1. ' MUSHTAK ALI KAZI (CHAIRMAN).--The appellant, High School Teacher, in Government Boys School No, 1, Korangi, Karachi, has preferred this service appeal to claim arrears of pay for the period of suspension from 6-7-1971 until his re-instatement on 5-9-1983, i,e, the period during which he under went a trial for Criminal Offence under sections 314 and 109, P.P.C. In the Court of Assistant Sessions Judge, Karachi--The case having ended in acquittal.
2. ' The appellant's friend and colleague, one Muzaffar had a daughter named Tayaba, studying in class 9. The appellant obliged his friend by undertaking to give tuition to Tayaba at her house. The appellant during the course of tuition developed illicit connections with the minor girl resulting in her pregnancy. The girl Tayaba one day left the house after informing her mother that she was going to the college to obtain seat number for the examination. A message was then received that Tayaba had met with an accident was in some hospital. Since she could not be found, her father lodged report with Korangi Police. Later on the parents of the girl came to know the real facts that the girl was neither missing nor had she met with any accident, but she had become pregnant, so she had been taken to a nurse named Razia Sultana for causing abortion. During the operation by the nurse, the condition of the girl became serious on account of excessive bleeding. The girl was taken by appellant Shafiq and the nurse Razia Sultana to Jinnah Hospital for further treatment. She was admitted under the name of Surayya wife of Shafiq. The police on getting this information registered the case and came to Jinnah Central Hospital, where dying declaration of the girl was recorded. The girl stated that she had illicit intimacy with appellant Shafiq resulting in her pregnancy. That on the day of the incident appellant Shafiq took her to the clinic, run by mother of nurse Razia Sultana for the purpose of forced abortion. The mother of the said nurse was not present and nurse Razia Sultana offered to accomplish the job herself to which appellant Shafiq and the girl consented. It appears that some anaesthetic was locally injected by the nurse before she started to perform the operation, when the condition of 'the girl became serious. The appellant Shafiq and nurse Razia Sultana removed the girl to Jinnah Civil Hospital. On the third day the girl expired. There is evidence to show that at the time of admission the girl informed Dr. Farhat that Shafiq was her husband but Shafiq contradicted her and told the Doctor that he was her brother.
3. The girl also informed Dr. Surayya Jabeen of the Jinnah Hospital, that Shafiq was responsible for her pregnancy.
4. ' The swa bs from the vagina of the girl were sent to Chemical Examiner who later disclosed in evidence that the swa bs contained alcoholic matter. The doctor was of opinion that alcoholic drug had been used for local anaesthesia. The course of death according to the post-mortem report was shock and haemorrhage.
5. ' Thus apart from dying declaration, there was sufficient corroborating evidence regarding association of the appellant with the girl, the taking of the girl in serious condition to the Jinnah Hospital by the nurse and the appellant, the admission of the girl in the hospital as wife of the appellant and the efforts of the appellant to conceal the real facts from parents of the girl.
6. ' The trial of Shafiq and nurse Razia Sultana had taken too long and the learned Assistant Sessions Judge Mr. All Nawaz Channa, instead of making efforts of compell attendance of witnesses brought their evidence before the lower Court on record and disposed of the case under section 265-K, Cr.P.C. He expressed that on the available evidence the case could not be proved beyond all reasonable doubt. This judgment was delivered on 15-11-1982.
7. ' After his acquittal, the appellant applied for re-instatement in service. The Director, School Education accordingly passed order, dated 5-9-1983 re-instating the appellant in service after the period of about 11 years during which he had remained under suspension as an under-trial accused.
8. ' The Director of Education, Schools forwarded the case of the appellant for arrears of salary during period of suspension to the Secretary to Government of Sind, Education Department for orders. The Secretary ordered that since the acquittal was due to the fact that the prosecution had not been able to summon the evidence against the accused who had been allowed the benefit of reasonable doubt, it was not an honourable acquittal and the case of the appellant fell within clause (b) of Rule 152 of the Sind Civil Service Rules, Volume 1. He could not, therefore, be allowed full salary over and above the suspension allowance. The appellant then preferred a departmental appeal to the Chief Secretary and thereafter this service appeal.
9. ' On perusal of the case it is apparent that the allegations against the appellant, a school teacher are of serious nature, touching his moral character. The learned Assistant Sessions Judge, it appears was keen to dispose of an old case which had been pending for too long since the P.Ws.
10. Could not be easily served. Besides the decision on a criminal charge the Education Department had not considered the feasibility of instituting departmental proceedings under the Efficiency and Descipline Rules against the appellant, looking to the nature of allegations against him, to determine if he was a fit and proper person to be retained as school teacher.
11. ' Regarding the question of payment of arrears of salary during the period of suspension, the rules are very clear. Rule 152 of the Sind Civil Service Rules Manual, Volume I, reads as under:-- "When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or when a Government servant who has been dismissed removed, or suspended is reinstated; ' the revising or appellate authority may grant him for the period of his absence from duty--
(a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded any allowance of which he was in receipt prior to his dismissal removal, or suspension; or
(b) if otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe.
12. ' In a case falling under clause (a), the period of absence from duty will be treated as period spent on duty. In a case falling under caluse (b), it will not be treated as period spent on duty unless the revising or the appellate authority so directs."
13. ' The judgment of the criminal case clearly shows that the accused were acquitted under section 265-K, Cr.P.C. Because the prosecution witnesses could not be served as they had become untraceable. The facts and circumstances of the case including dying declaration of the deceased, the evidence of the lady doctors of the Jinnah Civil Hospital the presence of the appellant at the hospital, the concealment of illness of the girl from her parents, all tend to implicate the appellant.
14. The accused were acquitted as according to the learned trial Judge, the case had not been proved beyond reasonable doubt.
15. The case thus clearly falls under clause (b) of Rule 152, since this was not an honourable acquittal.
16. The period of suspension cannot be treated as period spent on duty. The appellant has, therefore, rightly been refused the payment of full salary for this period over and above the 1/4th suspension allowance.
17. It may be observed that the position of a school teacher in relation to his pupil is a position of trust and confidence. A teacher is like a father and guide and confidence is reposed in him by the parents who entrust the child to his care. Once that connivance is shaken, the teacher loses that position and cannot command respect. It should be borne in mind that proof for the purpose of conviction in a criminal case is a matter entirely detached from the question whether any person is fit to be retained in a certain position of trust and responsibility. The former case is one of conviction for a criminal offence. The later case is one of suitability of a person to hold a particular job. The evidence that may be insufficient for conviction for a criminal offence may yet show that the person concerned has misbehaved and is unfit to be entrusted with the custody of a child. This is a question for the Education Department but we would suggest that the case of the appellant may be re-examined from this point of view by issue of a proper show-cause notice to him under the Efficiency and Discipline Rules. And it may be determined after due scrutiny whether he should be allowed to continue any longer as a school master.
18. Copy of the judgment in this appeal may also be forwarded to the Registrar, High Court of Sind for perusal of Honourable the Chief Justice. The matter pertains to Criminal Case No, 6655/76 in the Court of Vlth Senior Civil Judge/Assistant Sessions Judge, Karachi (Mr. Ali Nawaz Channa). The State v. Razia Sultana and Shafiq Ahmad son of Syed Fazal Karim, under section 314/109, P.P.C.
19. Disposed of under section 265-K, Cr.P.C. On 15-11-1982 for such action as may be deemed expedient.
20. ' In the result the service appeal is dismissed with no order as to costs.