect of duty or remissness in the discharge of any duty, or of rendering himself unfit to discharge his duty, or of other misconduct in his capacity as a member of the Frontier Corps, that is to say:--
(a) reduction in rank;
(b) fine to any amount not exceeding one month's pay and allowances;
(c) detention in quarters for a term not exceeding one month;
(d) rigorous imprisonment for a term not exceeding two years, with or without drill, extra guard, fatigue or other duty;
(e) removal from any office of distinction or special emolument in the Frontier Corps;
(f) extra guards and picquets; 1 [(g) forfeiture of increment in pay;]
(h) in the case of Junior Commissioned Officers and non commissioned officers, reprimand or severe reprimand: Provided that the punishments specified in clauses (c) and (d) shall not be awarded to Junior Commissioned Officers.
2[(1A) The Inspector General may delegate, to such extent and in respect of such Frontier Corps as he may think fit, the powers conferred upon him by sub-section
(1) to the Deputy Inspector General]
(2) A Commandant may, in respect of members of the Frontier Corps subordinate to him exercise the powers conferred on the Inspector General by sub-section (1): Provided that a Commandant shall not award imprisonment for a term exceeding one year, or, in the case of a Junior Commissioned Officer the, punishment of reduction in rank.
(3) A Commandant may delegate, to such extent as he may think fit, the powers conferred upon him by subsection
(2) to any person appointed under Section 5 who is under his command.
R. 7 of Frontier Corp Rules, 1961
7. When for any reason to be recorded in writing the Inspector-General, the Deputy Inspector- General, the Commandant or any other person to whom powers of punishment have been delegated by the Commandant, considers it necessary in the interest of the public service to hold a summary trial of a member or members of the Frontier Corps accused of offences which in his opinion can be adequately dealt with by the punishments laid down in Section 10, he shall proceed to do so forthwith in the following manner:-
(a) The accused shall be summoned by the trying officer and the nature of the alleged offence communicated to him.
(b) The accused shall then be called upon to furnish his defence which would be determined by the trying officer.
(c) The statement of the accused in his defence and the evidence of defence witnesses, if any, need not be recorded. The record of a summary trial shall be maintained in the form prescribed in Schedule III.
7. From the perusal of R.7 of the Rules it is clear that there is no concept of inquiry or Court of inquiry designated in the Rules. The law and the rules allow Summary Trial for the punishments mentioned in Section 10 of the Ordinance which deals with less heinous offenses described in Section 9 of the Ordinance. A Summary Trial can be conducted, if in the opinion of Commanding Officer, the accused can get convicted of punishments laid down in Section 10 of the Ordinance. In the case at hand a Summary Trial was conducted which was typographically subjected as: Court of Inquiry, such a typographical mistake does not invalidate otherwise legal proceedings. All the relevant witnesses were summoned, their statements recorded and were cross-examined and after evaluating the officers conducting the summary trial found the charged proved upon the appellant. The objection raised by the counsel for the appellant does not carry weight and hereby set aside.
8. The counsel for the appellant has objected to the question put to the appellant during the Summary Trial proceedings. Frontier Crop (FC) is operated and regulated through the Frontier Corp Ordinance, 1959 and Frontier Corp Rules, 1961, respectively. Civil Servant (Efficiency and Discipline)
Rules are not applicable upon FC men, it is a special force created under special law. It is settled principle 'that where there is special law, it will overrule general law. The departmental proceedings or the Summary Trial as they are called in R.7 of the Rules calls for summoning of the accused and communication of the charge, levied upon him. The accused could reply to the charge in writing and produce defence witnesses. If the officer/officers conducting the summary trial does not consider it appropriate, the statement of the accused and the defence witnesses need not be recorded.
9. It is a principle of common prudence that to evaluate authenticity of a statement the one who is rendering the statement is put to questions. Eleven witness including the appellant rendered statements which were cross-examined to reach the end of justice. Cross-examine is always in the form of a question put to the witness and taking his statement. The concept of question and answer, which is discouraged by the Apex Court in departmental proceedings, is where no statement of the witness/accused is recorded and they are put to question, answers. In the cases at hand the appellant/witnesses got recorded their statements and were cross-examined thereafter. There is no illegality in cross-examining the accused or the witnesses.
10. The counsel for the appellant has further objected to the scope of Section 9(p) and said that appellant cannot be dismissed under Section 10 of the Ordinance as the punishment of dismissal is not described in the section. To meet the ends of justice it would be appropriate to reproduce the relevant clauses;
9. Less heinous offences. Every member of the Frontier Corps who-- (a)
(b)
(p) is guilty of any act or omission which, though not specified in this Ordinance, is prejudicial to good order and discipline;
10. Summary punishments. (1) The Inspector General may, subject to any rules made under this Ordinance summarily award, in lieu of or in addition to suspension, [Compulsory retirement, removal, or dismissal from service, any one or more of the following punishments to any member of the Frontier Corps whom he considers to be guilty of disobedience, neglect of duty or remissness in the discharge of any duty, or of rendering himself unfit to discharge his duty, or of other misconduct in his capacity as a member of the Frontier Corps, that is to say:--
(a) reduction in rank;
(b) fine to any amount not exceeding one month's pay and allowances;
(c) detention in quarters for a term not exceeding one month;
(d) rigorous imprisonment for a term not exceeding two years, with or without drill, extra guard, fatigue or other duty;
(e) removal from any office of distinction or special emolument in the Frontier Corps;
(f) extra guards and picquets; 1 [(g) forfeiture of increment in pay;]
(h) in the case of Junior Commissioned Officers and non-commissioned officers, reprimand or severe reprimand: Provided that the punishments specified in clauses (c) and (d) shall not be awarded to Junior Commissioned Officers.
2[(1A) The Inspector General may delegate, to such extent and in respect of such Frontier Corps as he may think fit, the powers conferred upon him by subsection (1) to the Deputy Inspector General]
(2) A Commandant may, in respect of members of the Frontier Corps subordinate to him exercise the powers conferred on the Inspector General by sub-section (1): Provided that a Commandant shall not award imprisonment for a term exceeding one year, or, in the case of a Junior Commissioned Officer the, punishment of reduction in rank.
(3) A Commandant may delegate, to such extent as he may think fit, the powers conferred upon him by sub-section (2) to any person appointed under Section 5 who is under his command.
(Emphases attached)
11. From perusal of Section 9(p) of the Ordinance it is clear that this sub-clause is of general nature with very broad scope. As house trespass has not been mentioned in other sub-clauses 3 of S. 9, sub-clause (p) does have an ambit and the appellant was rightly charged and convicted under the said sub-clause. Furthermore, the appellant's counsel objection regarding dismissal under Section 10 does not carry the weight. Section 10 of the Ordinance empowers the Inspector General, FC or other officer, to whom the power is conferred, to impose a penalty of suspension, compulsory retirement, removal, or dismissal from service in lieu or along with other punishments mentioned therein.
12. Now, coming to the merits of the case, it is admitted fact by both sides that the appellant went into the house of one civilian, Abdul Waheed, on 04.03.2017. As per appellant's statement he received one accidental fire-arm injury when Abdul Waheed was showing his pistol to him. He went to the picket of Khasadar, nearby and received initial dressing. The appellant does not disclose the nature of injury at the picket rather said to have met an accident. During cross-examination the appellant admitted that the house of Abdul Waheed was beyond the area of operation of the appellant. The appellant in his statement alleged that Abdul Waheed was his informer and he used to visit his house.
13. Abdul Waheed while appearing as witness admitted his relations with the appellant and his periodical visits at Waheed's house. Abdul Waheed stated that on the day of incident his second wife Mst. Raj Bibi, who also appeared as witness, insisted him to go to market and take their son along. Due to her strange behavior he got suspected and left the house not for the market but to hide himself at a distance where he could see his house. When Abdul Waheed saw an individual entering his house he rushed to the place and upon opening the door, fired three bullets under the bed from where the appellant came out with bullet injury in his leg. The appellant allegedly said to Abdul Waheed to let the matter go as he will not let any body know of the incident but Abdul Waheed locked both, his wife and the appellant, in the house and rushed to the Khasadar post to inform about the incident. He was confined at the post as there was a bomb blast in the area and the post was short of men by that time who could proceed to the place of incident. When Khasadar reached the spot, the appellant was not there.
14. Mst. Raj Bibi, second wife of Abdul Waheed, stated in her statement that her husband left the house at about 0700 hrs and after his departure the appellant entered the place. Abdul Waheed came back to the house in 2/3 minutes and fired three bullets at the appellant. Abdul Waheed went out of the house while locking the door from outside. After sometime FC and Khasadar persons reached the house. During the cross-examination she said that the door hook was opened by the appellant with a piler supplied by her. Abdul Waheed and Raj Bibi during their witnesses particularized the reasons of the appellant going to the house of Abdul Waheed which do not collaborate with the statement of the appellant rather strengthen the view that the appellant went to the house with some ill will.
15. From the statement of both Abdul Waheed and his wife Raj Bibi collaborated circumstantial evidence of blood stains at the floor, empty and Abdul Waheed reporting the incident to the Khasadar post, it is established that Abdul Waheed was not at his house when the appellant entered the premises. Abdul Waheed on returning to his house saw the appellant at his residence and fired the bullets among which one hit the appellant on his leg. On this pretext, the appellant's statement that he went to the residence of Abdul Waheed along with him and he received accidental fire-arm injury when Abdul Waheed was showing him his pistol stands nullify. In the conclusion of the summary trial proceedings the charge of misconduct by trespassing the house of Abdul Waheed stands proved.
16. The appellant was imposed a penalty of dismissal from service vide order dated 08.08.2017 and the record was stored in the format as mentioned in the Rule 7 of the Rules and described in Scheduled III of the Rules. As such we find no illegality while passing the impugned orders dated 08.08.2017 & 31.08.2017.
17. In the reasons given above, we need not to interfere with the orders dated 08.08.2017 & 31.08.2017 being passed in accordance with the Ordinance while following the procedure described in the Rules. The appeal lacks merit and is hereby dismissed.
18. There shall be no order as to costs parties be informed.