1. ' MUNAWAR ALI KHAN (CHAIRMAN).--The appellant Abdul Haq Bhutto was one of the eight police personnel who were discharged from service by single order of the Commandant Sind Reserve Police, ADU MW-2, Naushero Feroze, dated 20th August, 1986. The review petition dated 27-9-1986 made by the appellant against the said order of his discharge was rejected by the I.-G.P., Sind by his order dated 13-4-1987. In the present appeal the appellant has challenged both the above orders.
2. ' The factual background of the impugned order is briefly stated as follows. While the appellant was posted as Ship-Commander S.R.P. No, 3 at Shikarpur, he accompanied by his subordinate staff including several constables set out on 15-2-1986 for night patrol duty. At about 8 p.m. He received a wireless message from Shikarpur that H.C. Lqbal Ahmad, In charge of Ghouspur Police Station had informed that a Truck No, QAC/7254 carrying armed people was going from Ghouspur to Shikarpur side and therefore the appellant was required to arrange nakabandi at Rahimabad diversion. On receipt of this message the appellant along with his subordinate staff rushed to Rahimabad diversion and arranged hurdles with a view to have the said truck stopped. However, the said truck which was coming at high speed did not stop despite the appellant having flashed light signal to the truck driver requiring him to stop. Consequently exchange of fire took place.
3. Meanwhile H.C. Lqbal Ahmad of Ghouspur Police Station who arrived there continued the chase of the truck.
4. ' The appellant on his part informed the District Control Room Shikarpur that truck had crossed the Rahimabad diversion, firing upon S.R.P. Personnel. In reply to that message, the appellant was told by the Control Room that such information had been conveyed to the In charge Police Station, Shikarpur as well as Ratodero. Thereafter the appellant too kept chase of the truck. As soon as the appellant's party reached near Khanpur, he heard gunshots. Again on reaching the Haji Khawasti Brohi Village, the appellant noticed that the truck had slowed down and was moving towards a ditch. Soon thereafter he found that two persons fully armed jumped out from the truck and ran away in the cover of darkness. When the appellant went near the truck he saw the truck driver lying seriously injured. The appellant arranged to have him immediately removed to Civil Hospital, Shikarpur. Thereafter he lodged F.I.R. No, 14/86 at Police Station Khanpur.
5. Meanwhile the driver Muhammad Anwar expired in the Hospital. On his death the truck drivers started gathering at Shikarpur/Jacobabad Road blocking the same, in order to pressurise the District Administration for registration of their case against the Police of Ghouspur. Ultimately F.I.R.
6. No, 15/1986 was registered at P.S. Khanpur. The police personnel including the appellant were challenged in Court of law under sections 302/148/149/506(2), P.P.C. The said case is still pending in the Court and the appellant is said to have been enlarged on bail by order of the High Court.
7. Immediately after the incident, the appellant and other Police personnel were placed under suspension by order dated 16-2-1986, but they were however reinstated on 29-5-1986. Again after about three months the appellant and other police personnel were discharged by the impugned order as stated above.
8. ' We heard the arguments of Mr. Abdul Fatah Malik, the learned counsel for the appellant as well as Mr. Imdad Hussain Kazi, Government counsel. We also went through the relevant record and perused the case law relied upon in course of the arguments.
9. ' It would be noticed that the impugned order was passed under rules 12.8 and 12.21 of Police Rules.
10. The question arises if these rules are applicable to the Police of Sind Province. In this connection we may refer to the Government Notification No, S.0.1X-Reg.(S&GAD)/2/E/2-75, dated 11th August, 1979 by which certain police rules were extended to the police personnel of subordinate ranks. The said Notification is to the following effect: "In exercise of the powers conferred by section 26 of the Sind Civil Servants Act, 1973, read with section 17 thereof and the Law (Continuance in Force) Order, 1977, the Governor of Sind is pleased to direct that the members of the subordinate police service up to and including the rank of Inspector shall with immediate effect stand excluded from the purview of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and be governed by the Police Rules."
11. The above Notification shows that the members of the subordinate police service including Police Inspectors were excluded from the purview of Sind Civil Servants (Efficiency and Discipline) Rules, 1973 and instead the police rules corresponding to the said rules were made applicable to them. In other words the Police Rules dealing with the cases involving disciplinary action and the procedure to be followed in such cases were substituted for the aforesaid 1973 Rules in respect of the subordinate police service. It would appear that such police rules are contained in Chapter XVI of the Police Rules and therefore only the said chapter was made applicable to the subordinate police of Sind Province. The said chapter begins from rule 16.1 and ends with rule 16.28. Thus, the rules 12.8 and 12.21 under which the impugned order was passed are not covered, by the said chapter.
12. ' Despite the above position we have come across a case which is reported as Inspector-General of Police, Punjab v. Mushtaq Ahmad Warraich and others PLD 1985 SC 159 in which the Honorable Supreme Court have exhaustively discussed the question of application of the Police Act, 1861 and Police Rules, 1934 to the subordinate police force in preference to Civil Servants Act and the rules framed thereunder. We would like to reproduce hereunder the significant portions of the judgment of the Supreme Court delivered in the above reported case. Their Lordships of the Supreme Court were pleased to observe as under: "Therefore, the net result would be that the Police Act and the rules saved as existing law under Article 268 must co-exist with the Civil Servants Act, 1974 and the rules saved under Article 241 until the appropriate Legislature expressly repeals, alters or amends the Police Act or the rules made thereunder.
13. ' It is also worthwhile to notice that the Provincial Assembly while enacting the Civil Servants Act, 1974, did not repeal the Police Act, 1861 or the rules framed thereunder. This is also an added reason for their coexistence. From this the intendment must be to keep the special law such as the Police Act and the rules alive."
14. ' At another place of the judgment it was held: "Article 8(3)(a) which occurs in the above chapter at the time of enactment of the Constitution excepted the Police force from the application of the fundamental rights. There was thus no limitation on the legislature to enact a law even though it was inconsistent with the fundamental rights. Necessarily, therefore, the Police Act and the rules, which is existing law, could not also be challenged for the infraction of any fundamental rights then in force. This was not so in the case of civil servants who were not excepted from the operation of the fundamental rights. The words "subject to the Constitution" in Article 240 of the 1973 Constitution placed a limitation on the power of the legislature not to legislate any provision in the Act which was inconsistent with any Constitutional provision. Equally the test for the rules to be valid was that they should not be inconsistent with any Constitutional provision. And if the Police force was to be governed by the law under Article 240 or the rules saved under'rticle 241 or those under section 23(2) of the Punjab. Civil Servants Act, 1974, then like other civil servants they would also enjoy the same benefit as regards the infraction of any fundamental right. Such could not be the consequence in the case of the police force as it was excepted from the application of fundamental rights by reason of Article 8(3)
(a) of the Constitution, which is now in abeyance. This obviously shows a different treatment meted out to the police force qua the Constitutional dispensations. For that matter, the Police Act and the rules have a special status."
15. ' In the same judgment, the Honourable Supreme Court further expressed as under:- "The Civil Servants Act is an Act of the general application and as earlier said it has no Constitutional status. Accordingly, it is as much a law as the Police Act of 1861 with the added distinction that it is of general application while the Police Act is of special application to the officers of the subordinate ranks of the police force. The same is true with the rules. In this view of the matter, as to which would prevail over the other in case of inconsistency is of no difficulty. It should not be forgotten that the Police Act and the rules framed thereunder are such as would Tie applicable to a disciplined force only while the Civil Servants Act cannot serve this purpose Though it cannot be denied that the police force is one of the services of the Province and the police officers of the subordinate ranks are members of the service who satisfy the definition of "civil servant" yet distinction nonetheless remains that they belong to a disciplined force to which the particular Act and the rules were applied from time immemorial. The added distinction is that when the Constitution was enacted in 1973, the police being a disciplined force was treated differently as they were excepted from the application of Article 8(1) and (2) now in abeyance with the result that the Police Act and the rules framed thereunder could not be challenged on the basis that they infringed the Constitutional rights nor was there any Constitutional limitation on the power of Parliament or the Provincial Assembly to legislate in contravention of clause (1) of Article 8."
16. After going through the above Supreme Court authority, we have no doubt in our mind that the police force even in the province of Sind is governed by the Police Act, 1861 and Police Rules, 1934 in respect of all the matters covered by the said Act and said Rules. The said Act and Rules are an existing law under Article 268 of 1973 Constitution and therefore until they are repealed or amended by the appropriate authority they would have precedence in application to the police force as they have special application in comparison to the Sind Civil Servants Act, 1973 and rules framed thereunder which have only general application. Since rules 12.8 and 12.21 are part and parcel of the Police Rules, they are applicable to the subordinate police of the Sind Province and hence in the instant case. It would appear from the impugned order that the appellant being S.I.P.
17. Was discharged under rule 12.8.
18. ' This brings us to the question whether the impugned order of the appellant's discharge from service was made in conformity with the requirements of the said rule. For the sake of convenience rule 12.8 is reproduced as under: "12.8 Inspectors, Sergeants, Sub-Inspectors and Assistant Sub-Inspectors who are directly appointed will be considered to be on probation for three years and are liable to be discharged at any time within the period of their probation if they fail to pass the prescribed examinations, including the riding test, or are guilty of grave misconduct or are deemed for sufficient reason, to be unsuitable for service. A probationary Inspector shall be discharged by the Inspector-General and all other Upper Subordinates by Range Deputy Inspector-General, Assistant Inspector-General, Government Railway Police, and Assistant Inspector-General, Provincial Additional Police (designated as Commandant, Provincial Additional Police). No appeal lies against an order of discharge.
(2) The pay admissible to a probationary Inspector, Sergeant, Sub-Inspector or Assistant Sub- Inspectors is shown in Appendix 12.64."
19. It is clear from above rule that S.I./A.S.I. Appointed by direct recruitment will be considered on probation for three years and during the probationary period, his services can be terminated for one or more of three reasons; namely (1) if he fails to pass the prescribed examination (2) if he is guilty of grave misconduct or (3) if he is deemed for sufficient reasons to be unsuitable for service in the Police. It is an admitted position that the appellant was appointed by initial recruitment as A.S.I. Reserve/Police on 26-11-1984 and due to non-availability of S.I.Ps with specialized training he was promoted as S.I.P. Prematurely on 12-10-1985 as a stop-gap arrangementHe continued in that capacity until he was discharged from service on 20th August, 1986. Thus, his total service both as and S.I.P. Was 1 year and 9 months. This shows that by the date of his discharge from service, the appellant had not completed requisite three years period of probation. We are unable to agree with the argument of the learned counsel for the appellant that with his promotion as S.I.P., the period of probation came to an end. As stated above his promotion as S.I.P. Was only a stop-gap arrangement. Even the order of the appellant's promotion is clear in this regard as it says: "above promotions are purely temporary and liable for reversion to the substantive rank at any time without assigning any reasons thereof." In fact at the time of his discharge, the appellant was only holding the post of A.S.I. On regular basis substantively. We have, therefore, no doubt that he was discharged while he was still a probationer.
20. ' The impugned order shows that the appellant was discharged on account of his involvement in the case of Police Station Khanpur (F.I.R. No, 15/86). Admittedly the said case has not yet been decided and is still pending in the Court. The question arises if his mere involvement in the criminal case still pending decision could be held as one of the reasons for his discharge as spelt out in the rule 12.8 hereinabove. At this stage it would be pertinent to refer to the "Note on the factual position of the case" of the Deputy Inspector-General of Police and T & S.R.P. Karachi. Part 2 of the said note is of interest and is reproduced as under: "What actually happened in the night Gt. 14/15-2-1986 cannot be stated with certainty because of the non-availability of reliable and impartial witnesses, while the versions put forth by the appellant and the complainant are contradictory. It is, however, a fact that F.I.R. No, 14/86, registered on the complaint of Ex-SIP Abdul Hague under sections 307, 353, P.P.C. And 13(d) Arms Ordinance was subsequently closed in final report as 'Cancelled', whereas the case registered on the complaint of Muhammad Ismail vide F.I.R. No, 15/86 under sections 302, 148, 149, 506(2), P.P.C. Was challaned to Court after necessary investigations and is presently pending trial in the Court of law."
21. ' It appears from the above note that the D.I.-G.(P) was clearly of the view that due to non- availability of reliable and impartial witnesses it cannot be said with certainty as to what happened on the night of 14/15-2-1986. Consequently, according to him the F.I.R. No, 14/86 which was registered on the complaint of S.I.P. Abdul Hague was cancelled and the case was subsequently closed and final report was also cancelled. However, the note further shows that second F.I.R. No, 15/86 was subsequently registered on complaint of one Muhammad Ismail and the case which is pending in the Court against the appellant and others relates to the latter F.I.R. Even otherwise mere involvement in the criminal case is no reason to hold the appellant as criminal. On the contrary the basic principle of Criminal Law is that every accused in the criminal case is presumed to be innocent until he is proved guilty by reliable and impartial evidence. We see no justification to treat the case of the appellant on different footing. So long the criminal case against the accused has not been decided, he cannot be deprived of the benefit of the presumption of innocence. If so, we cannot hold the pendency of the criminal case against him as a sufficient reason for declaring him to be unsuitable for police service. The instances are not wanting in which entirely innocent people are implicated in criminal cases and challaned in Courts. Therefore, it would be hard and unjust to deprive the appellant of his service of livelihood only because a criminal case is pending against him. We arc equally reluctant to hold the appellant guilty of grave misconduct which is one of the reasons given in the rule 12.8 for discharge of the probationer A.S.I./S.I., on account of his mere involvement in the criminal case pending against him.
22. ' As for legal aspect of the case, it was contended that the appeal was time-barred. This contention is based on the wording of rule 12.8 hereinabove which inter alia provides that in case of discharge of the probationer no appeal would lie against that order. Therefore, since the discharge order was passed on 20th August, 1986 the present appeal should have been filed latest by 18th September, 1986. As it has been filed on 17-5-1987 it is time-barred. On the other hand it was submitted on behalf of the appellant that the impugned order was challenged in review petition addressed to the Inspector-General of Police, Sind who decided the said petition by order dated 13-4-1987.
23. Accordingly it was submitted that the appeal was within time. It is true that appeal does not lie against the order .Passed under rule 12.8 hereinabove. However, in the instant case the appellant challenged his order of discharge in a review petition addressed to the 1.-G.P. The short order passed by the I.-G.P. On the appellant's review petition which has obviously been treated as appeal by the 1.-G.P. Reads as under: The request of the applicant has been considered and filed/rejected."
24. It is clear from the order that the appellant's grievance was given consideration by the 1.-G.P.
25. Which, in other words means that his review petition was entertained. Not only that but the petition was rejected obviously on merits. It would have been different position if either no response was made by the 1.-G.P. To the appellant's review petition or in the alternative he was informed in clear terms that his review petition was not warranted by rules. If the appellant was under miss- apprehension about the competence of his review petition/appeal, his such impression should have been removed by giving him appropriate reply. But instead of that, not only his review petition was entertained but was also rejected by the L-G.P. As if on merits. Therefore, we are of the opinion that limitation would start from the order of 1.-G.P. Which alone would be termed as final order within the meaning of section 4 of the Sind Service Tribunals Act, 1973. Accordingly the argument with regard to limitation has no force.
26. ' In view of the above discussion the appeal is allowed with no order as to costs.