1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the two upper subordinates of the Police Force to examine, inter alia, whether it was incumbent upon the competent authority to necessarily wait for the result of the judicial trial, or in any case to adopt the more elaborate procedure of inquiry, for coming to a positive conclusion with regard to their innocence or guilt.
2. ' In the early hours of the 27th of June, 1980 (3-50 a. m.) under the orders of S. P., Lahore Mehr Muhammad Nawaz, D. S. P., Old Anarkali, along with Major Masood-ul-Hassan and Naib-Subedar Inayat of the Martial Law Headquarters raided the residential room of S. H.
3. 0., Mozang on the upper-storey of the police station holding. They found a lady Mst. Aisha sitting on the bed on which Inspector Anis-ur-Rehman was lying and she was pressing his feet. On interrogation, she informed that she had been picked up at 10-40 a. m. On 26-6-1980 from Rewaz Garden area and taken in the police jeep to various places and had been kept at the police station.
4. She was threatened and abused by Anisur Rahman, Inspector and Muhammad Ashraf, Assistant Sub-Inspector, the appellants. On her statement a case (F. I. R. No, 376) under sections 342, 354, 376 and 511, P. P. C. Was registered at the same police station. The criminal case proceeded to trial and statement of Mst. Aisha was recorded more than once under sections 161, Cr. P. C. And 164, Cr. P. C.
5. ' A show-cause notice was issued to A. S.-I. Muhammad Ashraf and Inspector Anisur Rahman. The show-cause notice that was issued to Inspector Anisur Rahman accused him of having committed acts of malversation and misconduct with Mst. Aisha. He was required to submit his written defence within seven days of the receipt of notice as to why he should not be awarded any one of the major penalties given in rule 4(b) of the Punjab Police (E & D) Rules, 1975 for misconduct on his part under rule 6(3) (a) and (b) of the said rules. It was also made clear that in case his reply was not received within the specified period, it shall be presumed that he had no explanation to offer and ex pane action will be taken against him. This notice was issued by the Deputy Inspector- General of Police and is-dated 30-6-1980 and was served on the appellant same day.
6. ' The show-cause notice to Ashraf A. S.-I. Issued by the Superintendent of Police, Lahore, is dated 1- 7-1980, and contained the accusation that he threatened and abused Mst. Aisha and got her escorted to the residential portion occupied by Anisur Rehman and that his actions amounted to misconduct which had brought a bad name to the police department.
7. ' Inspector Anis-ur-Rehman claims to have filed his reply to the show-cause notice on the 7th of July, 1980 with Reader to Reserve Sub-Inspector of Police Lines on 5-7-1980. Its receipt is, however, entered on 9-7-1980.
8. ' It did not reach the competent authority in time and on the 9th of July, 1980 a dismissal order was passed against Anis-ur-Rehman.
9. ' Muhammad Ashraf submitted his reply to the S. P. Which was considered and a dismissal order was passed against him after reverting him to his substantive rank of Head Constable.
10. ' Both filed appeals, one before the Inspector-General of Police and the other before the D. I.-G.
11. These are said to be still pending.
12. ' The version of Anisur Rehman appellant appears in the memo. Of his appeal to Inspector-General of Police in the following words - "That on the night of 26-6-1980 at about 11 p. m. The appellant while on general patrolling in a jeep, he was stopped near the Rewaz Garden by a woman (later identified herself to be the one Aisha alias Ashi) and told the appellant that two boys standing beside her were molesting and she was being teased and disgraced by these boys. The appellant along with other police officials apprehended the said two boys and despatched them to the Police Station Mozang in the company of police officials in order to deal with them in accordance with law. The appellant could not straightaway go to the police station as he had just received a message that somebody had trespassed the house of Mr. Muhammad Aslam, Deputy Secretary to the Government of Punjab, Local Government Department, Lahore and has committed theft. The appellant, therefore, rushed to Sandhe where the occurrence had taken place. After taking necessary steps and preliminary investigation of that case the appellant rushed to the Police Station Mozang at about 2 O'clock in the night along with the said woman as well as other police officer and did not think it proper to send the woman to the police station in the company of subordinate so that nothing untoward could happen with the lady. The appellant having just arrived at the police station received a telephonic message from Zonal Martial Law H. Q. Assembly Chamber, Lahore from where Major Masoodul Hassan talked with the appellant for the release of the two boys who Were being investigated. The appellant apprised the said army officer of the factual position of the case and also that the said boys and the woman seemed to be of dubious character. The said army officer directed the appellant not to proceed further in the matter as he was himself reaching there. It has now become obvious that the said army officer had simultaneously contacted the Superintendent of Police, City Lahore who found it a golden chance to victimize the appellant and thus the conspiracy was planned and implemented upon the appellant. The said army officer conducted a raid in the company of one Naib-Subedar Inayat Ali. D. S. P. Muhammad Nawaz, Old Anarkali, and Mr. Ansar Cheema, Sub-Inspector of Police Station Old Antalkali were also sent by the Superintendent of Police, City Lah;;re, to accompany the said army officer, The first version of the other appellant Muhammad Ashraf is contained in his reply to the show-cause notice reproduced as follows in to appeal to D. I.-G. - "The appellant, as already submitted in part I above, had already left the Police Station at 7-25 p. m. For night patrolling and checking along with A. S.-I. Zulficiar Ali.
13. The allegations against the appellant of abusing and threatening the lady are against facts and concocted through the intrigue of some interested persons. Submitted in the appellant's written reply to the show-cause notice, he along with A. S.-I. Zulfiqar Ali was present in Rajgarh where Inspector Mozang along with S. Is. Abdur Rashid and Saeed Ahmad and Constables Ahmed Din and Munir Ahmad arrived in the Police jeep at about 10-30 p. m. The Inspector of Police directed the appellant and A. S.-I. Zulfiqar Ali to accompany him saying that they were to conduct a raid. The appellant and A. S.-I. Zulfiqar All also took seats in the jeep. At about 11 p. m. The Police party noticed a girl and two young boys-later their names were known as Aishi, Zafar Iqbal and Abdur Rahman, on the Sanda road near Rivaz Gardens. The Inspector sent the two boys to the Police Station and made Mst. Aishi, sit in the jeep. Instantaneously the Inspector of Police got a message on wireless about a firing incident in the Tollinton Market requiring him to reach there. At the Tollinton Market the Inspector got a telephone message about forcible possession of the house of Mr. Muhammad A slam Lone, Deputy Secretary, and asking the former to reach there. At the house of Mr. Muhammad Aslam Lone, the Police party stayed from 12 night to 2 a. m. When after giving instructions to the A. S.-I. 1/C P. P. Sanda, the Inspector directed the appellant and A. S.-I. Zulfiqar Ali to continue their patrolling and himself with other occupants of the jeep left the place.
14. ' The appellant and A. S.-I. Zulfigar Ali returned to the Police Station at 6-5 a. m. In the morning of 27-6-1980. It was at the. Police Station that the appellant learnt that case F. I. R. Nos. 342/354/ 506/376/511, P. P. C. Had been registered against the Inspector of Police In charge, the two Constables and the appellant."
15. ' While their appeals were pending they approached the Punjab Service Tribunal. Their appeals were allowed. The orders of their dismissal were set aside. They were re-instated in service with full honours and with all the back benefits, effacing altogether the effect of the proceedings departmentally held against them.
16. ' The learned Additional Advocate-General has taken us through the record and urged that the Tribunal has taken an incorrect view of the law applicable and has applied wrong principles of law in appraising the material on record. The following instances have been highlighted :-
(1) The Tribunal wrongly assumed that the scope and object of the departmental inquiry was co- extensive with the criminal charge. For that reason the Tribunal held that acquittal on criminal charge long after the conclusion of departmental proceedings affected the latter.
(2) The competent Authorities committed an error of law or jurisdiction or abused the diseretion.
17. Aesting in them in deciding to adopt the summary procedure prescribed for departmental inquiries as against the more elaborate procedure.
(3) The opinion expressed in criminal judgment has been utilized in violation of provisions of sections 40 to 43 of Evidence Act.
(4) The past good record of service was not at all a relevant consideration for deciding whether a departmental enquiry should at all be held and if so of what sort. The length of service and the nature and the quality of service rendered can be a factor in determining the sentence or punishment to be awarded but not in deciding what sort of inquiry shall be held and whether the delinquent was guilty or not ?
(5) The laudatory reporting in the newspaper concurrently published when the police officer is posted there could be of no use and should not ever form the basis for judging quality of service rendered particularly of the police subordinates. It is not for the Press but for the superiors to adjudge the quality of service rendered by a functionary of the Government.
(6) The Tribunal could not lay down as a law that the competent authority in a case like this one should have awaited the judicial verdict.
18. ' The extent to which the Service Tribunal considered the criminal trial to be identical with the departmental proceedings will be clear from following discussions - "A similar situation arose in case of Painda Khan v. S. P. Harbour Division, Karachi and another 1981 PLC (C. S.) 263 (Civil Service Tribunal Sind May Issue). Mr. Mushtaq Ali Qazi, the Chairman, who wrote the leading judgment in this case has held that where the charge of misconduct relates entirely to a criminal case the Department concerned can wait for the judgment and in case of conviction give him show-cause notice or remove or dismiss him from service in a summary manner," and further that : "The competent authority in a case like the one before us, should have awaited the judicial verdict If this material which now has been looked at by us had been taken into consideration by the competent authority when he would have certainly arrived at the conclusion that a regular enquiry in this case was called for as envisaged under rule 6(4) of the Punjab Police E & D Rules.", ' and further that : "We hold that the competent authority in this case had acted erroneously by not waiting for the judgment of the Court of competent jurisdiction when the case was sub judice before it;" ' and finally by its conclusion that : "In view of the facts that the basis on which the appellant was dismissed from service has fallen to the ground by the detailed and well-reasoned judgment of the Court of competent jurisdiction, which still held field, and in the absence of a regular enquiry which was a must in this case, the impugned order cannot be sustained".
19. ' As regards the scope of two proceedings it has to be noted that the criminal trial of the appellants was on a case registered under sections 342/354/376/511, P. P. C. In more comprehensible terms it implied an attempt on the part of appellants to wrongfully confine a lady and attempt an assault or use criminal force with a view to outrage her modesty and to commit rape on her. These charges would fail if the lady concerned at the proper stage made a statement that she was a consenting party to all that happened. The charge against the appellants in the disciplinary inquiry was one of malversation and misconduct against one and of abusing her and escorting her to a residential portion of Anisur Rehman the co-appellant against the other. The word `malversation' has the meaning "corrupt behaviour in position of trust ; corrupt administration (of public money etc.). Its root is in Latin 'male' meaning badly and versari meaning "behave". "Corrupt" has the meaning "rotten, depraved, wicked, influenced by bribery" (Concise Oxford Dictionary). 'Misconduct' has been defined in clause (iii) of rule 2 of Punjab Police (Efficiency & Discipline) Rules, 1975 under which the appellants were proceeded against. It reads as follows - "2. Definitions.-In these Rules, unless the context otherwise requires
(ii) ... ...
(iii) 'misconduct' means conduct prejudicial to good order or discipline in the Police Force, or contrary to Government servants (Conduct) Rules or unbecoming of a Police Officer and a gentleman, any commission or omission which violates any of the provisions of law and rules regulating the function and duty of a Police Officer to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Police Officer ;
(iv) ... ... ...
(v) IG 19 These charges of malversation and misconduct have nothing to do with the criminal charge or with the consent or the willingiwss of the victim. It is a charge relatable to the functionary and the service discipline within which he works. The Tribunal, it appears, with respect, E was clearly in error in assuming that the two charges were co-extensive and inter-connected that the judicial trial was the proper alternative and once having been resorted to, the departmental inquiry should not have been held and the trial should have served as a .Substitute for departmental inquiry.
20. ' Now taking an objective view what we find on the plain admission of these police officers themselves is that a person (Mst. Ashi) whose report was to be recorded or from whom inquiry had to be made as a suspect, was unlike the two boys from whom same exercise had got to be done, was kept in the jeep and taken from place to place while these police officers went on duty and returned at about 3 a. m. Neither as a complainant nor as a suspect this was the treatment that, according to the service discipline, should have been meted out to her, particularly, a lady. Her removal to the residential room mistrusting all the subordinates present in the Police Station would itself reflect not so much on the precaution that the appellants took but on the lack of discipline that existed in the police station.
21. ' The Police Force on the Sub-continent has always received a distinct treatment in the matter of service discipline. For example, in the Govern-of India Act, 1935 by its section 343 a provision was made that rules could be framed in such a manner in respect of Police Force so as to deny them the protection afforded to other civil servants by sections 240 and 241 thereof. During the past half a century or so distinct and separate rules framed under a special statute have existed for enforcing and upholding discipline in the Police Force. The procedure prescribed is more expeditious and peremptory. Under the Police Act fresh and separate rules have been framed for maintaining efficiency and discipline in the Police Force and these are Punjab Police (Efficiency and Discipline) Rules, 1975 (hereinafter referred to as the Rules). Rule 6 provides for three kinds of proceedings i. e. (i) Summary Police Proceedings, (ii) General Police Proceedings, (iii) Special Police Proceedings. In the case of General Police Proceedings as was resorted to in this case two procedures are prescribed as will appear from sub-rule (3) of rule 6 which is reproduced hereunder :- "(3) If the authority decides to hold General Proceedings, the procedure shall be as under :-
(1) The authority shall determine whether in the light of facts of the case or in the interests of justice, a departmental inquiry, through an Inquiry Officer, is necessary, if it decides that it is not necessary, it shall.
(a) by order in writing inform the accused of the action proposed to be taken in regard to him and the grounds of the action ; and
(b) give him a reasonable opportunity of showing cause against that action : ' Provided that no such opportunity shall be given when the authority is satisfied that in the interest of security of Pakistan or any part thereof, it is not expedient to give such opportunity."
22. A discretion has, therefore, been conferred on the competent authority to decide whether a departmental inquiry through an Inquiry Officer is not necessary. The exercise of this discretion is not controlled by any pre-F requisite or guidelines. All the same as held by the Tribunal, it should appear ex facie from the record to have been resorted to fairly and justly and not oppressively and perversely. In the case in hand there was ample justification for dispensing with the inquiry through an Inquiry Officer. A superior officer of the appellants had conducted the raid in the company of another functionary of the Martial Law Head quarters. The things appearing before the superior officer itself established that there was laxity in observing the discipline and there was breach of it.
23. On the facts, therefore, where a superior who has even otherwise the authority to control and supervise the functioning of his subordinate conducted such a raid, G the results whereof were accepted by the appellants themselves, the resort to the show cause procedure without appointing any Inquiry Officer cannot on any principle be objected to as abuse of the discretion or unjustified in law.
24. ' The question of relevancy of judgment as was invoked in this case. Has been dealt with in sections 40 to 43 of the Evidence Act which have been subject-matter of consideration of this Court in two cases very recently. The one case is of Muhammad A zam v. Muhammad Iqbal and others (1) and the other is a decision in original Appeal No, 192 of 1980 the judgment of which has yet to be published in the law reports. We can
(1) PLD 1984 SC 95 only re-emphasize the statement of law on the subject in the following words in M. Monir's Commentary on the Evidence Act (Vol. I, p. 591) - "A judgment of acquittal in a criminal case only decides that the accused had not been proved guilty of the offence with which he had been charged and to this extent only and no more it is to be taken as correct and conclusive in a subsequent civil suit between the parties, the opinion and conclusions expressed in the judgment being otherwise irrelevant and inadmissible in such proceedings."
25. In the case before the Tribunal the judgment in the criminal case could be relevant only for ascertaining whether it was a judgment of conviction or acquittal and whether it was an honourable acquittal. The other opinions or findings, apart from these two, recorded or expressed in the judgment could not be utilised for unsettling the other proceedings. The extent to which the Tribunal utilised the judgment would be apparent not only from the passages reproduced from it but also the comments made on it. The para. Reproduced by the Tribunal from the judgment was as follows -- " ...The appellant produced an attested copy of judgment delivered by Mr. Muhammad Naeem Siddiqui Magistrate First Class, Lahore, in the abovementioned case which runs to 34 typed pages.
26. This judgment was announced on 7-5-1981 and we reproduce the concluding para. For reference :- ' The upshot of the above discussion is that prosecution has failed to prove its case against the accused persons beyond any reasonable doubt, hence the accused namely Anisur Rehman, Muhammad Ashraf and Ahmad Din are acquitted from this case. Placing reliance on 1978 P Cr. L J 724 wherein it was held as under : ' Section 164, First information and all eye-witnesses giving contradictory statements witnesses sometimes support ting prosecution case sometimes turning hostile and palpably giving false evidence by denying their 164, Cr. P. C. Statements. No corroborative piece of evidence or incriminating circumstances proving guilt of accused case against accused not proved. Accused acquitted."
27. ' The comments made would appear from the following remarks- "In the present case what we find is that there is before us a judgment of this case which runs into 34 typed pages which holds that the case against the appellant was a result of a sheer high handedness of Police against another Police Officer. In this judgment we also find that two independent witnesses :tamely Zafar Iqbal and Abdur Rehman did not appear before the Court. We also find that this Court had rejected the evidence of Major Masudul-Hasan and of the Naib- Subedar as of no substance. It is not our function to make any comments upon a judgment of a Court of competent jurisdiction which is liable to be appealed against before the High Court, but we have no hesitation to hold that the same attains finality if not set aside by the Court of appeal which in this case would be the Lahore High Court."
28. ' The extent to which the learned Tribunal was influenced by irrelevant considerations would appear from the following observations made by it in its judgment before even considering the merits of the appeal :- "Before entering - into the merits of the contentions raised by the learned counsel for the appellant and opposed by the learned D. A. It will be proper and fair to look into the past record of service of the appellant so as to adjudge what sort of civil servant he was when the competent authority issued him a show-cause notice. We have perused the service record with the assistance of learned D. A. Wherein he has not been able to point out that the appellant was in habit of such like lapses for which he has been punished or that he was a person of below average ability. On the other hand, we have verified from the various press reports relating to the performance of the appellant and find that he performed his duties in exemplary manner on many occasions and earned cash awards well as some land for his meritorious work. On 20-4-1980 the daily `Jisarat' has appreciated the performance of the appellant in superlative terms when he was able to recover within 45 minutes in a most dramatic manner a sum of Rs, 200 lacs, a revolver and a Suzuki van involved in a dacoity committed in the Bank in Lahore, by three armed persons. It was also said in the news that the Sub-Inspector Anis-ur-Rehman was promoted to the rank of Inspector for his bravery and it was prayed that if other officers of the Police would follow the example of the appellant, then Pakistan would be a very happy State. Similarly, on the service record, the appellant was efficient, honest and a hardworking Officer who was a great asset to the Police Department.
29. We are confident that this state of affairs would be known to the D. I.-G. Police who issued the appellant a show-cause notice accompanied by a statement of allegations based on the statement of Mst. Aishi and supplemented by the evidence of Major Masud-ul-Hasan and Naib- Suoedar of M. L. A. H. Qs. Coupled with the statement of two public persons namely Zafar Iqbal and Abdur Rehman. We have no dispute with the proposition that the D. I.-G. Was competent, to proceed against the appellant as contended by the learned D. A. And also to proceed in summary manner under rule 6(3) of the Punjab Police E & D Rules by way of General Police Proceedings, but the rule of prudence as laid down from time to time by superior Courts of this country, including the Service Tribunals of Punjab and Sind, would always be a guiding factor in such cases. An independent enquiry was a must in view of the circumstances of this case and the past record of the appellant when the competent authority chose to proceed without awaiting the result of the trial before a Court of competent jurisdiction."
30. It appears to us that the Tribunal has laid down certain requirements for the competent authority deciding to hold a departmental inquiry without the appointment of an Inquiry Officer. These cannot be sustained on the basis of law on the subject. The good record, the press reports and the quality of service rendered by an official is not the criteria for determining whether the inquiry shall be held after appointing an Inquiry Officer or by, issuing a show-cause notice straightaway. It is the nature of the allegation, the time, occasion, the place and the presence or absence o superiors, etc. Which may have a bearing on this question. No exhaustive or enumerative description of all the facts and circumstances can be provided. The competent authority is the best judge of it. Its discretion cannot be controlled by any such standards as have been indicated by the, Tribunal in its order, The scope and the law applicable to the criminal trial was different from that applicable to departmental inquiry. The charges in the two were L not identical nor substantially the same. The competent authority was not therefore, duty bound under any provision or principle of law to await and follow the judicial verdict in the case.
31. ' As regards the nature of the relief granted by the Tribunal, we find that the Tribunal alone had access to the judgment of the criminal Court, as the judgment was pronounced long after the close of the departmental inquiry, while the appeal was pending in the Tribunal. It also had access to the record in the light of which it made the following observations "If this material which now has been looked at by us had been taken into consideration by the competent authority then he would have certainly arrived at the conclusion that a regular inquiry in this case was called for as envisaged under rule 6(4) of the Punjab Police E & D Rules."
32. ' On this conclusion, it appears to us that a direction should have issued to the competent authority to get an inquiry held by appointing an Inquiry Officer rather than that the appellants should have been re-instated in service from the date of suspension in office with all back benefits as if they had not been removed from service at all.
33. ' We find that there is no legal defect in the proceedings adopted by the competent authority. The interference by the Tribunal in the order passed was not called for. The appeals are accepted and the judgment of the Tribunal is set aside restoring the orders of the competent authority passed which were the subject-matter of the two appeals.
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