Asim Akram, Member.--The facts giving rise to this appeal are that the appellant while performing duty in the respondent-department was called in the orderly room on 12.09.2018 to explain the fact regarding video clip received through Whats-App by the DIG (Operation), Islamabad wherein he was allegedly visible of taking illegal gratification from different motorcyclist. However, the authority was unsatisfied on the reply given by the appellant and decided to issue him a Show Cause Notice dated 18.09.2018 whereby a charge of misconduct/inefficiency was levied upon the appellant on the ground of receiving aforesaid video clip through Whats-App as mentioned above under Rule 6 sub-Clause 3(i)(a)&(b) of Punjab Police E&D Rules, 1975 as adopted by the Islamabad Capital Territory Police, Islamabad. By following the show cause notice, the appellant was again called in orderly room on 26.09.2018 to defend his case. However finding him guilty of gross misconduct a major penalty of dismissal from service was imposed upon him vide impugned order dated 26.09.2018. Feeling aggrieved of the decision, the appellant submitted his departmental appeal on 28.09.2018 but the same was rejected vide departmental final order dated 29.09.2020. Hence the instant appeal has been filed by the Appellant on 14.07.2020 before this Tribunal.
2. The learned counsel for the appellant has assailed the impugned order as well as appellate impugned order inter-alia on the grounds that while imposing the impugned punishment on the appellant the respondents have intentionally violated the principal of natural justice by violating the procedure as prescribed under the law. It is further argued by the learned counsel that in the present case no charge has been proved through a regular inquiry. In the present case, the claim of the respondents depends on the anonymous video clip received by the DIG (Operation), Islamabad but the authenticity of the same has not been proved or verified at any level. Moreover, in the absence of any complaint or complainant the appellant cannot be punished by adopting summary procedure when the charge was not proved, therefore, the impugned action of the respondents is against the law and rules which cannot be sustained.
3. The respondents have vehemently opposed the appeal by filing their objections in this appeal wherein it is stated that the appellant while posted at Police Station Kohsar, Islamabad was deputed on road to check the illegal movements and in the video clip received by the DIG (Operation), Islamabad through Whats-Aapp, it was clearly visible that the appellant was guilty of taking illegal gratification from the motorcyclist and as per Rule 6(ii) E&D Rules, 1975 summary procedure was adopted wherein adequate opportunity was provided to the appellant to defend him but he has failed to defend the charge levied against him. Hence, a major penalty of dismissal from service has been imposed upon the appellant in accordance with law and rules, therefore, the instant appeal is liable to be dismissed being filed without cogent footings.
4. We have heard the learned counsel for the appellant and the departmental representative of the respondents. We have also perused the record carefully.
5. Perusal of the record reveals that the whole of the disciplinary proceedings have been initiated on the basis of anonymous vide clip received by the DIG (Operation), Islamabad. However no formal complaint, number and name of the sender has been mentioned in whole of the disciplinary proceedings neither the details of number on which the said video clip was received has been given. In absence of the sender identity or any written complaint the said video clip amounts to an anonymous message which was received by the said DIG (Operation). Furthermore, no date of occurrence of incidence alongwith specific place has been provided while initiating proceedings against the appellant even at the stage of arguments before the Tribunal. Moreover, the whole case depends on the anonymous video clip whose authenticity at the first step needs to be assessed or verified through a forensic report as was not done in this case rather simply levied charged upon the appellant without placing any documentary evidence regarding details of his duty roaster at the place of occurrence of incident on the specific date. It is also worth mentioning here that initially a video clip was received by the DIG (Operation), Islamabad who if instigate the proceedings would be a complainant in the matter and a man cannot be a judge in its own cause.
In the case at hand the DIG (Operation) has initiated the proceedings, investigated the matter, decided for adoption of summary procedure and gave its ruling of imposition of major penalty of removal from service. In the scenario, all the proceedings initiated by the DIG (Operation), being complainant himself is against the law and is set aside.
6. The word "Misconduct" has been defined in Rule 2 Sub-Clause (iii) of Punjab Police (E&D) Rules, 1975 but it does not deal with the Audio/Video clip as evidence. To make the Audio/Video clip as evidence in the proceedings authority can be drawn from Article 164 of the Qanoon-e-Shahadat Ordinance, 1984 which reads as under: "164. Production of evidence that has become available because of modern devices, etc.: In such cases as the Court may consider appropriate, the Court may allow to be produced any evidence that may have become available because of modern devices or techniques."
[Provided that conviction on the basis of modern devices or techniques may be lawful]
7. The Hon'ble Supreme Court of Pakistan in the case reported as PLD 2019 SC 675 (titled as Ishtiaq Ahmed Mirza and others vs. Federation of Pakistan and others) has drawn specific guidelines regarding admissibility of Audio/Video evidence to be followed in criminal proceedings, which are reproduced, as under for reaching at the ends of justice.
"Following are the requirements for admissibility of an audio tape or video in evidence before a Court of law and the mode and manner of proving the same before the Court:
(i) No audio tape or video could be relied upon by a Court until the same was proved to be genuine and not tampered with or doctored.
(ii) A forensic report prepared by an analyst of the Provincial Forensic Science Agency in respect of an audio tape or video was per se admissible in evidence in view of the provisions of Section 9(3) of the Punjab Forensic Science Agency Act, 2007.
(iii) Under Article 164 of the Qanoon-e-Shahadat Order, 1984 it laid in the discretion of a Court to allow any evidence becoming available through an audio tape or video to be produced.
(iv) Even where a Court allowed an audio tape or video to be produced in evidence, such audio tape or video had to be proved in accordance with the law of evidence.
(v) Accuracy of the recording must be proved and satisfactory evidence, direct or circumstantial, had to be produced so as to rule out any possibility of tampering with the record.
(vi) An audio tape or video 'sought to be produced in evidence must be the actual record of the conversation as and when it was made or of the event as and when it took place.
(vii) The person recording the conversation or event had to be produced.
(viii) The person recording the conversation or event must produce the audio tape or video himself.
(ix) The audio tape or video must be played in the Court.
(x) An audio tape or video produced before a Court as evidence ought to be clearly audible or viewable.
(xi) The person recording the conversation or event must identify the voice of the person speaking or the person seen or the voice or person seen may be identified by any other person who recognized such voice or person.
(xii) Any other person present at the time of making of the conversation or taking place of the event may also testify in support of the conversation heard in the audio tape or the event shown in the video.
(xiii) The voices recorded or the persons shown must be properly identified.
(xiv) The evidence sought to be produced through an audio tape or video had to be relevant to the controversy and otherwise admissible.
(xv) Safe custody of the audio tape or video after its preparation till production before the Court must be proved.
(xvi) The transcript of the audio tape or video must have been prepared under independent supervision and control.
(xvii) The person recording an audio tape or video may be a person whose part of routine duties was recording of an audio tape or video and he should not be a person who has recorded the audio tape or video for the purpose of laying a trap to procure evidence.
(xviii) The source of an audio tape or video becoming available had to be disclosed.
(xix) The date of acquiring the audio tape or video by the person producing it before the Court ought to be disclosed by such person.
(xx) An audio tape or video produced at a late stage of a judicial proceeding may be looked at with suspicion.
(xxi) A formal application had to be filed before the Court by the person desiring an audio tape or video to be brought on the record of the case as evidence."
8. Further in the judgment of Hon'ble Supreme Court reported as 2021 SCMR 1077 (titled as Member (Administration); Federal Board Of Revenue and others--Petitioners versus Mian Khan-- Respondent) it was held that "no regular inquiry was conducted by the petitioner Department and the same was dispensed with on the ground that the other evidence in the shape of CCTV footage is so authentic that major penalty can be imposed upon the respondent in the absence of regular inquiry and while imposing the major penalty CCTV footage was made the sole criterion to proceed against the respondent. It is an apathy that the said CCTV footage was never sent to the office of Forensic Science Laboratory for its authenticity. In the absence of any forensic report qua the authenticity of the CCTV footage, the same cannot be considered a legal basis for proceeding against a person."
9. In the case at hand video clip is not even from CCTV footage rather has been received from ananymous number and the sender has not come forward to file a complain. In such scenario without evaluation of authenticity of the video clip imposition of major penalty solely on same is against the principle of natural justice. Also without applying the guidelines of the Hon'ble Supreme Court in the case referred to above, the anonymous Audio/Video clip cannot be made basis to held an individual guilty of misconduct in disciplinary proceedings through a summary procedure.
Such kind of a matter requires a detailed regular inquiry to prove the genuiness of the Audio/ Video evidence.
10. In view of foregoing facts, we are of the opinion that a detailed inquiry is required to probe the authenticity of Audio/Video clip, hence the impugned order dated 26.09.2018 as well as departmental appellate order dated 29.06.2020 are not legal and carries no weight, therefore, the same are hereby set aside. The appellant stands re-instated into service. However, the respondents are directed to probe the matter in appropriate manner by adopting the following directions given below:
(i) A denovo inquiry be initiated in accordance with law and rules by appointing an independent inquiry officer to probe the Video Clip received through WhatsApp.
(ii) To record the evidence of the complainant sending the video clip after obtaining his number, name or the one who received the same on his number by mentioning the date and place of the incident as visible in the video clip alongwith the details of duty roaster of the appellant at the placed of incident.
(iii) To verify the authencity of the said Vido Clip a forensic report, should also be evaluated alongwith transcript of the said video clip by the inquiry officer.
With the aforesaid directions, the appeal succeeds. However, the question of back benefits of the interevening period shall depend on the outcome of the denovo proceedings as well as shall be determined in the light of instructions contained in ESTACODE (Edition 2015). Let the entire exercise be completed by the respondents preferable within a period three months under intimation to the Registrar Office.
11. There shall be no order as to costs. Parties be informed in accordance with rules.