' S. ABDUL JABBAR KHAN (CHAIRMAN).-- Zafar lqbal, formerly Clerk, Deputy Commissioner Office, Rawalpindi, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Deputy Commissioner, Rawalpindi as well as Commissioner, Rawalpindi Division, Rawalpindi as respondents.
2. By virtue of this appeal he has prayed that the order, dated 9-11-1981, passed by the Deputy Commissioner, Rawalpindi, by which he was dismissed from service and also appellate order of the Commissioner, Rawalpindi, dated 1-12-1982/22-12-1982, be set aside and he be re-instated in service with all back benefits.
3. Brief facts of the ease are that the appellant while working as Muharrir in Criminal Branch of Deputy Commissioner's Office, Rawalpindi, received a complete judicial file "State v. Mirza Muhammad Akbar under section 382, P.P.C., from the Court of Assistant Commissioner, Gujar Khan in connection with the withdrawal of the case. This application for withdrawal, was initiated earlier twice which was rejected by the District Magistrate. However, the District Magistrate was pleased to accept the withdrawal as certain documents namely:-
(1) Original statement of two P.Ws. Recorded by the Assistant Commissioner, Gujar Khan.
(2) Order, dated 10-2-1980, passed by the District Magistrate rejecting previous withdrawal application; and
(3) Index of the file containing the entries, including document 1 and 2 above were missing from the file. This matter came to the notice of Superintendent, Deputy Commissioner's office. An enquiry was initiated which was entrusted to Mr. Nazir Ahmad Chaudhry, M.I.C., who submitted his final report on 7-9-1981, holding the appellant guilty of the charges with a further recommendation that the Clerk of the District Attorney, would also be responsible for this mishap. The matter went before the District Magistrate/Deputy Commissioner, Rawalpindi, who after going through the inquiry report and the facts of the case, came to the conclusion that the appellant was the solely responsible for this act of omission and commission and the clerk of the District Attorney had nothing to do with it and in a way the appellant tried to make scape-goat of him by planting the missing papers in the folding condition in his Tray, although his first search of a day earlier, did not bring any result. Aggrieved against the order of the Deputy Commissioner the appellant filed an appeal before the Commissioner who agreed with the order of the Deputy Commissioner in toto and confirmed his judgment by rejecting the appeal of the appellant. Hence this appeal.
4. We 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 entire record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that the inquiry report was not based on any direct oral evidence and the surmise was nothing but based on conjecture. He has further submitted that this file was handled by so many persons like Reader, Peon etc. And possibility of taking away the documents by any official, could not be ruled out. The learned counsel has vehemently argued that the place of recovery of the missing documents was a Tray of Muhammad Yusaf, clerk of District Attorney, therefore, it would be safe to presume that the missing documents were recovered from his custody and not from the custody of the appellant. With regard to the arguments of the learned Deputy Commissioner as well as learned Commissioner, that Muhammad Yusaf, could have destroyed the documents, if he was in any manner guilty of this lapse, learned counsel has submitted that this argument can also be used in favour of the appellant also. Much stress has been laid on the admission of Muhammad Yusaf P.W.1 co-accused in the inquiry that he admitted in examination-in-chief that he handled the file when the case was received in the office of the District Attorney.
6. On the other hand learned District Attorney has submitted that the case against the appellant has proved him guilty by the very fact that he was the custodian of the file and was fully aware of its contents about the missing documents on the basis of which the case of the accused under section 382, P.P.C. Had always been rejected by the District Magistrate. According to the learned District Attorney nobody else would know the detail of the said file than the appellant himself, . And it was only when he smelt that a criminal case will be registered against him, then he thought to replace the documents in a very clever manner to shift the burden from him to an innocent person who had nothing to do with the file earlier. Learned District Attorney has further submitted that the judgment of the learned Deputy Commissioner as well as learned Commissioner have dealt each and every aspect of the case and therefore, no exception can be taken to the two above- mentioned judgments.
7. We have given our anxious thought to the argument of the parties so advanced before us.
Undoubtedly the custodian of this file was nobody else than the appellant and it was within his full knowledge that the case had been rejected twice by the District Magistrate and unless and until the relevant documents which went against the interest of the accused are taken away from the file, the District Magistrate would repeat his earlier order. It is also an admitted fact that these papers were in the centre of the file and could only be removed intentionally, therefore, the learned Deputy Commissioner as well as learned Commissioner are fully justified to hold that the mischief has been done by the appellant and no one else.
8. We have also taken into consideration the arguments of the learned counsel for the appellant that in fact the place of recovery of these missing documents was a tray in the custody of Muhammad Yusaf, clerk of the District Attorney, but the very fact that the papers found were in folded condition, go a long way to prove that some body else who was in a hurry and wanted to make good the loss, placed the papers in the manner, these were placed and could not attach/insert the same at the proper place of the file because that would have taken a lot of time to do so. We are further strengthened in our view by the fact that the search made on the first day by the appellant in the presence of the clerk of the District Attorney was his abortive attempt and it was only when the clerk of the District Attorney, Muhammad Yusaf was busy in disbursing the pay that the appellant got a chance to commit the mischief. Although the learned Deputy Commissioner has not clearly mentioned the aspect of the case, which would be very much relevant in holding the appellant guilty, we point out the same after going through the record i,e, that the appellant being the Incharge of the criminal work of the District Magistrate, was only person who could help the accused to achieve their end and not the clerk of the District Attorney who was not in a position to handle the case before the District Magistrate. He is only connected with the office of the District Attorney who is nothing but a recommendatory officer and the final say was with the District Magistrate, whose dealing clerk was the appellant and none else.
9. After carefully assessing the arguments so given in support of their conclusions by the learned Deputy Commissioner as well as learned Commissioner, we are fully satisfied that the same are convincing and the said two officers have taken pains to sift the evidence in a judicious manner without any ambiguity.
10. In view of the above, we do not find any exception to interfere with the two concrete findings so arrived at by the two independent officers and proceed to dismiss the appeal as being without any merit. However, there will be no order as to costs.