1. MUSHTAK ALI KAZI (CHAIRMAN).-Appellants A. S.-I., Talib Shah and S: I., Muhammad Saleem of Umerkot Police Station having been found guilty of misconduct were dismissed from service. Their departmental appeals and revision applications were also dismissed. They have accordingly preferred these service appeals under section 4 of the Sind Service Tribunals Act, 1973. The brief facts of the case are that S. 1. Muhammad Saleem S. H. O. Umerkot Police Station received information that one Akbar Rehman's would bring smuggled silver from India to Umerkot by G. M. C.
2. Truck of Inayat Rehman's on 21st February, 1980. As S.-I. Muhammad Saleem had been assigned V. I.
3. P. Duty at Digri on that day due to visit of D. M. E. A., he instructed Incharge A. S.-I. Talib Shah to secure the accused and the smuggled silver and to take no further action and make no entry in the Station Diary nor in the 154, Cr. P. C. Book till his return.
4. A. S.-I. Talib Shah alongwith the Head-Constable and two Police Constables took the taxi jeep of one Taj Muhammad Rajar on Chachro Read in the desert and waited at the distance of two miles from Umerkot. At about 6-00 a. m. a jeep of Haider Nohri coming from desert side was stopped by the Police party and the jeep and its four passengers were searched. Police secured three silver rods from Aziz Nohri and Rs. 2,400 and Seiko wrist watch from the other passengers. At 7.00 a. m. a G. M. C. Truck was stopped and one Amin Rehmoo., an Indian national was caught with smuggled silver rods weighing about 15 kgs. On the same day at about 2.00 p, m. The police party stopped a G. M. C. Truck coming from village Doha and secured from the top of the truck two bundles, one of which contained 9 silver rods belonging to one Akbar son of Ishaque Mehmood. The 9 rods weighed 5 kgs. The other bundles containing silver rods was not claimed by any passenger. Thus the police party secured in all about 30 kgs. Of silver and five accused persons. But no proceedings were started and even the Station Diary was kept blank under instructions from S. H: O. Muhammad Saleem. On return of the S. H. O. At 8.30 p. m. An F. I. R. Was lodged by A. S.-I. Talib Shah showing recovery of silver from . Two accused persons, Aziz and Akbar, found coming on foot two miles from Umerkot. Thus no Mushirnama was prepared at the spot, no entry was made in the Station Diary at the relevant time, false F. I. R. Was recorded .And out of 30 kgs. Of silver only 5 kgs. And 214 grams were brought on record and the rest was misappropriated. Out of 5 accused persons only 2 were shown to have been arrested and 3 were released and the jeep secured along with the accused persons was also returned to them.
5. Inspector Solangi of C. I. A. Conveyed this information to S. P., Azhar Ali Farooqui of Tharparkar District. Who issued orders for immediate suspension of S. H. O. Muhammad Saleem and A. S.-I.
6. Talib Shah. He deputed A. S. P. Abdul Aziz Bullo of Nara Valley to hold preliminary inquiry. They were both suspended on 22nd February, 1980 and 27th February, 1980, respectively and were directed to report at the Police Headquarters. The A. S. P. Submitted the report supporting the allegations of Inspector Solangi. A charge-sheet was then issued alongwith statement of allegations against both the officers and forwarded to the Line Officer, Mirpurkhas for service on the accused on 5th March; 1980. Meanwhile, the false F. I. R. Recorded by A. S.-I. Talib Shah was cancelled. The charge- sheet was served on. Talib Shah while S. H. O. Saleem refused to take it. A. S: I. Talib Shah without submitt--ing any reply left the Police Lines without permission and.- absconded to his native place at Hazara District. Saleem got himself treated in Services Hospital Hyderabad as out-patient for Sciaticapain. Both the officers avoided the inquiry with the result that it had to be proceeded with ex parse by the Inquiry Officer. Meanwhile, A. S.-I. Talib Shah sent a photostat copy of a medical certificate from Hospital Hari Pur. Hazara recommending leave for one month and treatment for hyperten--sion. Inspector Muhammad Hassan Solangi of C.
1. A. Concluded the departmental inquiry and submitted his findings to S. P. Tharparkar. S. P. On perusal of the evidence recorded found that all the charges regarding misconduct, criminal misappropriation and corruption had been proved beyond any shadow of doubt against both the accused. They were, therefore, dismissed from service with effect from 30th April, 1980. Both the officers preferred appeals to the Deputy Inspeetor---General of Police, Hyderabad, but the same were dismissed by order dated 12th October, 1980. The officers then preferred revision applica--tions to the Inspector-General of Police but these two were rejected by order dated 9th December, 1982. These service appeals were then preferred before the Tribunal.
7. It has first been argued by the learned counsel on behalf -of the appellants that both the appellants had been sent up by the Anti---Corruption Police before the Special Judge for trial as the allegations disclosed commission of criminal offences by them. The Special Judge had disposed of the case under section 249-A, Cr. P. C. For want of sufficient evidence. That under rule 16.7, of the new Rules for departmental proceedings for Members of the Police Force issued by the Home Department under notification dated 11th August, 1979, a Police Officer who- had been tried and acquitted by a Court could not be punished departmentally on the same charge.
8. This Police Rules, however, contains a number of exceptions and it is, therefore, reproduced here in extenso :-- "(1) No Police Officer shall be punished departmentally on the same charge in respect of which he has been tried and acquittal by a Court or on a different charge based upon the evidence cited in the case relating to that charge whether actually led or not, unless-
(a) the criminal charge has failed on technical grounds ; or
(b) in the opinion of the Court or of the authority, the prosecu--tion witnesses have been won over ; or
(e) the Court has held that an offence was actually committed and that suspicion rests upon the Police Officer concerned ; or
(d) the evidence cited in that case discloses facts unconnected with the charge before the Court which justify departmental proceeding on a different charge.; or .
(e) additional evidence admissible under rule 16.21 (I) in departmental proceeding is available.
9. Thus if the case fails due to the prosecution witnesses having been won over, or if the suspicion rests on the accused, though, the offence is nod proved, or the acquittal is on technical grounds, the officers concerned can be dealt with departmentally.
10. PLD 1968 Lah. 786 it was observed in the case of Shafquat Mehmood Lodhi v. Pakistan that the purpose of initiating disciplinary proceedings against a public servant is to maintain purity of public service and not punish an erring civil servant for a crime. Departmental action can follow or precede the result of a criminal case. Principle of autrefois acquit or res judicata has, therefore, no application to such case. For instance, in the present case even the delay in making station Diary entry or recording of the F. I. R. Under instructions of the S. H. O. Would be sufficient to prove the misconduct on the part of both the officers, although, this misconduct does not constitute a criminal offence for which the accused could be tried before the Special Judge. The question before superior police authorities whether to retain or remove an officer would depend on the desirability of keeping such an officer in service from the point of view of purity of administration.
11. They are supposed to know the officers personally and if they exercise the administrative powers justly, fairly and reasonably, the administrative tribunals would be reluctant to interfere with their discretion on any technical grounds.
12. It has next been argued that ex parte inquiry should not have been held against these officers as they were reported to be ill. However, it is crystal clear from the conduct of these officers that they were all the time trying to evade the departmental proceedings. They left the police lines against the Rules and without permission. Knowing that they had been charge-sheeted, they refused to take part in the inquiry. It was only after they came to know about the order of dismissal that they came back and produced medical certificates. The Inquiry Officer was, therefore, justified in concluding the inquiry during their absence.
13. Lastly, it has been argued that under rule 16.19 a show-cause notice Ought to have been issued to the accused officers informing them of the action proposed to be taken and the grounds of action and reasonable opportunity of showing cause against the proposed action should have been allowed. The accused, however, could not be served during the inquiry or afterwards and they had absconded. Under the circumstances the department did their best to inform them of the action proposed' to be taken. They could not, however, postpone the proceedings indefinitely, If the notices on the appellants could not be served, they are themselves to be blamed for evading service.