MUHAMMAD IRSHAD KHAN (MEMBER).--The appellant was suspended from service with effect from 23-6-1982 as Registration Clerk in consequence of his arrest in a criminal case bearing F.I.R.
Ho. 58, dated 6-6-1982 of P.S. Mandan, District Bannu. Subsequently, he was involved in another criminal case vide F.I.R. No. 520, dated 4-8-1982 of P.S. Mardan. In the first. Mentioned case, he was acquitted of the charge by the Magistrate, First Class, Bannu, vide his judgment, dated 10-5-1983. In the latter case also he was acquitted by the Additional Sessions Judge, Mardan, vide his judgment, dated 16-5-1984. Thereupon, on 3-9-1984, it was ordered by respondent No. 1 that the appellant shall be reinstated in service but the suspension period will be treated as leave of kind due. Feeling aggrieved with the portion of order treating the suspension period as leave of kind due, he preferred a departmental appeal to respondent No. 3 who rejected the same as conveyed to the appellant vide department's letter, dated 19-11-1984. He then preferred the present appeal praying for quashment of the impugned order and a direction that the suspension period be treated as on duty mainly on the ground that having been acquitted by the competent Courts of the charges levelled against him, he was entitled to be treated on duty during the suspension period.
2. We have heard the appellant and the learned counsel for the respondents and perused the relevant record. The stand of the respondents pressed at the bar by their learned counsel is that the appellant was not acquitted honourably, therefore, his period of suspension was not treated as spent on duty. Our careful perusal of the judgments passed in respective criminal cases, however, reveals that in the first mentioned case, the acquittal of the appellant, on the face of it, is honourable, for, it was concluded by the trial Magistrate that "I have come to the conclusion that the charge against the accused is groundless and the accused are entitled to avail of the provisions of section 249-A, Cr. P.C." In the latter case the accused was tried alongwith five other co-accused and it is mentioned in the concluding part of the judgment that "the prosecution has totally failed to prove its case beyond reasonable doubt, I, therefore, giving benefit of the same to the accused acquit all the accused of the charges levelled against them".
3. A reading of the judgment as a whole, however, made it quite clear to us that the appellant was acquitted because neither he was apprehended on the spot nor there was any direct evidence against him to prove the allegation. It leads us to the conclusion that, in that case also the appellant was acquitted honourably. The stand of the respondent-department, therefore, is erroneous, misconceived and unsustainable. Resultantly the appeal is accepted, the impugned order is set aside and it is directed that the appellant shall be allowed the pay for the suspension period as provided in sub-clause (a) of F.R.
54. There shall be no order as to costs. The security deposited by the appellant should be refunded.
4.Parties to be informed accordingly.
A.E.