This is an appeal preferred by Mahmoodul, Hassan against the judgment of Mr. M. Anwar Shariq, Senior Special Judge, Anti-Corruption, Punjab, Lahore, convicting him under section 163, P. P. C. And sentencing him to one year's rigorous imprisonment with a fine of Rs, 2,000 or in default of payment of fine to undergo further rigorous imprisonment for six months.
2. A criminal revision (Cr. R. 140 of 1981) has also been filed by the State for the amendment of the judgment to the extent that it directs confiscation of Rs, 5,000 in favour of the State, with the prayer that the said money should be delivered back to Muhammad Yaqoob, complainant, who is real owner.
3. Both the criminal appeal (Cr. A. 886 of 1980) and the criminal revision (Cr. R. 140 of 1981) shall be disposed of by this judgment.
4. The facts of the case and the evidence do not deserve to be discussed, as this appeal is being accepted on a legal ground.
5. It is the contention of the learned counsel for the appellant that Mr. M. Anwar Shariq, Senior Special Judge, Anti-Corruption, Punjab, who tried the case, was not competent to do so by virtue of section 3 (2) (b) of Pakistan Criminal Law Amendment Act, 1958, as he had at on stage been removed from the Provincial Government's. Service under the Removal from Service (Special Provisions) Regulation, 114 of 1972, for possessing derogatory behaviour, conduct and/or reputation, as laid down in para. 3 (1) (a) of the said Regulation. In this connection, it is submitted that the said Special Judge was compulsorily retired with effect from 13th March, 1972 under the said Martial Law Regulation No, 114 by order of the President of Pakistan, as conveyed by the Cabinet Secretariat, Establishment Division, Rawalpindi, by its letter No, 2/2/72-DA dated 13th March, 1972, to the Chief Secretary, Government of the Punjab, Lahore, and that he was reinstated thereafter by Provincial Government's Notification No, S 0 (S)-13-33/73 dated 12th August, 1973.
6. On behalf of the State, it is submitted that the disqualification referred to regarding the Special Judge, in section 3 (2) (b) of the Pakistan Criminal Law Amendment Act, 1958, is discretionary and not mandatory and, in any case, the disqualification arising by removal or dismissal would not apply if the incumbent is reinstated by Government, after his appeal, revision or representation is accepted, for such a reinstatement would have the effect of washing off all stigmas previously attaching to him. It is submitted that where the incumbent has been removed from service, but reinstated, the disqualification ceases to have effect. It is further urged that the Special Judge was neither removed nor dismissed, but prematurely retired and, therefore, the disqualification provided by the words "removed" or "dismissed" it not applicable to his case and since he was reinstated, his earlier stigma, if any, also stood wiped off and he could hold the office of Special Judge afterwards.
7. I have given my anxious consideration to this case. Section 3 (2) of the Pakistan Criminal Law Amendment Act XL of 1958, which deals with the qualification of Special Judges, reads as follows :- "(2) No person shall be appointed as Special Judge unless he-
(a) is, or is qualified to be a Judge of a High Court ; or
(b) is or has been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge or a District Magistrate and has not retired from Government service or at any time been removed or dismissed from such service : Provided that no Assistant Sessions Judge shall be appointed as Special Judge unless he has been an Assistant Sessions Judge for not less than three years : Provided further that no District Magistrate or Additional District Magistrate shall be appointed a Special Judge unless he has exercised either the powers of a Magistrate 1st Class for not less than 10 years or powers under section 30 of Criminal Procedure Code for not less than 3 years."
The words "and has not retired from Government service or at any time been removed or dismissed from such service" provide two disqualifications that prevent persons who are or have been holding the different offices referred to in clause (b) above from being appointed Special Judges. The first disqualification covers a person who has retired from Government service and the second, a person who has at any time been removed or dismissed from service.
8. Now let me take up the first category, i. e. Cases of persons who have retired. Clause (b) itself starts with the words "is or has been". Person who has been a Sessions Judge, or an Additional Sessions Judge, etc. Could be a person who his "retired. The first category, therefore, prevents the appointment, if the person has retired. The words "has retired" appear to indicate the normal form of retirement from service brought about under the relevant Federal or Provincial Civil Servants Act. c Notwithstanding provisions in the said Civil Servants Acts which enable the Government to re- employ in the public interest civil servants who have retired, the disqualification contained in clause (b) appears to make it clear that retired officials will not be appointed Special Judges.
However, there could be an out of the way case where a Sessions Judge, who has retired, can be appointed a Special Judge, under clause (a) of subsection (2) of section 3, but this is because his case would fall under clause (a) and not (b). This is well illustrated in State v. Muhammad Sakh Sono .
9. The second category covers cases of persons who have at any time been removed or dismissed from service. Since clause (b) starts with the words "is or has been", a person who has been one of the officials stated in this clause, could be a person who has been removed or dismissed. The second category, therefore, prevents the appointment, if the person has been removed or dismissed from service. But where removal or dismissal is followed by reinstatement, it could be urged that the earlier stigma stands wiped off and the person should be deemed as if he 'was1 never removed or dismissed. In such a case, the disqualification arising out of his removal or dismissal, would be rendered nugatory. But since it is the intention of the Government to appoint Special Judges out of a special class of persons who not only possess long experience, have held senior appointments and are serving officers, but who also have an unblemished career by never having been removed or dismissed from service, that the words ."has at any time" been prefixed to the words "been removed or dismissed from such service". The words, therefore, "at any time" refer to the factum of removal or dismissal as an event occurring at a point of time, irrespective of its effect. Had the words "at any time" not been there, the expression could have been stretched to refer to the removal or dismissal, as indicative of the officer's legal right to serve, or otherwise. The words "at any time", therefore, clearly denote that though the proposed officer may have been reinstated, after his removal or dismissal, he would still continue to suffer the disqualification to hold the office of Special Judge.
10. The next question that remains to be determined is whether the Special Judge's earlier premature retirement can be treated as removal from service. The word "removed" in clause (b) of subsection (2) of section 3 of the Pakistan Criminal Law Amendment Act, 1958, has been used in a general sense to cover all types of cases of severance of service, effected at the instance of the Government, where there is a cause, which has been disclosed, or which has been kept sub rosa and not outwardly disclosed, purely because of the law or rules applicable in that behalf, or by way of public policy, or as a favour to the public servant, so that it may not affect his prospects of securing employment elsewhere. Removal should not be equated with retrenchment, where severance of service is aimed because a department or cadre is being wound up or a number of Posts are being abolished, or where severance is effected of a person on probation, during the period of his probation, or of a person holding a temporary appointment, on the expiry of his period of appointment, or of a person engaged under a contract, in accordance with the termination clause in his contract. Now in the instant case it is necessary to determine for what reason the Special Judge in instance was prematurely retired. As disclosed in the Cabinet Secretariat, Establishment Division's Letter No, 2/2/72-D A dated 13th March, 1972, addressed to the Chief Secretary, Punjab, the present Special Judge was prematurely retired by the President of Pakistan under Martial Law Regulation No,
114. Para. 3 of the said Chief Martial Law Administrator's Regulation No, 114 reads as follows : - "3. (1) Where in the opinion of the competent authority, a person in Government service or a person in Corporation service is -
(a) corrupt or has a reputation of being corrupt, or has assumed a style of living beyond his known sources of income, or
(b) guilty of misconduct, or
(c) inefficient or has for any reason ceased to be efficient, or
(d) engaged or is reasonably suspected of being engaged in subversive activities the competent authority may, notwithstanding anything contained in the terms and conditions of service of such person, by order in the official Gazette, dismiss or remove such person from service, or reduce him in rank, or direct that he shall prematurely retire from service.
(2) The dismissal or removal from service, or reduction in rank or premature retirement of a person under subparagraph (1) shall not absolve such person from liability to any punishment to which he may be liable for an offence under any law committed by him while in service.
(3) Notwithstanding anything contained in any law or in any decision of a Court nothing in sub- paragraph (1) shall be construed as requiring the competent authority, before making an order under that clause in respect of any person, to give such person an opportunity of showing cause against such order."
It is, therefore, apparent from the above that the earlier premature retirement of Mr. Muhammad Anwar Shariq for a cause and, therefore, his premature retirement is covered by the word "removed" as appearing in clause (b) of subsection (2) of section 3 of the Pakistan Criminal Law Amendment Act, 1958. Cases of persons who are compulsorily retired by way of major penalty under the relevant Civil Servants (Efficiency and Discipline) Rules would also be covered by the word "removed" as appearing in clause (b) of subsection (2) of section 3 of Act XL of 1958, as the same is basically premature retirement by way of punishment.
11. The upshot of the above discussion is that Mr. Muhammad Anwar Shariq, Special, Judge, Punjab, having previously been prematurely retired for a cause under para. 3 of the Removal from Service (Special Provisions) Regulation, 114 of 1972, the said premature retirement amounted to removal from service effected at the instance of the Government, as 'contemplated in section 3 (2) (b) and despite the fact that he was reinstated later, the very event of his having been removed earlier disentitled him to be appointed as a Special Judge thereafter. The said Special Judge was, therefore, incompetent to hold the office and he had, therefore, no jurisdiction to try the appellant's case.
12. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Mabmoodul Hassan, appellant, is set aside. The F appellant is on bail. His bail bond shall stand discharged. The tine, if any recovered from the appellant, shall be refunded to him.
13. The criminal revision (Cr. R. 140 of 1981) is accepted, the currency notes aggregating Rupees Five Thousand (Rs, 5,000) passed as bribe by Muhammad Yaqoob P. W. 6 should be delivered back to the said witness. The direction of the Special Judge to the extent that it directs this money to be confiscated in favour of the State is set aside. 1982 P Cr. L J 937