1. ' MUNAWAR ALI KHAN (CHAIRMAN).--The appellant, Muhammad Uris was S.H.O. Police Station Naushera Feroz, when on 3-9-1986 F.I.R. No,177/86, under sections 302, 307, 148, 149 and 422, P.P.C.
2. Was registered at Phull Outpost of the said police station. Amongst others, Abdul Latif Mari and Muhammad Suleman Mari figured as accused persons in the F.I.R. Hereinafter they would be referred as the said two accused. The appellant allegedly demanded illegal gratification of Rs,1,80,000 in equal shares, from the said two accused for vacating their liability in the case.
3. Meanwhile he avoided to arrest them from 3-9-1986 to 21-9-1986, even though both the accused were in constant touch with him. The said two accused leased out 100 acres of their agricultural land to raise the required amount and paid the same to the appellant. Subsequently the investigation of the case was entrusted to the C.I.A. Nawabshah, as a result of which not only accused Abdul Latif was put under arrest but also all the accused named in the F.1.R. Including the said two accused were challenged in the Court. As such the said two accused approached the appellant for return of their money but he refused. The said two accused then complained to Mr. Dil Murad Jamali, M.N.A., who brought the matter to the notice of the then Prime Minister. Consequently the D.I.-G.P. Sukkur directed Mr. Manzur Ahmad Mughal, D.S.P. Naushera Feroz to hold preliminary enquiry and submit his report.
4. ' Following the report of the said D.S.P., charge-sheet together with statement of allegations were served on the appellant and regular enquiry was instituted against him. Mr. Maula Bux Ansari, D.S.P., Nawabshah was nominated as Enquiry Officer for holding the said enquiry. As the appellant did not participate in the enquiry proceedings, the Enquiry Officer was constrained to proceed ex parte against him. On completion of the enquiry he submitted his report dated 25-6-1987, recommending major penalty to be awarded to the appellant. Thereafter the appellant was served with final show-cause notice dated 26-6-1987 to which he submitted his reply. He was also given personal hearing on 16-7-1987 by the S.P. Nawabshah, who ultimately by his order dated 16-7-1987 awarded major penalty of removal from service to the appellant. The appellant's appeal against the said order of his removal was rejected by the D.I.-G.P. Sukkur by his order dated 17-1-1988. The appellant then preferred review/mercy petition to I.-G.P. On 21-1-1988 but as the same was not decided within 90 days' period he filed the present service appeal. The appellant's prayer is that the order passed by the S.P. Removing him from service and that passed by D.I.-G.P. Rejecting his appeal from the order of his removal be set aside and he be reinstated in service with full back benefits.
5. ' The arguments of the learned counsel for the parties were heard at great length and with their assistance we were also taken through the relevant record.
6. ' The charge of corruption which led to the removal of the appellant from service is contained in the statement of allegations which runs as follows: "While posted as S.H.O. Naushehra Feroze, you S.I. Muhammad Uris Mahar the defaulter demanded and accepted illegal gratification of Rs,1,80,000 from Abdul Latif Mari and Muhammad Sulleman Mari in equal shares who were nominated as accused in case F.I.R. No, 177/86 under sections 307, 302, 148, 149, P.P.C. And 13-BAO of Naushehra Feroze Police Station, as motive or reward for letting off accused Abdul Latif Mari. You, the defaulter did not cause the arrest of the above named two accused from 3-9-1986 to 21-9-1986, though both the accused had remained constantly in touch with you and had leased out 100 acres agricultural land to one Khuda Bux Chandio to raise the money for payment to you. On transfer of the investigation of the case to C.I.A. Nawabshah, accused Abdul Latif Mari was arrested and subsequently all the accused were ordered to be sent up in the Court. The parties thereafter approached you (the defaulter) for return of the amount of illegal gratification and on your refusal, they had to report the matter to A.S.I. Dil Murad Khan Jamali, M.N.A. Who subsequently brought the facts to the notice of the Prime Minister of Pakistan.
7. ' You (the defaulter) have thereby rendered yourself liable for disciplinary action."
8. ' As disclosed in para. 10 of the memo. Of appeal, after service of the charge-sheet dated 19-4-1987 together with above statement of allegations, the appellant made efforts to have the enquiry held in some other District through some independent officer and it was after his failure in this regard that he submitted his reply under protest. He categorically denied the above allegations. It is an admitted position that after submitting his reply to the charge-sheet, the appellant did not participate in the enquiry proceedings which were therefore conducted and completed in his absence. In course of the arguments at the Bar, the learned counsel for the appellant came out with a number of reasons to justify the appellant's non-participation in the enquiry proceedings.
9. ' His first target was Mr. Manzoor Ahmad Mughal, the former D.S.P. Of Naushehra Fcroz who had made preliminary enquiry in this case. According to the learned counsel, as the said D.S.P. Bore grudge against the appellant, the latter protested against his appointment as Enquiry Officer but all his protests went unheeded. He further explained that even the record of the preliminary enquiry on which the charge-sheet served on the appellant was based, was not supplied to him and his request for the same was turned down. We have perused both the charge-sheet and the statement of allegations served on the appellant. We have not come across any indication in either of the said documents showing that they were based on the material produced or collected during the preliminary enquiry. The appellant could insist on supply or production of the record/documents which formed part of the preliminary enquiry only when the same was used or relied upon by the other side. Since it was neither used nor relied upon in the regular enquiry instituted against the appellant his request for supply of the same was unreasonable and was rightly refused. Even for the change of the Enquiry Officer who had held the preliminary enquiry, we were not convinced by the arguments of the learned counsel for the appellant. The allegations of grudge attributed to the Enquiry Officer were not substantiated by any authentic proof. Moreover, whatever transpired in the preliminary enquiry which was held obviously for satisfaction of the Police Officers themselves could not be legally used in the subsequent regular enquiry and therefore the appellant's defence in the latter enquiry could not in any manner be prejudiced by holding of the preliminary enquiry. Consequently the allegations of grudge made against the Enquiry Officer were uncalled for and no undue importance should be attached to them.
10. ' The next argument of the learned counsel for the appellant was that the appellant was not intimated about the appointment of Mr. Moula Bux Ansari, D.S.P. Nawabshah as Enquiry Officer nor the latter informed him about the date and venue of the enquiry and as such the whole enquiry was held in Appellant's absence. In this connection we may refer to the relevant portion of the written statement filed on behalf of the official respondents which reads as under:- "The appellant submitted his reply to the charge-sheet which was not found satisfactory and regular departmental proceedings were ordered to be held against him and Mr. Moula Bux Ansari, D.S.P./S.D.P.O. Saddar Nawabshah was appointed as Enquiry Officer vide this office No, CR/1222, dated 18-5-1987 for conducting regular departmental proceedings against the appellant who was also informed to appear before him but the appellant intentionally/deliberately avoided to appear and face the proceedings. The appellant however appeared before the Enquiry Officer at N'Feroze but, made an entry No, 2 at 0815 hours dated 7-6-1987 in his own handwriting, that he would not participate in the departmental proceedings (Photostat copy of this DD entry is attached)."
11. ' The written statement clearly shows that the appellant was duly informed to appear before the Enquiry Officer but he intentionally avoided to face the proceedings. In support of this assertion reliance has been placed on the entries in the daily diary of the P.S. Naushehra Feroze dated 7-6- 1987. It was not disputed by the appellant that the said diary was in his handwriting. He also admitted his presence at N'Feroz on the aforesaid date. The entry in the daily diary is to the following effect; "as per orders of D.S.P./SDPO, Saddar Nawabshah I have come to remain present. Not to participate in the enquiry of Abdul Latif Nari as I have already submitted an application and telegram to worthy S.P. As well as SDPO/Enquiry Officer to postpone my enquiry as I have no confidence in worthy S.P. As well as Enquiry Officer till the orders of D.I.-G., Police, Sukkur received for the transfer of the enquiry."
12. ' The above entry proves beyond doubt that the appellant had come to N'Feroz under the orders of D.S.P./S.D.P.O., Nawabshah who was entrusted with the holding of the enquiry against him and was available there on 7-6-1987. In view of such clear admission on part of the appellant it does not lie in his mouth to say that he was not intimated about the date and venue of the enquiry. This is further, confirmed from the enquiry report which shows: firstly that prior to commencement of the enquiry, the appellant approached the Enquiry Officer and verbally requested him for supply of the documents of the preliminary enquiry and secondly that on 7-6-1987 on which the enquiry was actually started, the appellant left in the office of Head Muharrir, application addressed to the Enquiry Officer requesting therein for postponement of the enquiry as he had no confidence in him.
13. Thus, it was established from both the entries in the daily diary and the enquiry report that not only appellant knew about appointment of Mr. Moula Bux Ansari, D.S.P. As Enquiry Officer but also he had the requisite notice of the date and venue of the enquiry. Despite this, if the appellant chose to abstain from the enquiry proceedings, his such decision was conscious and deliberate.
14. ' It was next contended by the learned counsel for the appellant that the influential elements of the district had turned against the appellant who had therefore genuine apprehension that he would not get justice if the enquiry was held in the same district. He further submitted that for this reason he also moved the concerned authorities for transfer of the enquiry to some other district. It would appear that on the one hand the appellant attributed grudge to the D.S.P. Who had conducted preliminary enquiry, and on the other hand he expressed lack of confidence in the Enquiry Officer (Mr. Moula Bux Ansari, D.S.P.) appointed for conducting regular enquiry and so also in the S.P.
15. Nawabshah who had appointed the said Enquiry Officer. We have already disposed the appellant's grievance against Mr. Mansur Ahmad, D.S.P. Who had conducted the preliminary enquiry. As for the remaining two officers, the learned counsel for the appellant was unable to show what motive they had for their hostility to the appellant. All that he stated in course of his arguments was that a lot of pressure was brought on the appellant not to take any action against the said two accused but somehow he managed to withstand all such pressure and did not oblige those who recommended their case. This argument, prima facie stands negative by the material available on record.
16. Admittedly the appellant did not arrest the said two accused so long the case remained under investigation within his jurisdiction even though they were in constant touch with him. It is also in evidence of A.S.I. Faizali of Police Out post Phalli where the criminal case was registered that he was given instructions by the appellant, not to arrest the said two accused. The record further shows that the said two accused were put under arrest soon after the investigation of the cases, was withdrawn from the Police Station in charge of the appellant and was entrusted to the C.IA. Police.
17. Thus, the appellant himself was favorably disposed towards the said two accused for obvious reasons. The story of pressurizing of the appellant being inconsistent with the position emerging from record seems to have been cooked up and does not inspire confidence. Moreover, it was not clear from the arguments of the learned counsel for the appellant as to who had exerted pressure on the appellant. Surely the aforesaid Police Officers could not be accused of bringing such undue pressure on the appellant nor such plea has been raised by the latter. Accordingly we have no doubt in our mind that none of the aforesaid police officers was biased against the appellant. We are inclined to feel that as the appellant's hands were not clean his conscience was biting him that he would not be spared if the enquiry was held in the same district where he had allegedly indulged in corruption. It appears to us that he wanted to thwart the enquiry by his delaying tactics.
18. ' Even if the appellant had moved the D.I.-G.P. For transfer of the enquiry to some other district, such move by itself did not confer on him the right to unilaterally boycott the enquiry proceedings, pending the decision on his transfer application. In case of the refusal of the Enquiry Officer to postpone the proceedings, he should have participated in the enquiry even under protest. He was not supposed to have taken decision at his own level for staying away from the enquiry proceedings. Obviously such decisions on his part involved grave risk and he had to face the consequences resulting therefrom. After careful consideration of all the circumstances of the case, as have been established from the record, we cannot but hold that the appellant's non- participation in the enquiry proceedings was entirely unjustified.
19. ' Having arrived at the above conclusion, the next question to be decided by us would be if the corruption charge contained in the statement of the allegations has been proved. In this connection we have perused the statements of the witnesses recorded in course of the enquiry and the enquiry report. The said two accused were manifestly the star witnesses in the enquiry.
20. They have thrown their full weight in support of the allegations. They have stated in unambiguous language that they had paid Rs,90,000 each to the appellant. According to accused Abdul Latif, he paid the amount in presence of Abdul Qudus. He too was examined in the enquiry and has fully supported the said accused. Although as per statement of accused Muhammad Suleman no one was present when he made the payment to the appellant, both accused Abdul Latif Mari and witness Abdul Qudus have stated in their evidence that on their enquiry, the appellant himself disclosed to them that the other accused Suleman had already paid his share of the money. As regards the appellant's refusal to return the money, apart from the evidence of the said two accused, witness Muhammad Ishaque who was examined in the enquiry has supported the case of the Department on this point. As already stated the statement of A.S.I. Faizali which too was recorded in course of the enquiry has disclosed that the appellant who was his S.H.O. Had given him instructions not to arrest the said two accused. Of course due to appellant's absence, from the enquiry proceedings all the above witnesses examined in the enquiry could not be cross- examined. For this omission the appellant was himself responsible and as such he has to thank himself. We see no reason to disbelieve the above witnesses. Obviously they had no motive to falsely implicate the appellant. On the contrary the appellant was sympathetic to the said two accused so much so that he refrained from arresting them so long the investigation of their case was in his charge. For their sake he also suffered humiliation of withdrawal of the investigation of the case from his police station. Therefore we cannot believe that such witnesses who were under the appellant's heavy obligation would turn so ungrateful that they would go to the extent of making a false charge of corruption against him. Keeping in view the appellant's earlier favorable attitude towards the said two accused, the truth of the latter's statements becomes too apparent.
21. It was but natural that when the appellant became helpless following the transfer of the criminal case to the C.I.A. Police and could not fulfill his promise of relieving the said two accused of the liability in the said case for which he had received illegal gratification from them, they said two accused would seek return of the money paid by them to the appellant. Accordingly we hold that the charge made against the appellant has been fully established. We are in agreement with the conclusions arrived at by the Enquiry Officer.
22. ' The upshot of the above discussion is that the appellant is guilty of the charge made against him.
23. His appeal is therefore dismissed with no order as to costs.