Tauqeer Ahmed Khan, Member. This is an appeal under Section 4 of the Service Tribunals Act 1973 through which the appellant assails the order of his dismissal _ from service dated 24.07.2020. His departmental appeal met with rejection.
2. Brief facts of the case, as disclosed in the appeal are that, the appellant joined Pakistan Rangers (Sindh) on 18.02.1998 and completed service for about 22 years and 05 months, performed his duties with dedication and devotion with utmost satisfaction of his superiors and having unblemished record.
While serving as Deputy Superintendent Rangers 91 Wing Abdullah Shah Ghazi Rangers, Karachi, a charge sheet dated 20.07.2020 was served upon the appellant under Section-15(1) of Pakistan Rangers Ordinance 1959 read with Rule-4 of the Pakistan Rangers (Efficiency, Discipline & Appeal)
Rules, 1967, containing the following allegations: "Misconduct in his capacity as a member of the Force, in that he, While serving in 62 Wing Bhittai Rangers Karachi (now 91 Wing Abdullah Shah Objazi Rangers) is charged on following offences:- a. Charge-1. While performing as Operational Officer 62 Wing Bhittai Rangers, Karachi from September 2018 to April 2020, illegally keeping/stealing a sum of approximately Rs.600,000/- (Rupees six lac) out of recovered amount from the houses of drug peddlers. b. Charge-2. While performing as Operational Officer 62 Wing Bhittai Rangers, Karachi from September 2018 to April 2020, illegally keeping 3 x pistols in personal possession recovered from criminals/dacoits during various raids, same were required to be handed over to Police for disposal. c. Charge-3. While performing as Operational Officer 62 Wing Bhittai Rangers, Karachi from September 2018 to April 2020, illegally keeping, 1 x CG 125 Honda Motorcycle and 4 x Mobiles Cell Phones in personal possession recovered from criminals/dacoits: d. Charge-4. While performing as Operational Officer 62 Wing Bhittai Rangers, Karachi from September 2018 to April 2020, facilitating execution of Wing Commander's illegal order of collection of black money for an unaccounted, unauthorized and undocumented black fund. e. Charge-5. While performing as Operational Officer 62 Wing Bhittai Rangers, Karachi from September 2018 to April 2020, using vested institutionalized powers in pursuit of personal interest thereby tarnishing the force's reputation. f. Charge-6. While performing as Operational Officer 62 Wing Bhittai Rangers, Karachi from September 2018 to April 2020, being sufficiently cognizant of the illegal activities of operations team, yet, not reporting any one in chain of command in writing and/or verbatim about maintenance of an unauthorized Command and operational fund. g. Charge-7. While performing as Operational Officer 62 Wing Bhittai Rangers, Karachi from September 2018 to April 2020, failed to ensure Standing Operating Procedure of conduct of operations/raid and instructions issued time to time by Headquarters Pakistan Rangers (Sindh). h. Charge-8. While performing as Operational Officer 62 Wing Bhittai Rangers, Karachi from September 2018 to April 2020, failed to ensure implementation of a transparent and accountable system of "in and out items" from confiscated items store. i. Charge-9. While. performing as Operational Officer 62 Wing Bhittai Rangers, Karachi from September 2018 to April 2020, being raid commander formally remained absent and ordered RI- 8024 Inspector General Duty Ahmed Hussain to execute raid without any officer's presence contrary to Standing Operating Procedure of Headquarters Pakistan Rangers (Sindh)."
Appellant submitted his reply dated 22.07.2020 to the charge sheet, denying the charges. Para-9 of the reply of the appellant to the charge sheet is reproduced for the sake of our convenience:- "9. Above in view, I deny all the allegations/charges due to all above mentioned reasons however charge wise reply of charge sheet is as under:- a. REPLY OF CHARGE-1:- I didn't keep nor steal Rs.60000/- during the raids, however during different raids recovered amount from drug paddler not from the houses but from the drug dens which was brought at Wing HQ was properly reported Wing Comd. I negate the element of keeping/stealing money from the houses RANGERS (DSR), V. THE SEC. MINK. OF INTERIOR GOVT. OF PAK.
[Federal Service Tribunal, Islamabad (Karachi Bench)] and it was told to the president of Board but he didn't mentioned in C of I. b. REPLY OF CHARGE-2:- I completely deny this charge because I keep 3 pistols in my possession during the period I was in 62 Wing for disposal of suspects to be booked in different cases and when I left 62 Wing Bhittai Rangers pistols were deposited in confiscated kote as you can check all recovered/confiscated weapons and held weapons are same.
REPLY OF CHARGE-3:- Being operation officer 62 Wing I used motorcycle but it was in knowledge of Wing Comd. And was handed over to Wing as I left the 62 Wing BR for 91 Wing ASGR on permanent posting o\anyone can check from 62 Wing. As far as 4 mobile phones are concerned, these were deposited on the same day of recovery from criminal dacoits. These cell phones recovered couldn't be used for personal use. d. REPLY OF CHARGE-4:- While performing operational officer 62 Wing BR from Sep 2018 to Feb 2020 I have not facilitated Wing Comd. For collection of black money. Infact I have forbidden Wing Comd. To do so that he didn't listen. 2 IC Major Abdul Hadi is witness of that incident. I have also stated the same statement to the board president but he didn't mentioned in C of I. e. REPLY OF CHARGE-5:- I was operational officer 62 Wing Bhittai Rangers Karachi from Sep 2018 to Feb 2020 and I have never used the power of personal interest and never ever compromise on force reputation. Thus it is false and baseless allegation. f. REPLY OF CHARGE-6:- Although being Operational Officer 62 Wing BR I had conducted sufficient raids in true letter and spirit and it was the same team who worked exceptionally well that's why I had trusted upon the team, however in few concerns/observation' I reported in chain of command verbally and few Operation team members were removed from their duties. However, where there is a concern of maintenance of an unauthorized command and operation fund it's register was prepared with the consensus of chain of command. g. REPLY OF CHARGE-7:I had conducted all raids by following all the instructions/SOPs (proper approval/ disposals) but occasionally there may be some flaws in conduct of raids which were probed by the board. But if there were some flaws those were properly reported in the chain of command. Violation of SOPS while conducting raids are nor specified in the charge. h. REPLY OF CHARGE-8:- As wholesome I had always insure proper implementation of in and out however if there is any irregularity probed by the board must be specified for the transparent and accountable system of "in and out" there was a dedicated operational inspector and sub- inspector and no deficiency of any item reported to me in chain of command. i. REPLY OF CHARGE-9:- Being operational officer 62 Wing Bhittai Rangers I have never ordered RI- 8024 Inspector General Duty Ahmed Hussain to conduct raid independently without any officer's presence".
It was stated in the appeal memo that without considering the reply of the appellant to the charge sheet, major punishment of dismissal was imposed upon him. His departmental appeal preferred against such punishment was rejected vide order dated 14.10.2020; hence, this appeal.
3. In the written comments, filed on behalf of the respondents, it was stated that the appellant misused his powers being uniform personnel, which was violation of Standing Operating Procedure and same was not part of his official duties. The appellant while performing duties in 62 Wing Bhittai Rangers was found guilty of misconduct, misused the powers and tarnished the image of the Pakistan Rangers (Sindh) and in this regard, proper Court of inquiry was conducted and finally was dismissed from service. His misconduct was of such a nature which does not entail for reinstatement in service, as such like of character person is unfit to be retained in Pakistan Rangers who has to protect the life and property of the citizens and the appellant was found involved by misusing his uniform with respect to civilian as such, exposed himself for disciplinary action which ultimately culminated in his dismissal from service on 24.07.2020 as 15 witnesses out of which 04 are civilian witnesses during the Court of inquiry proceedings had appeared against him and deposed against him and inspite of providing chance of cross examination to the witnesses, he had not availed the said chance and had declined. There is confessional statement and admission of guilt by the appellant regarding commission of misconduct which is sufficient for imposing the punishment of dismissal from service and after adopting the codal formalities he was finally dismissed from service. Proper Court of inquiry was conducted and statement of 15 witnesses were recorded, the appellant confessed his guilt. The appellant has chequered record of service, instances of which have been mentioned in the comments.
4. We have heard the learned counsel for both the sides at length and carefully gone through the record including the statement of witnesses placed by the respondents alongwith their comments.
5. Keeping before us the statement of allegations, we have to examine the statement of appellant first in order to show what he has admitted/confessed in his evidence, as stated by the respondents in their comments. It was stated at the bar during the arguments on behalf of the appellant that the statement of appellant was obtained while he was in custody and handcuffed, as such, his statement was obtained under duress, coercion and pressure. This arguments find force as one, against whom serious allegations are levelled and witnesses have deposed against him, would not 'decline to cross examine the witness'. He may say so when witness does not alleged against him and does not implicate him. Record has revealed that at the bottom of each witness' statement the word 'accused declines to cross examine the witness' has been typed, which is not possible and it is quite (sic) and unacceptable that accused/appellant decline to cross-examine each witness, even if he is implicated by the said witness. As such, it can be safely concluded that the statement of the appellant has been obtained under pressure and coercion, while he was under custody and hand-cuffed. We are fortified in our view by the judgments as reported in PLD 1996 Supreme Court 801 (Sabur Rehman & another v. Government of Sindh & 3 others) the Hon'ble Court has been pleased to observe that, "-- Confessional statement recorded by the Investigation Agency is inadmissible in evidence". The Sindh Service Tribunal in its judgment reported in 2000 PLC (CS) 1196 (Amanullah Ansari vs. Board of Intermediate and Secondary Education Sukkur through Chairman and another) has also observed that, ".... We are in agreement with the arguments of the appellant that the statement during the custody of the police have no evidentiary value, unless the same is recorded by 1st class Magistrate having jurisdiction of the concerned police station and after affording the full opportunity and warnings to the maker of the statements such as that he is not bound to make the statement, that he is not bound to make the statement, that the same statement may be used against him and that he is released from the police custody and at least two hours are given in chamber to think over then alone after the warning if he makes statement that statements can be used as confessional statement against the maker ...".
In the circumstances, we are of the considered view that Article 10A of The Constitution of The Islamic Republic of Pakistan, i.e. Right to fair trial, appears to have also been violated, which stipulates that, "for the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process".
6. Perusal of the record has further revealed that charges, as levelled in the charge sheet issued to the appellant, could not be proved through a proper and regular inquiry, when the appellant, as stated above, was not allowed to cross examine the witnesses nor was he allowed to produce his witnesses in defence, as such, the punishment imposed on the basis of such irregular inquiry, cannot be sustained. Even the charge sheet, as reproduced above, does not show specific instance i.e. date and time of incident, therefore, the charge itself is of vague in nature, (sic) and unspecific; hence on the basis of such a vague charge sheet impugned punishment too, could not have been imposed. In this context, we are fortified by a judgment as reported in 2018 PLC (CS) 99 (Mazhar Ilyas Nagi and others v. Governor, State Bank of Pakistan and others) the Hon'ble Balochistan High Court has been pleased to observe in para-11 that, "We have also gone through the findings of Inquiry Officer, it is pertinent to mention here that prior to inquiry proceedings an evasive and unspecified charge sheet was issued to the petitioner, which was replied by the petitioner satisfactorily, but during the course of inquiry proceedings, the respondents given fair and sufficient opportunities of producing witnesses against the petitioner, but however in contrary the witnesses of petitioner were not summoned by the Inquiry officer without assigning any plausible reasons and on the other hand, the petitioner was assured by the Inquiry Officer that no tangible incriminating evidence available by the prosecution against him, as such, there is no need for the petitioner to lead such defence evidence. While concluding the inquiry proceedings on such vague assurance to the petitioner, the Inquiry Officer recommended for imposition of major penalty to the petitioner by imposing reducing of Rs.25001- from his salary permanent as well as imposition of non-paying of back benefits to the petitioner". The Hon'ble High Court, after such conclusion, has been pleased to allow the petition of the petitioner therein.
7. Findings of the Court have also been perused by us carefully including its opinion and recommendations. The Court of inquiry recommended strict disciplinary action against Wing Commander Pakistan Army-38524 Lieutenant Colonel Muhammad Arsalan Ejaz Tehseen, but no action has been taken against him and he has been sent back to his parent department, it has been brought to our knowledge and lower in hierarchy, including the appellant, have been punished. Here we would like to reproduce the recommendations of the Court of Inquiry in respect of Lt. Col. Muhammad Arsalan Ejaz Tehseen: "(1) Maintaining an-unaccounted, unauthorized and undocumented private fund of Rs.6'417'150 (Rupees Sixty four lac seventeen thousand one hundred fifty) by deliberately transferring the public money allotted to wing for accomplishing approved tasks and diverting resources allocated for various tasks at the cost of Wing's operational/ internal security efficiency.
(2) Maintaining an-unaccounted, unauthorized and undocumented black fund of Rs. 1,711,570 (Rupees seventeen lac eleven thousand five hundred seventy) by deliberately ordering wing's operation team to collect black money from the houses of drug peddlers for deposit in un- accounted black fund.
(3) Keeping black money in his personal custody without accountable document/security, whatsoever.
(4) Using vested institutionalized powers for gathering black money confiscated from criminals in the name of Wing thereby blemishing the force's reputation.
(5) Not reporting any one in chain of command about possession of an unauthorized cash.
(6) Failing to ensure and abrogating Standing Operation Procedure of conduct of operations/raids and instructions issued time to time by Headquarters Pakistan Rangers (Sindh).
(7) Failing to institionalize such a system of reporting which should have been enabled him to acquire insight of illegal activities of under command. Complicit is' not expected to institute such system either.
(8) Producing forged register concerning maintenance of an-unaccounted, unauthorized and undocumented private fund of Rs.6'417'150 (Rupees sixty four lac seventeen thousand one hundred fifty) before the Court of Inquiry and resorting to perjury. Thereby, attempting to mislead the Court throughout the proceedings".
8. No independent witness has been examined during the Court of inquiry and the witnesses, examined, either Rangers Personnel or Drug Peddlers, and on the basis of such evidence, appellant has been punished. As we have already observed that such an inquiry is improper and the inquiry was totally irregular inquiry, where no fair, impartial and proper opportunity was provided to the appellant to defend himself, as such, the impugned punishment is uncalled for and not sustainable in the eyes of law thus liable to be set-aside.
9. In view of what has been discussed above, we are of the considered opinion that the appeal merits consideration and it is allowed accordingly with directions to the respondents to reinstate the appellant in service with an option to hold a denovo inquiry, against the appellant on the same set of charges in accordance with law. Inquiry be initiated and completed within a period of four months from the date a copy of this judgment is received in the office of respondents. If the inquiry is not held within the stipulated period, appellant shall be entitled to all the back benefits. The appellant is directed to fully cooperate and participate in the inquiry with full back benefits.
10. No order as to costs. Parties be informed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.