' Nazar Muhammud ex-A.S.-I. Filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Superintendent of Police, Multan, Deputy Inspector-General of Police 'Multan Cana. And Additional Inspector-General of Police, Lahore, as respondents.
2. By virtue of this appeal he was prayed that the impugned orders be set aside and the appeal be accepted with a further prayer that he may be re-instated in service with all back benefits.
3. Brief facts of the case are that the appellant while posted as A.S.-I. At P. S. Kup Multan City, a case F.I.R. No, 28 was registered against him on 15th January, 1981, on the allegations that on the night between 14th, 15th January, 1981, he trespassed into the house of Haji Nabi Bakhsh resident of Chowk Kumharan Multan, on the pretext of house search. He maltreated Nabi Bakhsh and removed two wrist watches, gold ear ring and Rs, 2,600 from his house. Thereafter, he took Nabi Bakhsh, his wife Salamat Bibi and daughter Najma Bibi to a photographer and got their new photographs taken. He threatened that if Rs, 40,000 was not paid to him as bribe, he would get the photographs published in newspaper. The matter was duly investigated by the S H.O. P. S. Kup Multan City and during the said investigation the appellant was served with a show-cause notice on the same allegations by respondent No, 1 on 7th February, 1981. The appellant replied to the said show-cause notice on 24th February, 1981, in which he repudiated the allegations and prayed that regular inquiry be held to prove the charges against him. He also requested that till the decision of the criminal case as required by P.R 16.2(2) and I.-G. Police Memo. No, 2250-51/E. IV dated 27th November, 1977, the decision of the show-cause notice be postponed. However, without holding a regular inquiry the respondent No, 1 removed the appellant from service by his order, dated 2nd March, 1981. The appellant filed an review appeal before respondent No, 2, who by his order, dated 4th October, 1981. Dismissed the same. He then filed a Revision Petition before respondent No,
3. He was personally heard on 25th October, 1982, but copy of order was not conveyed to him despite various applications. However copy of the order of respondent No, 3, dated 4th February, 1985, addressed to the D. I.-G. Police Multan, was conveyed to the appellant, in which the D.I.-G. Police was directed to deliver the copy of the order of respondent, No, 3 to the appellant. On an application of the appellant dated, 25th February, 1984, copy of the order of respondent No, 3, dated 7th December, 1982, was provided to the appellant by which penalty of dismissal was reduced to compulsory retirement. Hence this appeal.
4. I have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has admitted that the investigation of the case ended into challan of the appellant before the competent Court of jurisdiction and the appellant had been acquitted under section 249-A of the Cr. P.C. By the trial Court vide order, dated 14th March, 1984. It has been further submitted that the learned Magistrate who acquitted the appellant has made a very strong observation about the conduct of the Police while dealing with the cause of the appellant. It has been vehemently argued that in view of the judgment of the Court of competent jurisdiction the appellant was liable to be re-instated in service as the Department had failed to file appeal against his acquittal before the Appellate, Couit, therefore, the judgment had attained finality.
6. With regard to the earlier action taken by the competent authority against the appellant, it has been submitted that the case of the appellant was a case in which dispensation of inquiry was neither just nor lawful. According to the learned counsel the appellant from the very beginning was crying hoarse that he had been fallen victim of some misunderstanding and demanded regular inquiry time and again. Learned counsel for the appellant has further argued that the respondents Nos, 1 and 2 have referred to material available on record but this material was never shown to the appellant nor he was confronted with the same. He further argued that it is a settled principle of law that such material not brought on record during the inquiry could not be made basis of awarding punishment to a civil servant.
7. Learned counsel for the appellant has given counter-version of the case by submitting that the appellant was detailed by the S. H.
0. For Nakabandi at Chowk Hafiz Jamal alongwith Gul Jehan Foot Constable No, 1416 and Muhammad Zafar, Foot Constable No, 83Q. The appellant recorded his departure at 9.50 vide Daily Diary Report No, 12, dated 14th January, 1981, while the appellant was on Nakabandi at Chowk Hafiz Jamal. It has been submitted that the appellant came across one man and two woman whose names were Haji Nabi Bakhsh son of Mian Hassan Bakhsh, Mst. Najma daughter of Abdul Qadir, Mst.
Salamat Bibi wife of Haji Nabi Bakhsh and stated that they were going towards Delhi Gate. On questioning they stated that they were the residents of Ashraf Abad, P. S. Mumtazabad and had gone to see their son Allah Ditta resident of Mohallah Neel Girahan and were going back to their houses. Meanwhile Malik Haq Nawaz and Soofi Muhammad Nawaz came over there who identified them. For further identification Allah Ditta son of Haji Nabi Bakhsh was also summoned who identified them on which they were allowed to go. The case of the learned counsel for the appellant is that when appellant came back from Nakabandi duty to the Police Post, Daulat Gate at 5.10 a. m.
He recorded this incident in the Daily Report No, 16, dated 15th January, 1981. However, some enemies of the appellant namely Haji Muhammad Aslam, Councillor with whom he had family dispute regarding a house, concocted a false story and got a case registered vide F.I.R. No, 28, dated 15th January, 1981 at 9-40 a. m. At P. S. Mumtazabad. It has been argued that the complainant after realising his mistake, made an application to the D.I.-G. Multan, in which he stated that the name of the appellant was mentioned in F. I. R. Under a mistake, as the A. S. I. Who had trespassed into their house was a clean shaved person, and the appellant was wearing beard since long. According to the learned counsel for the appellant, he was entitled to a regular inquiry as there were two versions, one was investigation by the Police and other given by the appellant supported by affidavits of complainant and other dignatories of Mohallah.
8. On the other hand learned District Attorney has adopted the comments of the Department and has submitted that no affidavits were produced before the competent authority nor any written statement in response to the show-cause notice, According to the learned District Attorney all the affidavits were after-thought it has been argued that respondent No, 1 had acted in accordance with the Rules and Law as under Rule 6 (3) of the Police (E & D) Rules, 1975, the appellant could be punished without holding a regular inquiry. About the version of the appellant. It has been submitted that this was a concocted story and after-thought, therefore, the appellate authority was fully justified not place any reliance on the same. However, no reference has been made to the judgment of the Trial Court by which the appellant had been acquitted.
9. I have given my anxious thought to the arguments advanced by the parties and first of all would refer to the judgment of the trial Court, which being in the field, would be a bed rock of the case of the appellant. The allegations on which the appellant had been compulsorily retired from service by the Appellate Authority although he was dismissed by the competent authority, are the same, but the same before the learned Magistrate, were without any exception. He examined Haji Nabi Bakhsh as P.W. 1 who stated that about 3 years before when he alongwith his wife Mst. Salamat, his son Adil, and his daughter Mst. Najma was sleeping in his house at about 10 p. m. He opened the door of the house n response to knock made thereon and found two unknown persons, a woman one young lad standing outside. The complainant further stated that these persons requested him to accommodate them for the night to which he did not agree and in the meantime a Thanedar accompanied by two Constables arrived there, conducted the search of his house, forcibly took away the inmates to a shop at Hafiz Jamal Road where their photographs were obtained and in the meantime his son Allah Ditta also arrived and they came back to his house. He defended the F.I.R. In the cross-examination the witness stated that he did not know any of the accused persons.
He also stated that in fact he was having a weak eye-sight and was not able to identify anybody and that he had during the investigation also stated this fact before the Police, P. W. 2 Allah Ditta son of Nabi Bakhsh denied any knowledge of incident and was cross-examined by the P. S. I. But no incriminating material could be brought on record. From the remaining witnesses, Mst. Salamat Bibi and Mst. Najma Bibi who were wife and daughter, respectively of Haji Nabi Bakhsh P. W. Did not appear before the Magistrate. Rest were formal witnesses. According to the Magistrate the prosecution failed to prove any incriminating evidence against the appellant. Learned Magistrate further observed that it was on the record duly noticed by him that the application was addressed to the D. I.-G. Police Muth in which all the P. Ws. Had exonerated the appellant but no judicious notice was taken by the D. I.-G. Police. While discussing the worth of evidence it has been observed as under : "It appears that probably the investigating Agency just could not take a proper decision because the accused happened to be a Police Officer but in view of the sworn affidavits of the complainant himself and all other witnesses, proper decision should have been taken by the investigating Agency which if done would have not only saved the time of the Courts specially because this case remained hanging fire for a period of about 3 years but would have also saved the Police Officials from prolonged harassm ent and continuous agony."
' The action taken under section 6 (3) of the Police (E & D) Rules although is a legal action as this rule does empower the competent authority to proceed against a civil servant when he is satisfied that there was sufficient evidence on record to connect him with the same and no independent enquiry would be needed yet it depends on the facts of each case. In the present case, the appellant was of course charged with a heinous charge/act on the strength of F. I. R. So registered with the P. S. But the appellant from the very inception demanded a regular inquiry into the case that he was being victimised at the hands of the enemies. In these circumstances when the charges were so serious and heinous, it would have been prudent act on behalf of the competent authority in the larger interest of justice to probe the matter through a regular enquiry. Even it is accepted for the sake of argument that he was fully satisfied that the inquiry could not be of any help in this case the result of the investigation of the criminal case so registered against the appellant, would be binding on the competent authority as well as on the appellate authority. The judgment of the Magistrate, 1st Class dated 14th March, 1984, having become final, it is not possible for this Tribunal to ignore the same. It has been mentioned in the said judgment that the appellant had attached the affidavits of complainant and other P. Ws. By which he stood exonerated by the trial Court but the appellate authority failed to take note of the same. It has also been submitted by the learned Magistrate that the appellant was just sent for trial only for the reasons that he happened to be Police Official otherwise there was hardly any justification to do so and the matter should have been decided at their own doors and thus have wanted their own time as well as the time of the Court for about 3 years and have prolonged the agony of the appellant. With these strong observation from the competent Court of jurisdiction which are in field and as the respondents have failed to file any appeal against his acquittal, will show that the respondents have accepted the verdict of the Court in toto. In these circumstances this Tribunal has no alternative but to accept the judgment of the learned Magistrate, which has attained finality and held that the appellant has been proved not guilty of offence for which he was charged and for which he has been compulsorily retired.
10. The result is I accept the appeal, set aside the impugned order and direct that the appellant be re-instated in services. However, the period of his absence from duty to the date of re-instatement would be treated as leave of the kind due. There will be no order as to costs.