1. MUNAWAR ALI KHAN (CHAIRMAN).--Two appeals, one filed by Mr. Iqbal Bajwa, Ex Sub-Inspector, Excise and Taxation (Appeal No. 28 of 1985) and another filed by Mr. Anisuddin Ex-Inspector, Excise and Taxation (Appeal No. 29 of 1985) are being disposed by this common judgment, as the dismissal orders of the appellants impugned in the said appeals were the result of the one and the same departmental inquiry.
2. To begin with, the said two appellants were placed under suspension by order dated 13-3-1978 passed by Director Excise and Taxation. Following that order the appellants were served with charge--sheet separately on 3-4-1978. Mr. Salahuddin Qureshi, the then Director Excise and Taxation (Administration), Karachi was appointed Enquiry Officer to hold inquiry into the charges levelled against the appellants. On receipt of the report submitted by the Enquiry Officer, the competent authority passed an order dismissing both the appellants from service vide Order No. SO(Admn.)E&T/12(309)/78/Estt., dated 27-7-1978. After availing the right of departmental appeal, the appellants came up in service appeals before the Service Tribunal. The said appeals were however summarily dismissed on the ground of limitation vide judgment of the Service Tribunal dated 30-1-1979. The appellants went in appeal against the judgment of the Service Tribunal before the Supreme Court where upon the case was remanded back to the Tribunal for decision on merits. Subsequent to the remand of the case by the Supreme Court. The Service Tribunal proceeded to hear the same and the appeals were allowed on a short ground that before passing of the dismissal order no show-cause notice was given to the appellants nor copies of the relevant documents including that of the report of the Enquiry Officer were supplied to them. Accordingly by judgment dated 15-5-1983, the case was remanded by the Tribunal with direction. The Authorised Officer may proceed from the stage from which the error could be corrected namely by supplying the copies of the findings of the Enquiry Officer to the appellants and calling upon them to submit their explanation in regard to the material brought against them and the action proposed to be recommended by the Authorized Officer". In compliance with the said direction not only show- cause notice was served on the appellants but also copies of necessary documents including the findings of the Enquiry Officer were supplied to them and they were also heard in person. The appellants submitted their reply to the show-cause notice but once again they were dismissed from service by separate orders dated 12-7-1984. It is these late orders which have been challenged in the present appeals.
3. We have heard the arguments of the parties at great length and with their help have also gone through the mass of material brought on record. As disclosed in the charge-sheet, both the appellants are accused of misconduct, misuse of power and corruption. Elaborating further, the charge-sheet shows that two brothers Shahid Malik and Aijaz Malik were called to the office of Excise Police without any justification am were illegally detained there. It also shows that attempt was made by the appellants to extort confession about smuggling of Charas from Shahid Malik.
4. Furthermore, as per charge-sheet, the appellants demanded illegal gratification from both brothers and ultimately received Rs.45,000 from Aijaz Malik. In support of the above charges, six witnesses , besides above two brothers have given evidence in the departmental enquiry launched against the appellants.
5. It is not disputed that both the appellants were associated with calling of the two brothers, one after the other, to the office of Excise Police. However their explanation is that they were called for interrogation and no coercion of any sort was applied to them nor were they put under unlawful detention. Surely the alleged interrogation was in connection with the truck which was intercepted by the Excise Police under suspicion of carrying narcotics. No doubt the said truck was loaded with tents and such other materials from the factory belonging to the above two brothers. However the truck was not searched at the place of interception. It is also admitted that after it was brought to the Excise Office nothing incriminating was recovered from search of the truck. Moreover neither of the two brothers was found in the truck both at the time of its interception and at the time of its search. Thus, the so-called interrogation of the said brothers with regard to the truck was absolutely uncalled for. The question would arise why they were at all called to the office of Excise Police? For answer to this question it would be necessary to first peruse the statements of the two brothers.
6. As per statement of Shahid Malik, two persons armed with pistols caught him by his hands, telling him; "Mr. Shahid Malik you are under arrest" According to him he recognized one of those persons t4 be appellant Iqbal Bajwa who had been his neighbour and the other, one he came to know to be appellant Anisuddin. His statement show that he was taken by them to the office of Excise Inspector, Malir, where he was pressurized by appellant Iqbal Bajwa to give confession that he was engaged in shabby business of smu ggling. He has further` stated that he was moved to another place by appellant Anisuddin and made to sit in a room where beside the two appellants, several other persons were present. It was there that one Afridi advised him to give statement preferably in Urdu. The said Afridi also expressed that he was going to fetch lady searchers for search of his house. After he left, the appellant Iqbal Bajwa took the witness to a dark room and made him sit on a chair. The said appellant warned him that the search of his house would not only bring bad name to him but would also spoil and tear his household articles causing a loss which might exceed Rs.20,000. He accordingly advised him to pay that amount for which he had secured the consent of his colleagues. The witness was also warned by appellant Iqbal Bajwa that his photographs would be taken alongwith the seized truck with Charas lying in front of it and the same if published in the newspapers would be disgraceful for him. He was also told that he would not be released until his brother (Aijaz Malik) was arrested. However according to the witness he was set free after he promised to pay Rs.5,000 by 12 o'clock next day and the balance of the amount, the day after. As regards his brother, his statement shows that as soon as he reached his house at 11-30 p.m. He was informed that Aijaz Malik was untraceable. However at 12-45 a.m. He received a phone call from his brother informing him that both the appellants had given him a lot of threats including the threat that a news item relating to his dealing in smuggling alongwith his photographs would appear in newspapers. He further told his brother that it was settled that he would pay them Rs.50,000 and that as they insisted on payment within one hour, he was approaching some of his friends for the required money. According to Shahid Malik, his brother returned home at 5-30 a.m. When he told him that he could raise only Rs.45,000 which he gave to appellant Bajwa in two bundles as desired by him.
7. Coming to the statement of Aijaz Malik, it is found that as soon as he accompanied by Ahsan, his business partner went to Excise office to fetch his brother Shahid Malik, they were surrounded by Excise Staff and were taken to a place where there was pitch darkness. They came to know that the appellants Iqbal Bajwa and Anisuddin were amongst those persons who had detained them. He has stated that they were asked in abusive language as to how long they had been doing Charas business. The witness heard the appellant Iqbal Bajwa telling one man who looked like a Goonda to bring 'Danda' so that if they did not come out with the confession in decent manner, some other method be used. Thereafter Ahsan was taken to another room. His statement further shows that Iqbal Bajwa pressurized him for confessing the guilt, saying that nothing was secret from him. He further told him that the matter was still in his hands and that money was not more valuable than one's honour. The witness was also warned that cameraman was at hand and if photo appeared in the newspapers, he would be defamed and no one from business community or from his locality would come near him. According to him appellant Bajwa enquired from him if he knew that he was his neighbour. When the witness replied in the negative to his question if he was doing that (Charas) business, the said appellant further asked him as to how much amount he could arrange.
8. His statement shows that after a lot of pressure, he ultimately agreed to pay Rs.50,000. He was also made to sign on a plain paper so that by the time he returned with promised money, his statement would be recorded on that signed paper. However the witness could raise only Rs.45,000 which he borrowed from various friends and returned with the said money after about one and half hours.
9. When he handed the money to appellant Bajwa in two bundles as desired by him he became very happy. Thereafter the seized truck was returned to him on getting the necessary receipt.
10. It clearly emerges from the statements of both brothers that they were called to the Excise Office, that they were unlawfully detained there, that they were treated shabily, that they were pressurized to make confession, that they were dealing in Charas smuggling, that they were required to pay illegal gratification and that ultimately Aijaz Malik paid Rs.45,000 as illegal gratification. Now the question is whether what the two brothers have said should be believed. As already pointed out even the appellants have not denied that Shahid Malik and Aijaz Malik were called to the Excise Office. Their explanation that they were called for interrogation with regard to the seized truck is however incompatible with their own admission that no incriminating material was recovered from search of the truck. Since the information received by them that the Charas was being smuggled in the said truck proved false, the appellants had no justification to call the said brothers for interrogation much less to detain them for any such purpose. Despite that if they had been dragged to the Excise Office, the only : presumption would be that they were called with dubious intention. Thus, their statements find initial support from the appellants themselves, as they have failed to give satisfactory explanation about calling the said brothers to the Excise Office.
11. Furthermore, the two brothers were subjected to lengthy cross-examination by appellants.
12. Excepting some insignificant contradictions, they did not succeed to bring out any thing from their mouth indicating that they have falsely implicated the appellants. They do not allege any enmity with the said brothers. On the contrary the appellant Iqbal Bajwa claims that he had been their close neighbour for quite some time. It is not the case of the appellants, that the above two brothers have engineered a false case against them for any specific reason. It is true that they were amongst the police party who had intercepted the truck of the said brothers. The party admittedly included almost Excise officials of all grades right from E.T.O. To Constables. We see no reason why others were spared and only the appellants were made the scapegoats. If the truck was intercepted and the two brothers were called for interrogation with regard to its seizure under official instructions, it was difficult to believe that the high officers of the appellants' Department including the Director-General would listen to the said brothers so much so that they would join hands with them in involving the appellants in the false case. Normally in such oases the high officers go to the extent of conniving at the misdeeds of their lower staff and even come to their rescue, no matter if they are guilty or not. There is no indication on the record that the high officers in this case have been bribed to support the two brothers against the appellants.
13. Apart from above, the two brothers are supported by other witnesses. According to Aijaz Malik the money that he paid to the appellants as illegal gratification was borrowed by him from it. Marfani, Qadir Bhai, Abdul Sattar and Idrees Khan. All those four persons have been examined in course of the enquiry. They have confirmed what Aijaz Malik has said. According to them Aijaz Malik approached them for money at odd hour of the night and they gave him whatever was available with them. They have also been cross---examined by the appellants to their hearts' content but nothing has been brought out from them to show that their evidence is not reliable. Not a single question has been put to them to indicate that they are in any way prejudiced against the appellants. Therefore, they had no reason to give false evidence against them. Of course they hail from business community like Shahid Malik and Aijaz Malik. It is incredible that for that reason alone they would involve the innocent persons in a false case. Accordingly we place full reliance on their evidence which goes long way to strengthen the case of Aijaz Malik as regards payment of illegal gratification to the appellants.
14. The next important witness is Muhammad Ahsan who had accompanied Aijaz Malik to the Excise Office and was detained with him by the appellants. He has also fully supported the story related by Aijaz Malik. He too was cross-examined by the appellants but they were unable to elicit any material admission from him to render his evidence, unbelievable. Therefore, we have no reason to doubt his statement.
15. It was argued on behalf of the appellants that the Director. Salahuddin Qureshi who conducted the enquiry was prejudiced against them as he was associated with the case at preliminary stage. It was also contended by them that although the incident occurred on the night between 5th and 6th March 1978, the two brothers were quiet for two days and lodged complaint for the first time on the 8th March, 1978 and such gap of time made in lodging the complaint casts a shadow of doubt on their whole case. They further submitted that if the incident took place in the manner related by the two brothers, they had obviously a lot of opportunity to take the matter to the Anti-Corruption Police or Martial Law Authorities. Their further argument was that the impugned order by which the appellants have been dismissed has taken into consideration only the charge of unlawful detention of the two brothers by the appellants. Accordingly in their opinion the punishment on that ground alone was excessive.
16. As regards the argument of prejudice on the part of Enquiry officer, suffice it to say that his mere association with the case from the initial stage is not enough to hold him as biased against the appellants. There is no material to warrant a finding that at any stage of the case the Enquiry Officer conducted himself in such a manner as to cause prejudice to the appellants. So far the delay in lodging the complaint is concerned, the two brothers have given explanation that they were busy in thinking over the matter during the intervening period of two days. We are inclined to feel that their explanation is quite plausible and can be accepted without any hesitation. After all they had to launch a litigation against police officers for which they had to think over hundred times before embarking on such a difficult course. Why the two brothers did not avail the opportunity and reported the matter either to Anti-Corruption Police or to Martial Law Authorities is also not difficult to explain. When they were set free, their truck loaded with their goods was still in the custody of Excise police. Moreover they were given to understood that either the Charas was recovered from the said truck or it could easily be shown to have been s recovered. They were also made to sign on plain papers before the were allowed to go. Therefore, their confession could easily be recorded on those papers. In these circumstances the two brothers could not be expected to take a risk of damaging their case by approaching either of the aforesaid authorities.
17. We are unable to agree that as per impugned order only charge of unlawful detention has been proved. On close perusal of the order it would be clear that the Director-General ha taken note of the statements of the witnesses and all others and ha found that all the facts clearly indicate the guilt of the officials. When he speaks of guilt of the appellants, he clearly refers to the charges, levelled against them. We agree with him that the reply given by they appellants is far from convincing. Even the defence produced by appellant Iqbal Bajwa is of no consequence.
18. Lastly legal objection has been raised on appellants' behalf. The contention of the learned counsel for appellant Anisuddin was that the procedure laid down in rule 6 of Sind Civil Servants (Efficiency and Discipline) Rules, 1973 was not complied with and as such the whole enquiry was vitiated.
19. Explaining further his point of view, he submitted that as required by the said rule the witnesses were not examined orally and their previously recorded statements were given to the appellants for cross-examination. In reply to above argument, the learned Assistant Advocate-General relied upon rule 7(c) of above rules, which clearly shows that Enquiry Officer possesses the power of receiving evidence on affidavits. Accordingly accepting of previously recorded statements of some witnesses on oath or receiving of affidavits filed by other witnesses was in consonance with the requirements of above rule and no illegality was thereby committed. However as required by sub- rule (2) of rule 6 it was mandatory to give a chance of cross-examination t the other party which was obviously given and the appellants have n grievance on this account. The case of Nazir Muhammad Ex-TPO (PLJ 1980 Tr. C (Services) 119) decided by Federal Service Tribunal was cited by the appellant Anisuddin's learned counsel in support of his arguments. It is obviously distinguishable inasmuch as that in the reported case the enquiry was not held in presence of the accused officials. That is however not the position in the instant case.
20. A. A./122/.Sr.S.