JUDGMENT SLEEM AKHTAR, J.--The petitioner was employed as staff officer by the respondents with effect from 1-9-1964. On 1.1.1977 he was promoted as Vice president and performed his duties diligently honestly, and earned commondatory letters from the respondents. The petitioner was transferred to Inspection Division where he performed his duties to the satisfaction of his superiors.
He was orderd to proceed for the audit of treasury branches outside Karachi. Accordingly, he conducted audit of for baranches of the respondents at Sukur, Shikarpur, Jacobabad and Hyderebad. The petitioner submitted paid bill for Rs.2,100/- for his stay from 7.1.1979 to 5.2.1979 in Hotel Mehran, Sukur and receipt dated 7.3.1969 for his stay in the said hotel from 13.2.1979 to 6.3.1979.
In connection with the duty at Larkana branch, the petitioner stayed from 27.3.1979 to 16.4.1979 in Sambara Inn, Larkana which is managed by PLA Ltd. Karachi and paid Rs.2,999/-under bill No. 0549 which was submitted to the respondents for payment. Besides the bills for stay in the hotel, the petitioner was paid a sum of Rs.4, 927.50 according to his entitlement, under the Rules and Regulations.
2. On 20-12-1979 the petitioner was suspended by a memorandum issued by the Executive Vice- President of the respondents.
Thereafter the petitioner was served with the notice of imposition of penalty/charge sheet dated 27-1-1980 which was issued by the respondent's Executive Vice President. The petitioner was charged of submitting false fabricated and excessive bills for his alleged stay in the hotels, and was required to submit his reply. The petitioner made an application dated 5.2.1980 to the respondents requesting them to supply a photo copy of the alleged bill of Hotel Shalimar, Larkana which was supplied by the respondent's letter dated 26.3. 1980. The petitioner alleges that this bill was never submitted by him. He submitted his explanation dated 11.2.1980 denying all the charges levelled against him. Thereafter, the petitioner received memo dated 8-6-1980 from the Senior Vice-President of the respondents informing him that he was deputed to investigate the case against him and that he will hold inquiry in his chamber on 14.6.1980 ai " j.00 A.M. The petitioner was asked to attend the said inquiry. The petitioner attended the inquiry and continued to attend till its conclusion. The petitioner produced documentary evidence which included photo copy of the bill No.0549 Sambara Inn Larkana, Certificate dated 30-1-1980 issued by the Manager PIA Hotels LTD, Airport Larkana Certifying that the petitioner had stayed in Sambara Inn Hotel with his team from 27.3.1979 to 16.4.1979 and confirmed that the bill for Rs.2990/- was issued and paid. A certificate from Manager Hotel Mahran Sukur dated 6.2.1980 was produced certifying that on the basis of scrutiny of this records the petitioner had stayed in the hotel from 7.1.1979 to 5.2.1979 and from 13.2.1979 to 6.3.1979. It was further stated that previous statement issued on 29-10-1979 may be treated as cancelled as the records were not properly checked at that time. The petitioner also made oral statement and at the conclusion of inquiry submitted his final statement. The petitioner submitted an application on 6- 11-1980 to the president of the respondents requesting him to take into consideration the documentary evidence produced by him as it was part of the departmental proceedings before the Inquiry officer. It was stated that the Inquiry Officer by his Conduct has given an impression that he L not going to believe or rely on this documentary evidence. He also requested that the bills may be verified. On 20.11.1980 the petitioner was served with a letter signed by Senior Vice President Whereby the petitioner was retired from service in terms of Rule 37 (f) read with Rule 39 of National Bank Staff Service Rules 1980 with immediate effect besides recovery of Rs.3,917.50 allegedly drawn by the petitioner against his T.A. Bill.
3. By his application dated 23-11-1980 the petitioner requested that he may be supplied copy of the Inquiry Officer's report and finding to enable him to file an appeal but the same were not supplied.
However, the petitioner filed his appeal dated 6.12.1980. By letter dated 20-12-1980 Senior Vice President of the resopndent informed that the copy of the inquiry report could not be provided as it was confidential document of the bank. As no order was passed on appeal, the petitioner submitted a reminder dated 29.3.1981 followed by another reminder dated 31.3.1981. As the appeal remained undecided the petitioner filed this petition on 20-5-1981 challenging the order of the respondents.
4. The respondents filed their counter affidavit in which it has been stated that the petitioner has been suspended by the president of the respondent bank, and the order was conveyed to the petitioner vide memo dated 29-9-1979 issued by the Executive Vice President of the respondent.
The suspension was as a sequence to inquiry in the matter. Thereafter charge-sheet dated 27-1- 1981 was served on the petitioner, and it is denied that the petitioner requested for photo copy of the bill of Shalimar Hotel, Larkana. The petitioner was, however, supplied a copy of the bill of Shalimar Hotel Larkana original of which had been submitted by the petitioner. Mr. S. Irtiza Naqvi was appointed under the Staff Service Rule to investigate into the matter. The petitioner was afforded and he availed every opportunity of corss-examining the witnesses of the respondents and also submitted his own evidence. The petitioner did not object to the suspension order, the appointment or conduct of Inquiry Officer, It was denied that the Inquiry Officer had by his conduct given an impression that he would give no credence to the documentary evidence produced by the petitioner. No objection was raised to the conduct of the Inquiry Officer or to his impartiality. The order of retirement was passed by the Executive Board of the respondents which is the competent authority in the matter and it was conveyed by the Executive-Vice President. It was pleaded that there is on provision for providing copy of the Inquiry Officer's report and therefore, the same was not supplied to the petitioner. The petitioner also filed an appeal against the order of retirement which was dismissed on 12.4.1981 and was conveyed to the petitioner by letter dated 20-5-1981. It was stated that 1973 Rules were approved by the Central Government and 1980 Rules are merely revision by way of amendment, deletion or addition which was already approved and for such amendment, deletion or addition on approval is required under the be-laws, ln any event the punishment provided in the 1980 Rules are nothing new and are the same as in 1973 Rules. The Inquiry was conducted under the Revised Rules Published in 1980. Under the agreement the petitioner was bound by the Rules subject to any change thereafter duly made therein. It has been pleaded that the petitioner is estopped from challenging the notice or the charge-sheet, the appointment of Inquiry Officer and the order passed by the Authorities. The petitioner had paritcipated in the Inquiry and cross- examined fully all the witnesses produced against the petitioner. The Inquiry Officer was not biased.
Personal hearing was given to the petitioner who had participated in the inquiry and principles of natural justice have not been violated. The petitioner has not filed any rejoinder to the counter affidavit filed by the respondents.
5. Mr. Manzoor Ali Khan the learned counsel for the petitioner has contended that the inquiry procedings were conducted under the 1973 Rules, but the order was passed under 1980 Rules which were not applicable nor it was approved by the Government. The undisputed position is that when the petitioner was charge-sheeted and suspended from service 1973 Service Rules were applicable. 1980 Rules were promulgated on 26.3.1980 and therefore, the Inquiry Officer as stated by the respondents conducted the inquiry according to 1980 Rules.The stand taken by the respondents in the counter affidavit is that 1980 Rules were merely amendments, additions, and deletion in 1973 Rules, and therefore, prior approval of the Central Government was not necessary.
During argument Mr. Mansoorul Arfin has contended that in view of section 11 sub section 4 of Banks (Nationalisation) Act 1974, the restriction under the be-laws of the respondents to obtain prior approval of the Federal Government of Rules framed by the Board no longer exists. Section 11 (4) reads as follows:- (4)" In the exercise of their powers the Executive Board and the President of a bank incorporated by or under any special law shall not be subject to restrictions which do not apply to the Executive Board or the President of a bank registered under the Companies Act, 1913 (VII of 1913."
6. The learned counsel for the respondents contended that in view of this provivion the respondents were not required to obtain any prior approval of the Federal Government as the Banks who are registered under the Companies Act are not required to do so. The Bye-laws of other such banks have not been produced on the basis of wnich we can hold that there is on such restriction on other banks. This stand taken by the respondents is different from the one taken in the counter affidavit. Rules of 1980 have been produced by the respondents which are entitled as follows: "These Rules may be called the National Bank of Pakistan Service Rules 1980. It was to take effect from 1st January, 1980".
After perusing these rules we are unable to hold that they were only amendments, and alterations as stated by the respondents. They were framed by the Executive Board under Bye-law 18(a) (iii)
(iv) of National Bank of Pakistan Bye-laws read with section 11 (4) of the Banks (Nationalisation) Act 1974. In fact these Rules have superseded the Rule of 1973. The petitioner would be aggrieved by the application of Rules of 1980 if his vested right is infringed to the procedure for inquiry and punishment provided by it are prejudicial to the interest of the petitioner as compared to Rules of 1973.
7. A perusal of both the Rules will show that the procedure for inquiry and the punishment are materially the same. There is no material difference in these provisions which prejudicially affects any vested right or interest of the petitioner, The petitioner also did not take object to the applicability of Rules of 1980 at the time when the charge-sheet was served and inquiry was conducted. In our view as the new Rules do not in any manner prejudice the petitioner's vested right nor do they enforce any procedure to the dis-advantage of the petitioner and as no objection was raised by the petitioner at any stage before filing this petition, now merely on the basis of change of Rule, it cannot be held that the entire proceedings have vitiated.
The next contention of the learned counsel for the petitioner is that charge-sheet had not been issued by a competent authority. As stated earlier the charge-sheet was signed by the Executive Vice president. According to the petitioner which is not denied by the respondents, it should have been issued by the president or the Managing Director of the Bank. The respondents have contended that in fact the Executive Vice president had conveyed the order of suspensions and charge-sheet which was actually passed and issued by the president or the Managing Director who was Competent Authority. Both these documents i.e. Suspension order and the charge-sheet do not indicate that the Executive Vice President had conveyed the order passed by some other authority. However, this fact should not detain us as the petitioner did not raise this objection before the Inquiry Officer. The appointment of the Inquiry Officer and the proceding taken by him were not challenged on this ground at proper and appropriate stage earlier. Having submitted to the jurisdiction of the Inquiry Officer, the petitioner produced evidence and cross-examined the witnesses of the other side. Now it is too late in the day to challenge these proceedings after the order of retirement has been passed by the competent authority. The well recognised principle is that if there is a breach of rule or omission in the conduct of inquiry but it has not materially prejudiced the defence of the accused employee, then such irregularity and omission will not nulify the order passed against him.In this regard reference can be made to the following observation in Mir Mohammad Vs. N.W.F.P. Government. PLD 1981 S.C.176: "It seems to us that the rule enunciated by SA., de Smith, in the passage quoted above, is the correct rule to follow in cases of disciplinary inquiries; namely, that if an commission, defect or irregularity in the conduct of the inquiry has not caused material prejudice to the accused official in the matter of his defence, then such an irregularity, commission or defect would not, by itself, vitiate the action taken against him."
In the present case the additional fact which supports the above view is that the petitioner did not raise any objection till final order was passed. There is no dispute that the order of retirment which is a punishment under the Rules was passed by the Executive Board which was the competent authority to pass such order.
8. The learned counsel has referred to Pakistan through General Manager PWR Lahore VsA.V. Azhar PLD 1970 S.C. 415 and contended that right of party to a suit must be adjudicated on the basis of the law prevailing at the date of institution of the suit. The learned counsel also contended that under Article 4 of the Constitution the petitioner has a right to be delt with according to law. As discussed above mere change of rules which have not adversely affected the petitioner's rights and as no objection was taken at the proper time, the petitioner's contention is not tenable. The petitioner has not been able to establish how in the facts and circumstances of the case the judgments cited above are applicable to his case. Even if there was any irregularity in procedure with regard to issuing of the charge-sheet the same cannot be challenged now as discussed above.
The Learned counsel has referred to Syed Mir Mohammad Vs. NWFP through Chief Secretary PLD 1981 SC 176 where the following observation was made:- "It seems to us, therefore, that on a proper construction of rules 5 and 6 read together, it is a statutory requirement that if a formal inquiry is held, then the authorised officer should, after he has tenatively decided upon the action he proposes to recommend to the Authority, give an opportunity to the accused Officer to offer his explanation against the proposed action in the light of the findings of the Inquiry Officer or Inquiry Committee, before sending his recommendations to the Authority, This would, of course, necessitate that a copy of the enquiry report be furinshed to the accused Officer at this stage, and he should be apprised of the action proposed against him."
9. The learned counsel for the petitioner has heavily relied upon this observation for the plea that as no second show cause notice was served on the petitioner nor a copy of inquiry report was supplied to him, the order of retirement is bad in law. This observation was made while interpreting Rules 5 and 6 of the NWFP Govt. Servants (Efficiency & Discipline) Rules 1973. The rule which was applied to the petitioner as materially different from Rules 5 and 6 referred above. The dictum of the Hon''be Supreme Court is with reference to particular Rules and not a general principle governing all cases where Rules are different. Mr. Arfin has referred to Dawood Cotton Mills Vs. Mukhtar Shah & others PLD 1981 S.C. 225 where following observations were made:- "In Punjab Road Transport Corporation V. Punjab Labour Appellate Tribunal, Lahore and others (1), the Lahore High Court had interfered with the order of the Punjab Labour Appellate Tribunal as the report contained extraneous matters which were not relatable to the charges levelled against him in regard to which he had submitted his explanation and which greatly influenced the Enquiry Officer to recommend the dismissal of workman;and as the second show-cause notice, which formed part of the conditions of the workers of the Road Transport Corporation, was not given to the delinquent workman, the case was held to have been prejudiced as he had on opportunity to rebut the allegations. It was in these Circumstances that this Court, while dismissing the petition for special leave to appeal, held that the workman should have been furnished with the copy of the enquiry report and also the second show-cause notice as this was consistent with the rules of natural Justice. This observation must be understood in the context of the peculiar fact of that case and does not lay down the broad principle that they form part of the rules of natural justice or for that matter to be spelled out from the provision under consideration."
10. It can, therefore, be seen that the issuance of a second show cause notice cannot be termed as a necessary requirement of the observance of principles of natural justice and in a case where full opportunity has been afforded to a party to participate in proceedings, produce the witnesses and cross-examine the witnesses of the other side, it is not necessary that a copy of the Inquiry report unless specifically required by the rules, may be supplied to the accused party so that he may make a further representation to the competent authority to whom the inquiry report is submitted for passing final order. In the present case the Rules do not require issuance of a second show- cause notice or supplying a copy of the second show-cause notice or supplying a copy of the inquiry report. These alleged failure can not vitiate the proceedings.
The petitioner relied on NLR 1985 Service 37 in which it was held that if there was a violation of statutory Rules then such order will be set aside in exercise of writ jurisdiction and that as held in PLD 1970 Lah. 811 the breach of statutory rules amounts to violation of principles of natural justice. In the pressent case no such breach of rules has been alleged except Rules of 1980 were applied instead of 1973 Rules which were in-force when charge-sheet had been issued. No one has a vested right in a procedure but this does not mean that any procedure which is arbitrary or violative of the principles of natural justice cannot be challenged. As discussed above having paritcipated in the proceding without any objection the petitioner is not entitled to challenge the proceedings and procedure at this late stage on the ground of non application of Rules of 1973.
11. In the petition the petitioner has prayed that declaration may be granted that the departmental Proceedings including the inquiry are void ab-initio and the impugnd order dated 20-11-1980 is illegal, void and of on legal effect and the respondent be directed to treat the petitioner in service of the respondents from the date when he was suspended. The petitioner was due to retire in the normal course in the year 1982, but by way of punishment he was compulsorily retired in 1981. The petitioner filed an appeal against that order which was dismissed, and such order was conveyed to him on 20-5-1981 few days after the petition had been filed. On our query the learned counsel for the petitioner stated that he did not think it necessary to challenge the order of the Executive Board passed in appeal as the appellate order had merged in the original order. In fact and in law once an appellate order is passed the original order is merged with the appellate order. It was therefore, necessary that the order passed in appeal should have been challenged which could have been done by way of simple amendment in the petition, but the petitioner did not think it proper and even after a lapse of seven years no step has been taken to amend the petition. Even if the petition is allowed, and the declaration as sought by the petitioner is granted, the appellate order shall hold the field and therefore, the order passed by the Court will remain in-operative and infructuous. In view of the aforesaid facts and reasons we dismiss the petition with no order as to costs.
Appellate order is passed the original order is merged with the appellate order. It was therefore, necessary that the order passed in appeal should have been challenged which could have been done by way of simple amendment in the petition, but the petitioner did not think it proper and even after a lapse of seven years no step has been taken to amend the petition. Even if the petition is allowed, and the declaration as sought by the petitioner is granted, the appellate order shall hold the field and therefore, the order passed by the Court will remain in-operative and infructuous. In view of the aforesaid facts and reasons we dismiss the petition with no order as to costs.
K.L.R 1989 Labour and Service Cases [Lahore1 Present: Irshad Hasan Khan, J.
SVED IQBAL HAIDER Versus N.B.P ETC A.R. No.367 of 1989,/ decided on 24th January, 1989.
National Bank of Pakistan (Stuff) Service Rules\ 1980 - Rule.37-Petitioner an Officer Grade-I posted with the National Bank of Pakistan-He, while posted at Pattoke Branch committing certain irrcgularilies-Therefore he was proceeded with-The competent authority deciding to degrade him to a lower stage of pay in his grade by three sleps- He filing an appeal thereagainst on the ground that the punishment imposed on him was very severe and unjustified-The same rejected-The ground being that no new point was raised to merit reconsideration.
(Paras, 2,3 & 5)
Constitution of Pakistan, 1973 -Art. 1973-Petitioner contending that the entire disciplinary proceedings as conducted were wholly illegal and in flagrant disregard of Rule 35 of the Rules PASO-Further stating that the proceedings were violative of the principle of Natural Justice-Held that the pleas now raised by the petitioner were never raised by him in the memorandum of appeal-The petitioner having merely challenged therein the severity of the punishment and not the findings ol the Inquiry Officer-Further held that the question of quantum of punishment being a matter to be determined by the employer-The question whether the petitioner was given a fair opportunity of hearing during inquiry proceedings being essentially a disputed question of fact-The same could not be agitated in writ petition- Petition dismissed in limine.
(Para, 4)
For the Petitioner: Ch. Riyasat Ali, Advocate Date of hearing: 24th January, 1989.
IRSHAD HASSAN KHAN, J.- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Seeks a declaration that the memorandum dated 11.10.1988 issued by the Assistant Vice President (Admns.), National Bank of Pakistan, whereby he rejected the appeal of the petitioner and upheld the order of punishment contained in the memorandum No.ADMN:DISCIP: F
40. Dated I2.Fi.19,SS, where by the petitioner was degraded to a lower stage of pay in his grade by three steps as without lawful authority and of no legal effect.
2. Briefly, the facts of the case are that the petitioner was posted as officer Grade-I with the National Bank of Pakistan. He was served with a charge sheet dated 1.10.1987 by the Senior Executive Vice President of the Bank for committing certain irregularities by him during his posting at Pattoke Branch and was required to show cause as to why penalty/penalties, as prescribed under Rule 37 of the National Bank of Pakistan (Staff) Sen ice Rules, 1980, should not be imposed on him. The allegation against him inter alia was that during summation balancing of PLS Saving Accounts Ledger No.9 as on 30.6.1986, a fraud of Rs.15,000.00 committed by Mr. Faqir Muhammad, Officer Grade-Ill (under suspension) came to light. Being an Accountant of the branch he had direct and personal responsibility to report to his Controlling Office this misappropriation committed at the branch in which he failed. Instead he indirectly helped and assisted the accused officer Mr.Faqir Muhammad in concealing and adjusting fraud by allowing the accounting of transfer vouchers for Rs.15,000.00 with retrospective date viz 12.5.1986 in two PLS Accounts No.l569-A and 1463 of Mr. Amir Ali Bajwa and Ch. Bashir Ahmed Respectively. The petitioner was also accused of making additions/alterations in the PLS Saving Account No.1463 through deletions/cuttings and overwritings. He was required to submit his explanation within seven days of the receipt of the charge sheet. This period, therefore, expired on 8.10.1987. The petitioner failed to submit his explanation within time. In consequence, inquiry was ordered to be conducted against him vide memo No.ZOM.ENQ:/7 08 dated 7.11.1987 issued by the Assistant Vice President/Enquiry Officer. The petitioner was advised to appear before the inquiry officer on 23.11.1987 at National Bank of Pakistan, Pattoke, to defend himself against the charges conveyed to him and show cause notice dated 1.10.1987 already served upon him. The charges were repeated in the aforesaid letter and he was given another opportunity to sumbit his reply to the charge sheet before the inquiry proceedings were started. The petitioner alegedly submitted his reply on 18.11.1987, as per Annex 'B'. The competent authority of the National Bank of Pakistan, after taking into consideration all aspects of the case, decided to degrade the petitioner to a lower stage of pay in his grade by three steps. He was also reprimanded to be careful in the discharge of his duties vide memorandum, No. ADMN: DISCIP: F:40, dated 12.6.1988 issued by the Assistant Vice President (Admin). The petitioner filed an appeal against the punishment imposed on him merely on the ground that it was very sever and unjustified. The punishment was sought to be withdrawn on the following grounds:-
1. It was merely clerical mistake not a fraud; 2 Bank had to bear no loss;
3. The concerned Account holder was satisfied with the transaction in his account and he never complained about any irregularity; and
4. Lam now about 50 years of age and also completed 25 years in Bank service and I am thinking for retirement in near future but at once the degradation of 3 steps from my present scale as punishment has shocked me because there is reasonable loss which will have to bear by me at present and after retirement.
3. The competent authority rejected the appeal on the ground that no new point was raised to merit reconsideration vide memo dated 11.10.1988 by the Vice President (Admin) of the National Bank of Pakistan. Hence this writ petition.
4. Ch.Riayasat Ali, learned counsel for the petitioner vehemently contended that the entire disciplinary proceedings, after the service of charge sheet have been conducted in wholly illegal, unlawful manner and in flagrant disregard of Rule 35 of the National Bank of Pakistan (Staff)
Service Rules, 1980. This being so, it is contended that the impugned order of punishment and the entire proceedings which have been culminated in the impugned order are wholly vide, mala fide and without jurisdiction. The learned counsel also contended that the inquiry Officer conducted the inquiry in an uqlawful manner, inasmu ch, as, the petitioner was not allowed to participate in the inquiry, but he was compelled to answer the questions, which the inquiry officer had already framed. Learned counsel contended that the petitioner was not afforded an opportunity of hearing during the inquiry proceedings. He was not supplied with a copy of the inquiry report and the impugned order of punishment was passed behind his back without affording an opportunity of final hearing to the petitioner and, therefore, it was violative of the principles of natural justice and on that score, as well, it is liable to be set aside. In support of this contention, reliance is placed on unreported judgement of this Court in Manzoor Hussain v. National Bank of Pakistan (C.R.NO.439 of 1977, decided on 21.2.1982). In the precedent case, it was inter alia observed that the bank has a statutory obligation to act upon the procedure it has introduced in this behalf. It was further held that "it is established law that if charges levelled against persons which raise questions of fact and these are challenged by the person concerned it becomes the bounden duty of the authority levelling the charges to hold an inquiry into them after giving a fair opportunity to the person complained against to offer his defence, if he is so advised". In the precedent case, a finding was recorded that the petitioner in that case was not heard, nor was he given a opportunity to defend himself and, therefore, in the absence of such a hearing, he could not have been condemned.
5. Having given my anxious consideration to the submissions made by learned counsel for the petitioner and after perusing the material on the record, I am inclined to hold that there is no cavil with the proposition advanced by learned counsel for the petitioner that the National Bank of Pakistan was bound to act in accordance with the procedure it has laid down in the Services Rules regarding disciplinary action that may be taken against its employees. If in a given case, the employee is not afforded an opportunity to defend himself, the absence may be fatal depending upon the facts and circumstances of each case. In the istant case, however, the pleas now raised by learned counsel for the petitioner were never raised by him in the memorandum of appeal. The petitioner merely challenged the severity of the punishment and not the findings of the inquiry officer. T^e question of quantum of punishment is a matter to be determined by the employer and this Court, in the exercise of its consitutional jurisdiction cannot sit in appeal over the judgement delivered by a domestic Tribunal like the appellate authority of the National Bank of Pakistan. In any event, whether the petitioner was given a fair opportunity of hearing during inquiry proceedings, is essentially a disputed question of fact which cannot be allowed to be agitated in these proceedings In view of the above, the write petition fails and is hereby dismissed in limine.
K.L.R 1989 Labour and Service Cases | Lahore1 Present: Irsliad Hassn Khan, J.
PUNJAB EMPLOYEES SOCIAL SECURITY INSTITUTION Verst i.
THE STATE Writ Petition No.6744 of 1988 decided on 12th February, 1989. Constitution of Pakistan, 1973 -Art. 199-Grant of advance increments to the petitioners on the basis of their excellent performance-The same withdrawn by the Governing Body of the Punjab Employees Social Security Institution-Petitioners assailing the same-Held that the question of law and facts in the petition being identical with those in the petition since decided thereby quashing the impugned order-The impujgncd order further held declared as without lawful authority-Petition accepted.
(Para, 2)
For the Appellant: Sabibzada Anwar Hameed, Advocate.
For the Respondent: Iftikhar Ahmad Dar, Advocate Dale of hearing: 12th February, 1989.
IRSHAD HASAN KHAN, J.- This petition under Article 199 or the Constitution of Islamic Republic of Pakistan, 1973, calls in question the decision dated 8.11.1987 of the Governing Body of the Punjab Employees Social Security Institution (Head Office Lahore) and the order dated 14.12.1988 of the Commissioner, Punjab Employees Social Security Institution (Head Office Lahore), whereby the advance increments granted to the petitioners on the basis of their excellent performance were withdrawn and the amount drawn by (hem was ordered to be recovered.
2. The question of law and facts in this petition are identical with those in Writ Petition No.6232 of 1988 decided today. It also arises out of the impugned decision which has since been quashed in the said writ petition. Arguments in the present petition as well in the said writ petition were heard together and, therefore, for the reasons staled in the aforementioned writ petition, which may be read as part of this order, the impugned decision dated 8.11.1987 of the Governing Body of the Punjab Social Security Institution, in so far as it relates to the rescinding of the advance increments granted to the petitioner, is concerned and the order dated 14.12.1988 of respondent No.2 issued in pursuance of the aforesaid decision, are declared as without lawful authority and of no legal eflecl. The result is that the writ petition is accepted with costs.
K.L.R 1989 Labour and Service Cases [Lahore] Present: Irshad Hassan Khan, J.
MANZOOR AHMAD PATYVARI Versus THE ASSISTANT COMMISSIONER, NAROWAL Writ Petition No.6293 of 1988, decided on 24th January, 1989 Constitution of Pakistan, 1973 -Art.199-Petitioner-A patwari-Collector removing him from service-His appeal thereagainst failing- Even writ petition dismissed on the ground that efficaciou remedy was available before appropriate Service Tribunal- Petitioner challenging the order of his removal before the Service Tribunal- While the matter being subjudiced the Asst. Commissioncr/Collector issuing another order removing the petitioner from service-Petitioner assailing this second order thereby submitting that once he had been removed from service he became functus officio and no question arose for dismissing him again through the impugned order-Such contention upheld- Petition accepted.
(Paras, 2,3 & 4)
For the Appellant: M.I). Tahir, Advocate.
For the Respondent: Farooq Bedur, Advocate.
Date of heanng: 24th January, 1989.
IRSHAD HASSAN KHAN, J.-This petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeks a declaration that the petitioner's dismissal from service bv order dated 25.5.1988, pased by the Assistant Commissioner, Narowal, is without lawful authority and of no legal effect.
2. Briefly, the facts of the case are that the Assistant Commissioner/Collector, Narowal, vide his order dated 8.7.1987 removed the petitioner from service as Patwari. The petitioner challenged his removal before the Commissioner, Gujranwala Division, Gujranwala. His appeal was rejected on 11.11.1987.Thercafter, he challenged his removal from service by means of Writ Petition No.5471-S-87, which was also dismissed by my learned brother Afrasiab Khan, .1. By his order dated 17.1.1988, on the ground that an adequate and efficacious remedy was available to the politioncr before the appropriate Service Tribunal.
3. Learned counsel for the petitioner submits that the petitioner has challenged his first order of removal before the Punjab Service Tribunal and the matter is sub judice there. Notwithstanding this, the Assistant Commissioner, Narowal, by his order dated 25-5-1988,dismissed the petitioner from service with immediate effect.Learned counsel further submits that once the petitioner has been removed from service by the earlier order of the Assistant Commissioner/Colleclor, Narowal, he became functus officio and no question arose for dismissing him again through the impugned order.
4. There is great force in the submissions of the learned counsel for the petitioner. The learned Advocate-General has also frankly conceded that no second order of dismissal could be passed against the petitioner as long as the first holds the field.
5. In view of the above, the order dated 25-5-1988 of the Assistant Commissioner/Collector, Narowal,is declared as without lawful authority and of no legal effect. The result is that the previous order dated 8- 7-1987 shall hold the field, subject to final decision by the Punjab Service Tribunal.
6. With these observations, the writ petition is accepted with costs.
K.L.R 1989 Labour and Service Cases [Karachi] flm'/K.Imam Ali G.Kazi, J.
ABSAR HUSSAIN AND ANOHTER Versus PAKISTAN AND ANOTHER C.P. No.D-557 of 1985,decided on 12th Decern bar .1988. Constitution of Pakistan, 1973 -Art.199-Petitioners not registered as "Professional Engineers" by the Pskistan Engineering Council- Respondent No.2-The ground for such refusal being that their B.Tech (Hons) Degree not accepted by the Council as being equivalent to B.Sc. Engg/B.E. Engineering-Petitioner contending that on the basis of decision of respondent No.1 petitioner had taken pains and obtained such degree-The respondents could not lake any steps whereby the effect of such decision could be nullified-Further on the pronouncement made by Govt of Pakistan that such degree will be treated as equivalent to B. Sc. Engg/B.E. Engg: petitioners had acquired a vested right of being entitled to be enrolled as "Professional Engineers"-Held:-That under the Pakistan Engineering Council Act 1975-Pakistan Engineering Council since been given full discretion in recognising engineering qualifications granted by institutions not specified in the First Schedule thereof-Further held/ That respondent No.1 had not taken any steps that templed the Petitioners to lake further exminations-Also they had\ not acquired any vested right-Petition dismissed- (paras 1, & 4 7)
PLD 1964 SC 503, PLD 1969 SC 391. PLD1961 SC 415, PLD 1974 SC 180, PLD 1979 SC 10, PLD 1979 SC 32 and 198l SGMR 1002 .......... Refer.
For the Petitioner:K\vn\\A M.I.Sliaq, Advocate For the Respondent:U\ha\ Ahmad, Advocate Date of hcaring:\4t\i September,and 19th September. 1988.
IMAM ALI G.KAZI. J.- This petition calls in question the decision of the Pakistan Engineering Council (respondent No.2) refusing to register the Petitioners as "professional engineers" on the ground that their B.Tech (Honours) degree has not been accepted by them as being equivalent to B.Sc.
Engineering/B.E.Degrees.
The facts leadings to the filing of the present petition briefly staled are that both the petitioners after obtaining a diploma in engineering qualified for degree, B. Tech (Honour), from the NED Engineering University in the year 1982.
This petition relates to the dispute raised by the Petitioners relating to the recognition of B.Tech(pass) and B.Tech (Honours) degree obtained by certain holders of diploma of Associate Engineers in Civil Technology from Sind Board of Technical education as being equal to B.Sc Engineering/B.E. Degree.
It is the case of the pelitiners that in order to resolve the issue arising out of thier such demand the then Education Minister, Government of Pakistan addressed a letter dated 26.10.1973 to all the Governors of the for Provinces communicating to them the decision of the Federal Government and requiring them to lake steps staled there-in in order to remove such grievances. The steps mentioned in that letter are reproduced as under; "2.As envisaged in the new Education Policy, the following programme was adopted. There will be two degree courses for diploma holder: (i) B.Tech. (Pass) and (ii) B.Tech. (Honours).
3. Admission to the B.Tech (Pass) course shall be subject to the candidates fulfilling the following minimum requirements:
(i) Three years diploma from a Polpytechnic institute in first division.
(ii) Two years industrial training/expcricncc. Candidates without industrial experience shall be required to undergo one year supervised/guided practical training in industry to be arranged bv the institution concerned.
(iii) ^ Performance in the admission test.
4. B.Tech (Pass) course will consist of a years program of studies at the institution. The degree of B.
Tech (Pass,shall be treated at par with a Bachelors degree in Science.
5. Candidates having successfully completed B.Tech. (Pass)degree courses will be eligible for admission to a two years. B.Tech.(Honours) courses. The first year of this course will comprise supervised/guided industrial training during which the students shall be assigned specific projects relevant to their fields of study. The second year will consist of intensive sludv at tile institution.
B.Tech.(Honours) dgree shall be treated at par with B.Sc. (Engineerring)/B.17 Degree.
It is further asserted that on demand of the Pakistan Diploma Engineers Federation. Ministry of fuel and Manpower Resources. Government of Pakistan vide their office mimorandum dated 16th November, 1974 addressed to the Chiel Secretaries ol all the Provincial Governments also directed them to implement the decision of the federal Education Minister.Lt is further asserted that such assurance was reconfirmed by the various departments of Government of Pakistan and on the basis of such wide assuarance the petitioners actually obtained degree of B.Technical (Honours) from the NED Engineering University in the year 1982 and applied to Pakistan Engineering Council for being registered as "Professional engineers". The Pakistan Engineering Council refused to register them as "Professional Engineer" on the ground that their degrees have not been recognised as being equival cut to B. Sc.Engineering/B.E.Degrees in order to entitle them to such registration.
3. At the very out set it was pointed out to Mr.Khalid M.Ishaque, the learned counsel appearing for the petitioners that out of the two petitioners so far as the petitioner Afsar Hussain (petitioner No.1) is concerned, there is no letter from the Pakistan Engineering Council refusing to register him as professional engineer and in the absence of any such communication the petition so far it relates to him is not maintainable. Mr.Khalid Ishaque then stated that he will not be pressing the petition in respect of petitioner No.1 and the same may be dismissed in his case.
4. The only point that has been urged by Mr. Khalid Ishaque,is that petitioner on the basis of the decision of the respondent No.1 to recognise the B.Tech (Honours) degree as being equivalent to B.Sc.Engineering/B.E.Degree actually took pains and obtained such degree. Thereafter the respondents could not take any steps whereby the effect of such decisions could be nullified. In support of this proposition he has relied on the cases reported in P.L.D.I969 S.C.391,P.L.D.1961 S.C.415,P.L.D.1974 S.C.180,P.L.D.1964 S.C.503,P.L.D.1979 S.C.01,P.L.D.1979 S.C.32 and 1981 S.C.M.R.1002.
5. It is also the case of the petitioner that on the basis of the pronouncement made by Government of Pakistan that their such degree will be treated as equivalent to B.S.C.Engincering/B.E.Degrees the petitioners acquired a vested right of being entitled to be enrolled as the "professional engineers" by the Pskistan Engineering Council.
6. A number of documents from various departments and authorities have been filed along with the petition in support of the above stand taken in the Petition. The following documents have been filed along with the petition:-
1. Letter by the then Minister of Education, Government of Pakistan dated 26.10.1973 addressed to the for Governors of the Provinces.
2. Office memorandum dated 16.11.1984 issued by the Ministry of Fuel and Manpower Resources with copies endorsed to all the Chief Secretaries of all the Provinces.
3. Letter dated 4.1.1978 addressed by Pakistan Engineering Council to all heads of Engineering Department/autonomous Bodies and organisations.
4. Extract from the proceedings of Majlis -e-Shoora.
5. Letter dated 5.1.1982 addressed by University Grands Commission, Islamabad to the Chairman, Pakistan B.Tech.Engineers Council, Lahore.
6. Letter dated 30.4.1980 addressed to General Secretary Sui Gas Northern Gas Association, Rawalpindi by Pakistan Engineering Council.
The letter dated 26.10.1973 addressed to all the for governors of the Provinces by the then Education Minister as is evident from its contents merely communicated a Policy decision of the Ministry of Education, Government of Pakistan, directing them to have it implemented in their respective Provinces. The office memorandum of 16th November, 1974 issued by Ministtry of Fuel Power and Natural Resources containing the decision of the Special Committee formed to consider the grievances presented by Pakistan Diploma Engineers Federation. It merely lays down a Policy for the purposes of recruitment to certain posts for which engineers bolding diplomas could be held eligible and further provides for certain opportunities to enable its members to improve their academic qualifications. The letter of the Pakistan Engineering council dated 4th January, 1978 merely says that Pakistan Engineering Council Act will not affect those persons who are already diploma holders. The extract from the proceedings of Majlis-e-Shoora confirms the contents of the letter of the then Education Minister dated 26.10.1973 referred to hereinabove and further clarifies that the University Grants Commission had been requested to consider the equivalance of B.Tech.
(Honours) degree with B.Sc.Engineering/ B.E.Degrees. The letter dated 20.9.1982 addressed by the Ministry of Water and Power, Government of Pakistan merely determines the ratio of appointment between the diploma-holders and degree-holders. Letter dated 5th January, 1982 addressed by University Grants Commission records a resolution of the Equivalance Committee of the University Grants Commission recognising degrees awarded by Polytechnic Institutions/Universities to be at par with B.Sc Engineering degrees awarded by any other institution/ Letter dated 30th April, 1981 addressed by Pakistan Engineering Council explains the status of diploma-holders vis-a-vis holders of B.Sc.Engineering degree.
Above are the letters of different authorities inter-woven in the petition very efficiently to create an impression that a firm decision was taken by the Government of Pakistan to recognise B.Tech (Honours) degree to be equivalent of B.Sc.Engineering/B.E. Degrees. In fact these are various letters from different, authorities containing decision on different subjects on demand on behalf of diploma holders. Such documents in our opinion do not contain any binding decision by any competent authority authorised by law to recognise such degrees to be equivalent to B.Sc.Engineering/B.E.Degrees, It merely indicates that the subject was receiving consideration by different authorities for the purposes of their different problems.
It will be worth while to point out that Pakistan Engineering Council, the respondent No.2 herein, have been constituted under section 3 of the Pakistan Engineering Council Act, 1975 to perform the funcyons mentioned in its section 8. Following are the functions of the Pakistan Engineering Council specified under section 8 of the said Act: "(a) maintenance of a Register of persons qualified to practise as professional Engineers and consulting engineers;
(b) recognition of engineering qualification for the purpose of registration of professional engineers and consulting engineers;
(c) removal of names from the Register and restoration to the Register of names which have been removed;
(d) laying down of standards of conduct for the members;
(e) safeguarding the interests of the members;
(f) promotion of reforms in the engineering profession;
(g) management of the funds and properties of the Council;
(h) promotion of engineering education and review of courses of studies in consultation with the Universities;
(i) levy and collection of fees from applicants for registration or temporary licences and members;
(j) exercise of such disciplinary powers over the members and servants of the Council as may be prescribed;
(k) formation of such committees as may be prescribed;and
(l) performance of all other functions connected with or ancillary or incidental to the aforesaid functions."
"Professional Engineer" is defined in section 2(j) of the said Act which means a person who holds a recognised engineering qualification and is registered as a professiona;l engineer."Recognised engineering qualification' has also been defined in sub section(b). Which means any of the qualifications included in the first schedule or in the second schedule.According to the Scheme of the Act, certain engineering qualifications granted by particular engineering institutions in Pakistan are included in the first schedule and certain engineering quailifications granted by engineering institutions outside Pakistan are included in the second schedule shall be recognised as engineering qualifications for the purpose of the Act as provided by section 10(1) and section 11(1) of the Act By the provisions made in sub_section(2) of section 10 of the Act, an engineering institution in Pakistan who grants an engineering qualifications not included in the first schedule are required to apply to the Pakistan Engineering Council to have their qualifications recognised and the Pakistan Engineering Council has been authorised thereby to amend the first schedule by including such qualifications in the schedule by way of a notification.In case foreign engineering qualifictions not included in the second schedule he included in it in the similar way. From the Scheme of the Act it is thus clear that it is only the institutions that grant engineering qualifications not already included in the first schedule can apply to Pakistan Engineering Council for recognisation of their qualifications/degree and have such qualifications included in the relevant schedule. It will be worth while here to reproduce letter dated 30th April, 1981 addressed by Pakistan Engineering Council to the General Secretary Sui Gas Northern Gas, Sub-engineering Association,Rawalpindi in order to appreciate stand taken by it so far it relates to recognisation of the degree obtained by the petitioners.
" The council has approved B.Tech (Hons) as equivalent to B.Sc.Engg. Which a Diploma Holder can pass after 4 years of passing the final examination in diploma. The Council has also equated AMIE Examination equivalent to B.Sc Engg. These facilities have been provided to those who want to improve their qualifications to become equivalent to B.Sc.Engg. You are advised to improve your qualifications if you wish to be registered as a Professional Engineer with the Council."
While referring to this letter the Pakistan Engineering Council in their written reply have clarified that they have never recognised the degree of B.Tech.(Hons) to be equivalent to B.Sc. Engineering degree and word "Council" used in its para 5 was inadvertantly written for word "Government". This letter it may further be pointed out has been produced along with the petition deals with the issue of recruitment of diploma holders and those who had acquired B.Technical (Honours) degrees vis- a-vis B.Sc Engineering/B.E.Degree holders. This letter in no way makes any commitment that the holders of B.Technical (Honours) degree will be recognised as persons possessing "Engineering qualifications for the purposes of Pakistan Engineering Council Act, 1975. In fact all the letters produced by the petitioners along with the memo of petition mostly deal with the policy of recruitment of engineers from amongst diploma holders having acquired B. Technical (Honours) degrees, and B.Sc.Engineering/BE those who have acquired degrees but in no way makes any commitment that holders of the former qualification will necessarily be considered as duly qualified persons for the purposes of registration by the Pakistan Engineering Council.
It may also be pointed out that the Pakistan Engineering Council after following the procedure as laid down in section 15 of the Pakistan Engineering Council Act, 1975 has been empowered thereby to withdraw recognisation of certain engineering qualifications listed in the first schedule of the Act on the grounds mentioned therein. It is, therefore clear that the Pakistan Engineering Council has been given full discretion in recognising engineering qualifications granted by institutions not specified in the first schedule.
The petitioners have further relied upon a letter dated 5th January, 1982 addressed to the Chairman Pakistan Technical Engineers Council, Lahore by the University Grants Commission containing a resolution of the Equivalance Committee of that Commission passed in its meeting held on 25th November, 1981.Lt was resolved that B. Technical (Honours) degrees awarded by Polytechnic institutions/universities be considered at par with B.Sc.Engineering degrees awarded by other universities/institutions in Pakistan. The University Grants Commission,is established under the University Grants commission Act, 1974 to perform the functions mentioned in its section 8 which are as under:- "8. For the promotion and co-ordination of university education, the determination and maintenance of standard of teaching, examination and research in universities the promotion of national unity and solidarity, the orientation of university programmes to national needs, the Commission may-
(1) in consultation with the Federal Government, a Provincial Government or the University or other bodies concerned,-
(a) inquire into the financial needs of the universities and prepare quinquennial programmes for their development;
(b) allocate and disburse, out of the fund, grants to the universities for their approved projects and ensure the proper utilisation of such grants;
(c) receive schemes and requests from the universities and, after scrutiny, recommend to the Federal Government or a Provincial Government for grants-in-aid;
(d) collect information and date on all such matters relating to university education in Pakistan and other countries as it thinks fit and make the same available to the Federal Government or a Provincial Government,universities and such other agencies as it may deem fit;
(e) institute fellowships, scholarships and visiting professorships in various universities of Pakistan;
(f) support and co-ordinate the research programmes of the universities;
(g) support and promote extre-mural and extracurricular activities at inter-university level;
(h) supervise generally, the academic programme and development of various institutions of higher learning and education in the country;
(i) recommend to the universities the measures necessary for the improvement of university eduction;and
(j) perform such other functions not inconsistent with the provisions of this Act, as may be prescribed or as may be incidental or consequential to the discharging of the aforesaid function;
(2) advise the Federal Government or Provincial Government-
(a) On the establishment of a new university or the expansion of the activities of an existing university or promotion of higher education;and
(b) On any question which may be referred to it;
(3) bring to the notice of the Federal Government or a Provincial Government the problems of teachers and students and recommend measures for solution thereof; and
(4) Perform such other functions as the Controlling Authority may assign to it.
"The recognisation of engineering qualifications is not one of the functions of the University Grants Commission and it could not legally grant stich recognisation to the petitioners under the Act, being beyond its function. The resolution passed by the Equivalance Committee of the University Grants Commission could at best be considered to be the advise tendered by it. In fact University Grants Commission as is evident from the Statute is established mainly for the purpose of arranging financial aid by the Federal Government to various Universities and perform such other functions inviting coordination work among them.
The Pakistan Engineering Council by its letter dated 26-11-1983 addressed to the Assistant Educational Adviser,Ministry of Education(S & T Wing) Government of Pakistan, Islamabad have unequivocable terms clarified that B.Tech.(Honours) degree is not equivalent to B.Sc.
(Engineering)/B.E and also pointed out certain deficiency in that course that dis-entitles such recognisation. This letter contains the resolution passed unanimously pointing out the following; "(1) B.Tech (Hons) degree is not equivalent to B.Sc.(Engg), B.E.
(2) The deficiencies in B.Tech (Hons) Civil,Mech, Chemical, Electrical and Electronics degrees can be made good in a minimum period of 1/2 years. However, exact period can very upto 2 years or more depending upon the individual institution College/University.
(3) As regards future permanent solution of the problems it is proposed that Diploma Holders instead of doing B. Tech, and B.Tech. (Hons) should as regular B.Sc.(Engg) to become Professional Engineers.
(4) In order to achieve the objective it is proposed that Government should finalize the details of administrative, financial and relevant matters in consultation with Universities,UGC and others"
It also transpired that the issue of recognisation of B,Tech.(Honours) degree to be at par with B.E.
(B.Sc.) degrees was also taken to Wafaqi Mohtasib (Ombudsman) who after examining such issues in detail rejected the complaint. The operative portion of that order reads as under; "The question of B.Tech (Hons) degree was deliberated in various Committees and different levels and it was ultimately decided that the B.Tech(Hons) degree in the present stage cannot be recognized equivalent to BE/B.Sc. Engineering degree as there are a number of deficiencies in their courses of studies. It was also decided that the students who have already qualified B. Tech (Hons)should be allowed to complete their deficiencies in order to obtain proper degree B.Sc.Engineering in their field of specialization.
This is one of those matters in which the administrative act is dependent on a technical issue which, in its control, has to be decided by a Body of Technical Experts who alone are competent to do so.Since it is a Technical matter, it has to be resolved as such rather than a case of simple maladministration; In view of the report of Pakistan Engineering Council and the fact that a policy decision has been taken by a Statutory Body, competent to take such decision, no injustice has been done and the case is, therefore, rejected." In view of the above, it cannot be said that the respondent No.1 had taken any steps that tempted the petitioners to take further examinations as mentioned above. It cannot equally be said that the petitioners in any manner had acquired any vested right so as to entitle then to be recognised as Professional Engineers under the Pakistan Engineering Council Act, 1974. We,therefore, see no reason to either to grant the declaration or issue direction to the respondent No.2 to register the petitioners as the Professional Engineers.
The petition is, therefore, dismissed with no order as to costs.
K.L.R 1989 Labour and Service Cases [Karachi] Present: Ajmai Mian, CJ.
MUHAMMAD MATIN HASJHMI Versus NATIONAL CONSTRUCTION CO.
C. P. No. D-817 of 1982, decided on 8th December, 1988.
Industrial Relation Ordinace 1969 -S. 25 A -Petitioner a steno-typist promoted as Administrative Officer-His service Terminated- Being aggrieved petitioner serving notice u/s 25-A of IRO 1969-Resporident No.1 resisting the same thereby contending that the petitioner was not a workman in terms of S.2(l) of the standing Orders Ordinance-However, the Labour Court allowing the application ordered the re-instatement of the petitioner with all the back benefits-Sind Labour appellate Tribunal reversing the same-Petitioner challenging it and urging that the Labour Court below on the basis of the proper appraisal of evidence had rightly concluded that the termination of service was illegal and mala fide-Held that the Sind Labour appellate Tribunal was justified in holding that the petitioner did not fall within the definition of workman-It is- -Further held-True that it is not the designation of a person which determined his status-The criterion is the duties which are to be performed by him-The view finding favour with the appellate Tribunal on the basis of the materialavaiLahle it cannot be interfered with in exercise of Sauud JMs^^roiMu^fcmOTefi6nt^P8fmon dismissed. #tbs (Paras, 2 4 & 6) #the Advocate High Court ^Pb.)
Office fKOrMih 'Ptetitiohet^Vtaja Qureshi, Advocate. #tbs ePSr the Respondent: Latifur-Rehman Khan Survery, Advocate.
Hospital Road h ^fe'ce'^8^9^ember' 1988' #the \/j. A, HnUS- Civil H
AJMAL MIAN, CJ.(l)-- This petition is directed against the order dated 23.8.1981 passed by respondent No.2 in appeal No.KAR-163/1981, whereby the learned Sind Labour Appellate Tribunal set aside the order dated 19.2.1981 passed by the learned Vth Sind Labour Court at Karachi.
2. The brief facts leading to the filing of the petition are that the petitioner was employed as a steno-typist by respondent NO.1 on 8.12.1973. He was promoted as Administrative Officer on 13.1.1975.
He remained as such till the time his services were terminated on 22.2.1979 on the ground that his services were no longer required. The petitioner being aggrieved by the above action of respondent No.1 after serving grievance notice filed an application under section 25-A of the IRO, 1969, (hereinafter referred to as the IRO), which was resisted by respondent NO.1 inter alia on the ground that petitioner was not a workman in terms of sub-section (i) of section 2 of the Standing Orders Ordinance. However the learned Labour Court after recording the evidence and after hearing the parties allowed the above application and ordered reinstatement of the petitioner with all back benefits. Respondent No. Being aggrieved by the above order filed aforesaid appear which was allowed by learned Sind Labour Appellate Tribunal. The petitioner being aggrieved by the above order, has filed the present petition.
3. In support of the above petition, Mr. Raja Qureshi learned counsel for the petitioner has vehemently urged that the learned Labour Court on the basis of the proper appraisal of evidence had rightly concluded that the termination was illegal as it was a mala fide act. He has further submitted that the learned Sind Labour Appellate Tribunal was not justified in reversion the finding of the learned Labour Court particularly after recording evidence of an additional witness, who was not examined by respondent NO.1 before the Labour Court.
4. In furtherehce of his above submission he has referred to the order of the learned Labour Court, particularly the reasoning given therein. He has also invited our attention to the fact that the additional witness Saeed Akhtar Ansari, who was examined by the learned Sind Labour Appellate Tribunal was unable to produce any documentry evidence to substantiate his statement that the petitioner was provided a clerk, Chowkidar, a cook, a car and a Driver. In this regard it may be pertinent to refer to the relevant portion of Ex.3/F which contain the duties of the petitioner, which he was to perform, which reads as follows:- "Experience 15 years a) l2 years prior to NC as follows.
General Administration Commercial work including import of machinery items.
Office management.
Sales promotion.
Advertising and public relations. b) About 3 years in NC Secretrial assistance to M.D.
Sites Mobilization work assistance to PMS including security arrangements, admn work, Transport programming, protocol work for Romanian Specialists, liaison with Government authorities including arrangement of visas, exist permits, residential accommodation, hiring of furniture and fitting, bunglows, medical care etc. Ect.
If the above duties are to be read with the statement of the above additional witness, Mr. Saeed Akhtar Ansari, in our view, the learned Sind Labour Appellate Tribunal was justified in holding that the petitioner does not fall within the ambit of the definition of workman given in clause (I) of Section 2 of the Standing Orders Ordinance, lt is true that it is not the designation of a person which determine his status as to being a workman or holding a managerial post, the criterion is the duties which are to be performed by him. In the instant case not only the designation ;of the petitioner was of an Administrative Officer but the duties which were assigned to him are not the duties which can be said to be performed by a workman. We see no reason to disbelieve the above additional witness examined by the learned Sind Labour Appellate Tribunal. According to him the petitioner was provided a clerk, a Chowkidar, a cook, a car and a driver.
5. It was also contended by Mr.Raja Qureshi that as a matter of fact the learned Sind Labour Appellate Tribunal filled in the lacuna by examining the above additional witness. In our view, the learned Sind Labour Appellate Tribunal has the power examine additional witness in case it considers it just and proper. The above view has been taken in a number of cases decided inter alia by this Court.
6. We are inclined to hold that the learned Sind Labour Appellate Tribunal being an appellate Court was entitled to take the view found favour with it on the basis of the material available before it, which cannot be interfered with in exereise of Constitutional jurisdiction. The petition is, therefore, dismissed but there will be no order as to costs.
K.L.R.1989 Labour & Service [Peshawar] Present: Malik Muhammad Parvez Khan, Chairman and Taj Muhammad Khan,Member MOHAMMAD AS LAM KHAN Versus THE SUPERINTENDENT OF POLICE,BANNU. AND OTHERS Appael No. 93 of 1988,decided on 6th April, 1989.
NWFP Service Tribunals Act, 1974 -S.4-- Appellant-Prosecuting Inspector of Police-Recording of adverse remarks in the ACR-Appeal thereagainst-Contention being that he was not heard by the appellate forum below-Held that- In the case of representation against the adverse remarks the appellate forum must summon the aggrieved person and hear him-Besides the entire ACR whether good or br 1 must be communicated to the officer in order to encourage him to v.Ork more efficiently and honestly and also to give him a chance to improve his defccts- Appeal accepted-Casc remanded to respondent No.3 who will summon the appellant within three months and make an appropriate order on the representation of the appellant-Further heid-That in case if appellant is not called upon to explain his position within the stipulated period the adverse remarks shall automatically stand expunged from the ACR.
(Paras,l 8)
For the Appellant'. Muhammad Khan Khakwani Advocate.
For the Respondent: Ataullah Khan,S pedal Govt. Pleader.
Date of hearing: 6th April, 1989.
MALIK MUHAMMAD PARVEZ KHAN, (CHAIRMAN.) ~ Appellant has preferred the present appeal against the order dated 13.8.1987 of respondent No.1 vide which the adverse remarks were entered in his ACR for the year, 1986 by him. He has also challenged the subsequent order dated 10.1.1988 of respondent No.3 through which his departmental appeal dated 20.9.1987 was rejected.
According to the appellant he was posted as Prosecuting Inspector Police at Lakki; District Bannu in the year,1986. Prior to it he had already served there but under different circumstances as this time the DSP, Mr. Zahiruddin who was on enmical terms with him due to personal reasons was after his carier and at his instance respondent No. 1 gave him the adverse remarks.He made a representation to respondent No.3 but the same was dismissed without hearing him. This practice invogue is against the principles of natural justice and the Islamic Law.He was not given any warning/explanation about his conduct during the period under reference.The adverse remarks would block his promotion.Lt so happened that respondent No.1 awarded a reward of Rs.200/-with recommendatory certificate to the appellant on 18.1.1986 for his over all good performance and the period in question covers the period under report surprisingly.The court may direct the respondent No.1 to place before it the Kacha Register maintained by him which contains the activities of the subordinate officials including the appellant for the year, 1986.Similarly respondent No.3 was bound to furnish the appellant with the copy of the whole report and not the particular part effecting him adversely.He placed on the record the copies of the FIRs No. 5 and 6 dated 13.1.1981 of Police Station Takht Nasratti, District Karak regarding the enmity between the appellant and the said Mr.Zahiruddin, DSP.
Together with the appeal there was an application for condonation of delay in filing appeal on the ground that he was awfully busy in performing his duties and accordingly could not approach the Tribunal in time.Since the impugned order is mala fide, void and illegal,therefore, the delay may be condoned in the interest of justice.
The respondents submitted the written statement denying the allegations of the appellant and alleging therein that the appeal is not maintainable as the appellant has not exhausted the departmental remedy before approaching the Tribunal, that the appeal is barred by time and that Tribunal, has got no jurisdiction. Further it was asserted that a DSP being always a junior officer than the S.P. He could not be in a position to influence the S.P. In awarding the adverse remarks to a subordinate officer. DSP Mr. Zahiruddin had got no enmity with the appellant and he was not instrumental in spoiling the carrier of the appellant. The remarks were the result of the personal observation and knowledge of the S.P.There is no law obliging the respondents to give notice of personal hearing to the appellant. The departmental appeal contains all the grounds on which the aggrieved person relies and the authority assess the same before passing the order upon it.The same was done in the present case. The appellant was verbally warned by respondent No 1 on many occasions to mend his way. The reward of Rs.200/- along with the certificates was in recognition of his work during the year, 1985 whereas the adverse remarks relates to the year, 1986 The Katcha Register maintained by respondent No.1 is confidential document and cannot be produced in court in the public interest.The ACRs are prepared under rules, 13 ; 17 and only the adverse remarks are to be conveyed to the concerned officer and not the whole report.
Learned counsel for the appellant argued that ACR is such a precious document on which the entire carrier of an officer depends.Lt affects his seniority,promotion and further retention in service besides other co- related matters and before giving adverse remarks to an officer, the Reporting Officer as well as the Countersigning Officer are legally bound to warn/counsel him for his acts/omissions during the period under report. A perusal of the impugned remarks wuold show that his honesty was treated as doubtful and in the pen picture it was endorsed that "on occasions complaints were received against him for maintaining relations with the bad-characters of Lakki City".The Reporting Officer according to the learned counsel for the appellant was, therefore, bound to call explanation of the appellant as and when he received complaints against him but the record shows that no action was taken against the officer.His integrity was labelled as doubtful but the Reporting Officer kept quiet and mum during the whole year and at the end of the year he mentioned this fact in the ACR.Learned counsel further argued that Mr. Zahir-ud-Din the then DSP Lakki was not on good terms with the appellant so he persuaded the Reporting Ofiicer to give the appellant adverse remarks in order to spoil his carrrierAccording to the counsel since the ACR effects the terms and conditions of service of an officer, therefore, it is incumbent upon the appellate forum to summon the aggrieved person at the time of deciding the appeal/representation regarding the expunction of the adverse remarks.This was not done in the case and it is only known to the authority as to whether he applied him mind to the facts ot the case and the averment in the representation while deciding the same or not. According to the learned counsel for the appellant since the impugned order was mala fide, void and bad in law, therefore, the delay in filing the appeal may be condoned in the interest of justice.
On the other hand learned Special Public Prosecutor assisted by PDSP Bannu argued that appellant deserved the remarks given to him by respondent No.1 who had no enmity with him and who cannot be deemed to be under the pressure of Mr. Zahir-ud-Din DSP. There is no provision for personal hearing in the rules in such like matters. Over and above the appeal is barred by time and it may be dismissed solely on this ground.
We have given our patient hearing to the arguments and have gone through the record produced by the representative of the department.
There is no denying the fact that appeal was preferred with a considerable delay but the court is empowered to condone the same if the situation demands so and in the present case we are sure that there are sufficient grounds to excuse the delay. It is an admitted fact that the ACR is such document which effects the entire carrier of an employee so while writing the same, the Reporting Officer and the Countersigning Officer is not only responsible to his good conscious but also under the doctrine of natural justice a person must be treated fairly and judiciously and may not be condemned un-heard. They are supposed to comment upon various aspects of his personality very carefully. The ACRs may not be given on the basis of nepotism, favourism.And likes and dis- likes. The officer may not be liked by a Roporting Officer or a Countersigning authority but at the same time so far his performance, integrity, competence and other traits are concerned, he may be quite upto the mark. Therefore the ACR may not be written in a haphazard and clumsy manner.
It must represent the true stale of affairs during the period under report and in any case it may not reflect any happening in the year in which it is written. The Initiating authority or the Countersigning authority is responsible to call for his explanation in case if any complaints is received by them.
Mere writing that complaints were received during the period under report would not absolve the authority from the responsibility of writing the ACR in its true sense. What happened in the present case is that he was treated as an officer of 'B' category which presupposes his promotion in his turn. No-where in the impugned ACR he was treated as an officer of 'C' category by the Reporting Officer, notwithstanding the fact that he was labelled to be a dis-honest officer,having contacts with persons of bad character of the area. Surely if we take into consideration the adverse remarks then the Reporting Officer was legally bound to call for the explanation of the officer concerned and if not satisfied to warn him and also initiate enquiry against him if the appellant had not improved himself. This was not done in the instant case. On a look of the record of the officer we have come across the previous reports in which he was either marked a 'A' or 'B' and his performance was appreciated by his Immediate Officer throughout. It is strange to note that how the officer became dis-honest and an associate of bad characters of Lakki City for a period of 3 months only while prior and after that he received the good reports from different officers. Similarly an adverse ACR as we held earlier spoils the carrier of an officer therefore just like other departmental proceedings/enquiry so in the case of representation against the adverse remarks the appellate forum must summon the aggrieved person and hear him before the decision on his appeal/representation is made.Besides this not the adverse remarks but the entire ACRs,whether good or bad must be communicated to the officer in order to encourage him to work more efficiently and honestly and also to give him a chance to improve his defects Of course ACR guides a person so he must be aware of his good as well as bad aspects for the period under report.
Further-more the term average may be deleted from the ACR of the officers because in certain cases a good officer will get an average ACR from the hands of his superior who is not happy with him.Lt is experienced that an officer/having to his credit average ACRs will not be promoted to the next higher post, if the same falls vacant. The columns in the ACR may be cither very good or good or poor.The delay caused in filing the appeal is hereby condoned.By accepting the present appeal we remand the case to respondent No.3 who will summon the appellant within 3 months from today and made an appropriate order on the representation of the appellant, in .The light of the findings made above.In case if appellant is not called upon to explain his position within the stipulated period, the adverse remarks shall automatically stand expunged from the ACR.Parties are however left to bear their own costs and file be consgned to the record room.
K.L.R.1989 Labour and Service [Abbottubad] Present: Malik Muhammad Parvez Khan, Chairman.
RAJA ABDUR RASHID AND OTHERS Versus THE GOVERNMENT OF NWFP Appeal No.66/1988, decided on 25th March, 1989.
NWFP Service Tribunals Act, 1974 -S.4- Appellant an Excise and Taxation Inspector-Reverted from such post to that of Senior Clerk- The same assailed-Rcspondcnt No.5 argued that the Deptt followed the rules in promoting the appellant-No infringement of rules was made as 50% quota was fixed for both set of employees- Further contended that the promotion of the appellant was for a paticular task-Held that- S.4(b)(i) of the Act 1974 lays down that the Tribunal is debarred to adjudicate upon the matter of proniotion/revcrsion- The same being the pre-rogative of the departmental authority-Further held-That temporary promotion not conferring upon an employee the right to claim the same permancntly-Appcal dismissed.
(Paras, 1 5 & 6)
For (he Petitioner: Sardar Nasir Aslam Khan, Advocate.
For the Respondent No.5: Ghazi Muhammad Asif, Advocate. Date of hearing: 25th March, 1989.
Key Law Reports JUDGMENT #tbs [Vol.Viii #the #tbs L. & S.46 #the Malik Muhammad Parvez Khan, (Chairman) -- Appellant assailed the impugned order dated 1.6.1987 vide which he was reverted from the post of Excise & Taxation Inspector to that of Senior Clerk in the Establishment.
According to him he joined the department as a Junior Clerk in the year, 1967 and from that time onwerd he had been performing his duties honestly and efficiently. He was promoted to the post of Inspector on 23.6.1986 at the recommendations of the Departmental Selection Comittee and along with him one Malik Mohammad Zahir was recruited from direct quota. After a year however the appellant was reverted to his original post while Malik Mohammad Zahir was allowed to continue as such.
However an incumbent of the department went on earned leave later on and the appellant was again promoted in his place on 4.6.1987. The department violated its own rules by ordering the reversion of the appellant. He preferred an appeal to the concerned Minister but instead of taking any positive action, an enquiry was conducted against him as to why he has approached the Minister to seek his redress. The reversion of the appellant is illegal, void, mala fide, capricious, arbitrary and against law and cannons of justice and equity.
Respondents when served, denied the claim of the appellant by saying that they have complied with the rules which formulate a policy for the promotee and the direct employees against quota of 50% each and the appointment of Malik Mohammad Zahir was against the quota reserved for the direct recruits. If he was kept in service it in no way affected the rights of the appellants adversely, but no junior person than the appellant was promoted by superseding him. During the pendency of the appeal, it so happened that Malik Mohammad Zahir also prayed for his implemented as a party in the case as according to him his valuable rights would be affected in case he is not given an opportunity to defend himself, so he was also impleaded as a party and was asked to submit the written statement. It was added by new respondent that appellant has got no locus-standi, that the appeal is vague and mala fide, that it is barred by time and that it is incompetent. Further he submitted that not the appellant but one Gulistan was senior to him and under the rules not he but Gulistan should have filed the appeal. His appeal is therefore incompetent.
Record perused and arguments heard.
Learned counsel for the appellant argued that he filed appeal to the concerned Minister and if it was not addressed to the peoper forum it was incumbent upon him to send the appeal to the next higher officer. In the present case he was respondent No.1 and according to him the appeal was sent by the Minister to respondent No.1 for disposal. Further he argued that appellant was approved by the Departmental Promotion Committee for the post of Inspector, Excise & Taxation and he could not in any way be reverted to his substantive post of Senior Clerk and instead the services of respondent No.5 should have been dispensed away as he happened to be junior than the appellant.
On the other hand learned counsel for respondent No.5 argued that the department followed the rules in promoting the appellant and appointing respondent No.5 to the post of Inspector, Excise & Taxation. No infringement of rules was made by the official respondents. 50% quota was fixed for both set of employees. Official respondents followed the said policy in letter and spirit. Besides this the promotion of the appellant was for a particular task and the order of promotion would show that it was from 1.7.1986 to 31.5.1987 (actually the period is 11 months and not one year as given in order dated 23.6.1986).
We have gone through the record and the arguments. Section 4 Subsection (b)(i) of the NWFP Service Tribunal Act, 1974 lays down that this Tribunal is debarred to adjudicate upon the matter of promotion/reversion. It is the pre-rogative of the departmental authority and Tribunal could not interfere with it. The same question of promotion/rr-'f'rsion is involved in the present case and the Tribunal has nothing to do with such like disputes. Over and above this the promotion of the appellant was for a specified purpose and when it was obtained, he was reverted to his own cadre/grade. No injustice was done to him. The temporary promotion docs not confer upon an employee the right to claim the same permanently. The official respondents adhered to the quota fixed by the government. They have not violated it. The result is that the present appeal is dismissed but the parties are left to bear their own costs and file be consigned to the record room.
K.L.R 1989 Labour and Service Cases [Lahore] Present: Malik Muhammad Qayyuin, J. * DR. MANSOOR AK1ITAR Versus SECRETARY HEALTH ETC. Writ Petition No.68 of 1989, decided on 8th February, 1989.
(a) . Constitution of Pakistan, 1973 -Art.l99The Punjab Public Service Commission-Respondent No.2 refusing to recommend the petitioner for appointment as a Clinical Pathologist in the service of Secretary Health-Respondent No.1-Petitioner calling in question such refusal-Petitioner placed at No.5 on the merit list drawn-The first seven from such list recommended for appointment- However, subsequently two other posts falling vacant wherefor a requisition was placed by respondent No.1-Petitioner contending that under Regulation No.30 a merit list once prepared remained valid for a period of one year from the date of its issuance-He was entitled to be recommended as a substitute for appointment- Conversely cespondents submitted that as requisition for new posts has been received the previous merit list ceased to be operative-Held- The question arising whether the expression "next selection" as used in Regulation 30 means the entire process of sleclion.
(Paras, 12 3 4 5)
(b) . The word *selection"-meaning of -The said word not defined in the Regulations or the Punjab Public Service Commission Ordinance 1978-According to Black Law Dictionary 5th Edition, Page 1219 thereof the word "selection" means to take by preference from among others-To pick out: to cull-In Ballcntis Time Law Dictionary the "selection" of jurers means "the preparation of a list of names of persons, to have jury service"
(Para, 6 7)
PLD 1962 Lah 421 and PLD 1961 Lah. 189 relied.
(c) . Constitution of Pakistan, 1973 -Art.l99The Commission while acting under S,10(2) of the Ordinance 1978 framed Punjab Public Service Commission Regulation 1987 thereby prescribing the details as to the manner in which the selection was to take place-Held that- It was difficult to accept the contention of the petitioner that the expression "next selection" be read in a narrow sense so as to confine it to the actual picking up of the candidates and all other steps leading thereto be ignored-The contention of (he petitioner-Further held: Cannot be accepted-Further no right vesting in the petitioner for being recommended as a substitute. 1 (Paras, 2 4)
PLD 1965 SC 120 refers.
For the Appellant: Abid Hassan Minto, Advocate.
For the Respondent: Rana Muhammad Arshad Addl. Advocate-General.
Date of hearing: 8th February, 1989.
MALIK MUHAMMAD QAYYUM, J.- This constitutional petition, calls in question, the refusal of Punjab Public Service Commission, respondent No.2(hereinafter referred to as the Commission) to recommend the petitioner for appointment as a Clinical Pathologist in the service of respondent No.1.
2. The facts necessary for the disposal of this petition are that on the requistion of respondent No.1, the Commission through a public advertisement dated 2nd of July, 1988 invited applicatins for appointment to seven posts of Clinical Pathologists. The candidates, including the petitioner were interviewed by the Commission and on its basis a merit list was drawn up in which the petitioner was placed at No.8. The first seven candidates from the merit list were recommended for appointment by the Commission to respondent No.1 on 9th of July, 1988. Subsequently, two others posts fell * vacant and a requisition was sent by respondent No.1 to the Commission which was advertised these posts by issuing a public notice on 7th of October, 1988.
It appears that out of the seven candidates recommended for appointment, Dr. Ishtiaq Ahmad did not avail of the offer of appointment by the due date i.e. 7th of December, 1988 and the offer made to him thus stood cancelled. Respondent No.1, consequently asked the Commission for selection afresh against this post also on 10th of December, 1988(Anncx-B).
In this manner the Commission was asked to recommend candidates for filing up three posts of Clinical Pathologists. On 19th of December, 1988(Anncx-C), the petitioner objected to the fresh selection by representing that he being next on the merit list, was entitled to be recommended as a substitute in place of Dr. Ishtiaq Ahmad who had not joined the service. This request was refused which led him to file this constitution petition.
3. Ln the para wise comments, filed by the respondens, they have taken up the position that the previous merits list ceased to be operative as a requisition had been receiv'd for a fresh selection by the Commission from respondent No.1 and as such, the petitioner was not entitled to be recommended as substitute.
4. Mr. Abid Hussain Minto, the learned counsel for the petitioner relying on Regulation 30 of the Punjab Public Service Commision Regulation 1987 contended that a merit list once prepared remains valid for a period of one year from the date of its issuance or till the next selection for a similar post. According to the leamed counsel neither the period of one year has elapsed nor fresh selection has taken place and as such the petitioner was entitled to be recommended as a substitute for appointment. The leamed counsel in this respect submitted that the receipt of requisition for fresh selection cannot be equated with selection itself and therefore the refusal of the respondent to recommend the name of the petitioner was without lawful authority. Rana Muhammad Arshad, the Additional Advocate General, appearing on behalf of the respondents submitted that as requisition for new posts had been received by the Commission, the previous merit list ceased to be operative and no right can be claimed by the petitioner on its basis.
5. Two questions which arise for consideration in this constitutional petition are firstly whether the expression "next selection" as used in Regulation 30 means the entire process of selection, starting from the receipt of requisition by the Commission from the department concerned or the actual choosing of candidates only; and secondly whether the department is under any obligation to have the post filled in by a substitute from the same merit list instead of resorting to fresh selection.
6. As regard the first question, it is to be noted word "selection" has not been defined either in the Regulations or the Punjab Public Service Commission Ordinance 1978. Selection according to Black Law Dictionary 5th Edition, page 1219 means to take by preference from among others; to pick out; to cull.In Ballentis,Time Law Dictionary, selection of jurers, has been stated to mean "the preparation of a list of names to persons to have jury service".
The Punjab Public Service Commission has been constituted under the Punjab Public Service Commission Ordinance, 1978 and is obliged by the Statute to select suitable candidates for appointment on a requisition made by the various government departments. In order to regulate the procedure for the appointment, the Commission acting under Section 10(2) of the Ordinance, has framed the Punjab Public Service Commission Regulation 1987 which prescribes the details as to the manner in which the selection is to take place and the various steps which are required to be taken before the actual choice of candidate is made. This process cannot be completed in a day.
The various formalities prescribed by the Regulation like receipt of requisition, issuance of public notices, advertisement of posts, receipt of applications from the candidates, and holding of interviews or the tests, are all steps in the process of selection of the candidates while interpreting the Regulation, the object for which these have been framed, cannot be lost sight of. It is, therefore, difficult to accept the contention of the learned counsel that the expression "next selection" should be read in a narrow sense so as to confine it to the actual picking up of the candidates and all other steps leading to it should be ignored. This interpretation would be against the object of the Regulation itself. In two decided cases of this court namely (Muhammad Nazir Hakim v. Bukhtiar Said Muhammad & another (PLD 1962 Lahore 421) and Irfan Akhtar Shah v. Election Tribunal District Shahour at Sargodha and other (PLD 1961 Lahore 189) the word "election" was interpreted to be sufficiently wide to include all steps leading to actual poll. It was further held that when a law requires that certain steps must be taken before the completion of the process, it cannot be said that those steps are not a part of the process itself. The observations are fully applicable to the present case while interpreting the word "selection" for the object of both "election" and "selection" is the same, namely picking up or choosing suitable persons. In my view, therefore, the contention of the learned counsel cannot be accepted.
7. Reverting to the second question, it will be seen that there is no right vesting in any candidate, for being recommended as a substitute either under the Ordinance or the Regulations. Regulation 27 which deals with these aspect of the matter provides that if a recommended candidate fails to join, a substitute can be provided from the same merit list, if so requested by the department. A discretion thus vests in department either to make a request for providing a substitute from the same merit list or have the vacancy filled by a fresh selection. The learned counsel for the petitioner, however, contended that the Regulation becomes applicable once a request is made to the Public Service Commission, Punjab, for providing a fresh name for appointment. According to the learned counsel it is not necessary that the request envisaged by Regulation 27 must be a request to provide a substitute from the same merit list. I regret my inability to accept the contention of the learned counsel. The word "so" appearing as a prefix to the words "requested by the department" leaves no room for doubt that the request contemplated by the regulation is that which is mentioned in its opening part namely the request to provide a substitute from the same merit list. It cannot be held, that though a request is made by the department, for fresh selection yet, the Public Service Commission, Punjab, can provide the substitute from the previous merits list.
8. The learned counsel has, however, relied upon Regulations 28 & 29 and contended that under these Regulations, there is no option with the department or with the Public Service Commission, but to make a recommendation out of the merit list already prepared Regulation 27 to 29 deal with the same subject and appear under the same heading namely Substitution of Recommendations.These Regulations are to be read together and not in isolation of each other.
Regulations 28 & 29, deal with the question of zonal allocation among the candidates and come into play only when a request has been made under Regulation 27 by the department to provide a substitute from the same merit list. In the absence of any such request, Regulations 28 & 29 are not attracted at all. It is only when the process has been set in motion through a request made under Regulation 27 that a question arises as to how and under what zonal basis is provided by Regulations 28 & 29.
It is well settled that while interpreting the provisions of a statutory instrument recourse should be had to be provisions of the instrument as a whole and not to any part thereof. (Begum Shamsunnerhar v. The Speaker. East Pakistan Provincial Assembly. Dacca & another (PLD 1965 S.C.
120 refers). The heading under which these Regulations fall also provide a useful guide for interpreting the same though it is not conclusive.(See Bindra's Interpretation of Statute (7th Edition page 54), and Maxwell on the Interpretation Statute (12th Edition page 11). Viewed, from this angle it bcomes clear that a substitue can only be provided from the merit list if a request to that effect is made by the department and not otherwise.
9. In the present case, admittedly no such request was made by the department for supplying any substitute from the same merit list. On the other hand, the department asked for fresh selection for the three posts i.e. For two additional post and one which had fallen vacant on account of failure of Dr. Ishtiaq Ahmad to join the service.This being the position the petitioner had no right to insist that his name should be recommended as a substitute for appointment from the same merit list.
For the foregoing reasons, this constitutional petition has no force and is dismissed leaving the parties to bear their own costs.
K.L.R. 1989 Labour & Service [Peshawar] Present: Malik Mohammad Parvez Khan, Chairman and Taj Muhammad Khan,Member MR.MAZHAR I LA HI Versus THE INSPECTOR GENERAL OF POLICE AND OTHERS Appeal No.104 of 1988, decided on 11th April, 1989.
NWFP Service Tribunals Act, 1974 -S.4-Appellant-A Head Constable-Charge being of illegal gratification- Acceptance of- Respondent No.3 inflicting minor penalty- However,respondent No.2 suo moto enhancing the punishment of the appellant-The same challenged-Held that- In view of the promulgation of Rules 1975 respondent No.2 was not authorised to rely on the earlier rules and enhance the punishment to compulsory retire the appellant from service- -Appeal accepted-Appellant re-instated in service.
(Paras, 1 2 & 5)
For the Petitioner: S.Muzaffar Shah, Advocate. D.I.Khan For the Respondents: Special Govt. Pleader.
Date of decision: 11th April, 1989.
Malik Mohammad Parvez Khan, (Chairman) - Appellant filed the present appeal against respondent No.1's order dated 29.6.1988 vide which the departmental appeal of the appellant against his compulsory retirement dated 13.5.1987 passed by respondent No.2 was rejected.
According to him he was serving as Head Constable under respondent No.3 when one Shahid Hussain preferred an application on 21.6.1986 (actually the date was 23.6.86) to the Deputy Superintendent of Police, Saddar D.I.Khan containing the complaint of receipt of Rs.2000/- from him by the appellant on 17.6.1986 at evening time. Although per daily diary of Police Station Cantt, D.I.Khan, the appellant was in Peshawar on 17.6.1986 which fact was corroborated by the statement of Mr. Inayat Ali Shah, Sub Inspector dated 14.10.1986. Even the complainant stated before the Enquiry Officer on 4.10.1986 that he had not made any complaint against the appellant and denied to have written the same. The allegation against the appellant was that he caught red handed a prostitute girl in studios along with the complainant and left them free on receipt of Rs.2000/- as illegal gratification.The enquiry was not conducted properly. Any-how respondent No.3 inflicted upon him the minor penalty but the strange thing was that when his accomplice preferred appeal to respondent No.2 against the conviction by respondent No.3, the respondent No.2 suo moto enhanced the punishment of the appellant which under the rules he could not do. He surpassed his jurisdiction and the order is accordingly illegal and void.
Claim of the appellant was vehemently resisted by the respondents who stated that the respondent No.2 had got the jurisdiction to check the acts and omissions of his subordinates that he was empowered under the law/rules to enhance the punishment, that the act of the appellant was so grave that the punishment awarded to him by respondent No.3 did not serve the purpose.
Arguments heard and the record perused.
Learned counsel for the appellant argued that the complainant denied the averments made in the alleged complaint against the appellant. Respondent No.2 had got'no power to enhance the sentence awarded to the appellant by respondent No3. Rules 1934, to which the reference was made by the respondents have since been withdrawn and cannot be attracted to the facts of the present case.
On the other hand Special Govt. Pleader argued that although rules 1975 were applicable in the departmental proceedings, yet it cannot be stated that rules, 1934 were withdrawn totally. TTiey also hold the field. The action of respondent No.2 was quite legal as the appellant was involved in a serious case of corruption and instead of awarding the major punishment to him, respondent No3 took a very lenient view. Respondent No.2 before awarding the major sentence to the appellant issued a show cause notice to him and after hearing him he passed the sentence against him, therefore the same is not illegal.
The above narration of facts would depict that respondent No.2 suo moto took the action against the appellant in another appeal filed by the co- accused of the appellant. He acted under rule 16.28 of the Police Rules, 1934 which empower him to review, enhance, modify, confirm or annul the punishment awarded to a police servant under rules 16/1 of the said Police Rules. The case of the appellant was dealt with by respondent No.2 on 13.5.1987. However prior to it NWFP Police Rules, 1975 were enforced and rules 13 of the said rules which is reproduce below deals with similar matters.
Rules 13 Repeal: "Any Disciplinary Rules applicable to police officers to whom these rules apply are hereby repealed but the repeal thereof shall not effect any action taken or anything done or suffer thereunder."
This clarifies the position. The action assailed by the appellant was taken against him after the introduction of the Rules, 1975. Rules 16/1 and 16/28 are also Disciplinary Rules, therefore, in view of the promulgation of Rules, 1975, respondent No.2 was not authorised to rely on the earlier rules.
Courts or Tribunals derives their strength/power from the statutory enactments. They cannot exercise their powers beyond them and an action taken by them beyond the statutory sanction would be termed as illegal and ultra vires of the rules. This being so, we have got no alternative but to accept the present appeal by setting aside the order dated 13.5.1987 passed by respondent No.2.
He is re-instated in service from the date he was compulsory retired from service. The period of compulsory retirement shall be treated as leave without pay. Since the case has been disposed of on legal analysis of the rules, the parties are left to bear their own costs and file be consigned to the record room.
K.L.R 1989 Labour & Service Cases [Muzaffarabad] Present: Mohammad Siddique Farooqi, Chairman.
ABDUS SAMAD Versus AZAD JAMMU & KASHMIR GOVERNMENT AND 8 OTHERS Service Appeal No.263, decided on 29th November, 1987.
A J & K Service Tribunal Act, 1976 -S. 4-Appointment of Tehsildar-Determination of seniority as Relief Inspectors-Appellant claiming Seniority-Respondents objection thereto being that appeal time barred-The candidature list relied upon not authenticated-Held: Appeal not competent being barred by time-further objections raised by appellant on the tentative list showed that he having not disputed the seniority of respondents Nos 3 to 7 before the departmental authority he was stopped from calling inquestion the same now before the Tribunal-The case against other respondents not established-Appeal- Further held: Being without merit-The same dismissed- (Paras, 2 6 & 7)
For the Appellant: Khawaja Shahad Ahmad, Advocate.
For the Respondents: No.1 & 8. Khawaja Mohammad Hussain, For the Respondents'. No.2 Ex-Parte.
For the Respondents'. No. 3,5 and 7, Abdul Rashid Abbasi, Advocate For the Respondents: No.4 in person For the Respondents: No.6. Sardar Rafiq Mahmood, Advocate.
Date of hearing: 29th November, 1987.
Mohammad Siddique Farooqi, Chairman.-This appeal is directed against order of the Government, passed on 25-4-1984, whereby some acting Tehsildars were promoted as Tehsildars on the basis of the recommendations of Selection Board. The appellant preferred the review petition against this order, which was rejected on 8-T-1985. The appellant pleaded that he was approved as candidate for the post of Naib Tehsildar on 8-3-1973. He had undergone the training and was awarded certificate on 1-6-1984. According to him, he was placed at S.No.7 of the list of the candidates, while respondents No.2 to 7 were shown junior to him, in the candidature list. The appellant was appointed as Relief Inspector on 25-3-1975 and later on he got the appointment as Naib Tehsildar. A tentative seniority list was prepared by the department, wherein his name was placed at S.No.17 and the names of respondents No.2 to 7 were placed earlier in that list. He submitted the objections, which had not been finalised and in due course the promotions have been made to the post of Tehsildar. The respondents No.2 to 7 are junior to the appellant as per his contention. The appellant claimed that he should have been appointed as Naib Tehsildar on 25-3-1975, in the Revenue Department, but with mala fide intentions of the Revenue Commissioner, he recommended the case of the appellant, for appointment,in the Relief staff, vide his letter No.76 dated 3.3.1975 and got him adjusted as Relief Inspector. The appellant stated that through another letter dated 3-3-1975, Salimullah Khan was adjusted in the Rural Development Programme. His seniority has been determined with reference to the date of appointment in that department i.e., 3-3-1975, whereas the appellant's seniority has not been determined, with effect from the date of appointment as Relief Inspector, although it has been dtermined with effect from 13-10-1975, when appointed as Naib Tehsildar. It was also contended that he was not heard before the passing of order dated 8-3-1985. The appellant further pleaded that he was met with discriminatory treatment, in the matter of seniority.
2. The respondent's counsel Mr. Abdul Rashad Abbasi raised the following objections:-
(a) The appeal is jjme barred.
(b) No appeal was preferred before the departmental authority, within the prescribed time, therefore, the appeal is not competent.
(c) The appellant had no right of challenging the promotion of respondent No.7 because he was promoted from the lower staff, while the appellant was a direct candidate.
(d) An appeal in the matter of promotion on the basis of recommendation of Selection Board is not maintainable.
(e) Chaudhry Mohammad Iqbal has not been impleaded as party.
(f) The candidature list, relied upon by the appellant, is not authentic, nor it has any legal value.
3. On facts, it was pleaded that respondent No.7 was approved as candidate in 1957 and even appointed as-Naib Tehsildar on 11-1-1958, therefore, no attack can be launched against his seniority, or promotion. The respondent No.7 was appointed as Naib Tehsildar on 5-5-1975, whereas, the appellant was appointed as such, on 13-10-1975 therefore, the appellant is junior to the respondent No.7. In the matter of respondent No.5, it was pleaded that he was selected as a candidate for the post of Naib Tehsildar on 1-3-1973 and completed the training on 3-3-1974. The appellant is junior to the respondent No.5, in view of the latter's appointment, having been made on 3-3-1975, earlier than the appellant. In the matter of respondent No.3, again it was contended that the appellant is junior because he was appointed as Naib Tehsildar on 5-3-1975, almost 7 months earlier than the appellant.
4. Chaudhry Qurban Hussain respondent No.4, who himself argued his case, stated that his candidature was approved on 22-2-1973, whereas the appellant was approved as candidate on 8- 3-1975 The respondent was appointed as Relief Inspector on 11-6-1974, whereas the appellant was appointed as Relief Inspector on 25-3-1975. He was appointed as Naib Tehsildar on 3-3-1975, while the appellant got the appointment as Naib Tehsildar on 13-10-1975. In view of the approval as candidate, the appointment as Relief Inspector and the appointment as Naib Tehsildar, the appellant is junior to the respondent No.4.
5. Sardar Rafiq Mahmood, Advocate for respondents No.6 argued that respondent No.6 was appointed as Naib Tehsildar on 18-3-1975, almost 7 months, earlier than the appellant, therefore, the respondent is in no way junior to the appellant. He also attacked the competency of appeal, as well as pleaded the limitation. It was further argued that no facts regarding the approval of candidature were brought to light by the appellant, in the matter of respondent No.6, therefore, no finding could be given on this point, in absence of the pleadings or any proof. Chaudhry Mohammad Hussain Advocate forth respondents No.1 and 8 was not present on the date, the case was argued but he had submitted the written statement, which has been considered by us. Mr. Nazir Shah appeared for respondents on behalf of Mr. Mohammad Hussain. He was also heard.
6. We have considered the arguments of the learned counsels for the parties an persued the record. It appears that the impugned order was a passed on 25-4-1984. The copy of the review petition, appended with the memorandum of appeal, by the appellant shows that his review petition, submitted to the Government was dated 14-8-1984. The Government order dated 8-1-1985 also indicates the date of review petition as 14-8-1984. The original order was passed on 25-4-1984.
In view of the period, prescribed for a review petition, the petition submitted by the appellant to the Govrnment was time barred. We have already held in a number of cases on the basis of a host of cases law from Pakistan that in case of failure of a civil servant, in seeking remedy before the departmental authority, within prescribed time, his appeal before the Tribunal becomes incompetent. For this reason, the appeal of the appellant before the Tribunal is not competent.
7. We have also observed that a tentative seniority list was circulated, by the Commissioner, vide No.9155 dated 19-11-1979, wherein the names of respondents No.2 to 7 namely; Salimullah, Fazal Rehman, Qurban Hussain, Abdul Qayyum, Mohammad Sadiq Khan, and Gul Nawaz Khan have been respectively shown at S.No.4,5,6,7,8,& 11, whereas the name of the appellant stands at S.No.17.
The appellant submitted the objections to the seniority list, and copy of the objections has been placed on record, by him, Perusal of the objections shows that he had not disputed the seniority of the respondents No.3 to 7, before the departmental authority. He disputed the seniority of the persons at No. 11 to 16. In paragraph 5, of the objections, it was contended by the appellant that Salimullah shown at S.No.4 of the seniority list was junior to him because he was junior as a candiate and that he had completed the training 6 months after the appellant. It was further stated that the appellant did not get information of the appointment of this candidate and prayed for the setting aside of order of respondent No.2 in the objections, submitted against the seniority.
In view of the conduct of the appellant, in relation to respondents No.3 to 7, he is stopped from calling in question the seniority as well as the promotion of respondent No.3 to 7, before the Tribunal, at the appellate stage.
8. The appellant has given no facts and figures about the date of candidature of any of the respondents, therefore, his plea that he was approved for the post of Naib Tehsildar earlier than the respondents is not substantiated. The list of candidature appended with the grounds of appeal is not an authentic document. It purports to have been prepared by the Settlement Officer Kotli, who was not the competent authority, moreover, it is only a photostat copy. It does not indicate the date of the approval of any candidate. Simply, the serial number does not serve the purpose. On the other hand, the seniority number have been given, opposite to the names of the candidates.
The appellant is shown as on No.40, in the seniority, but for the reasons indicated herein before, it carries no evidentiary value. The particulars of Ch. Qurban Hussain have been already indicated in an earlier paragraph of this judgement,, which shows that the appellant cannot have precedence over him, on the score of candidature, the appointment as Relief Inspector or the appointment as Naib Tehsildar. The appellant made no attempt to establish his seniority, over the other respondents, at any stage than the submissions of objections, against the seniority list. His grievance, against the appointment of any of the respondent as Naib Tehsildar cannot be considered at this stage. It is also useless to solicit before this Tribunal that the appointment of the appellant, in the relief staff made vide order dated 25-3-1975 on the recommendations of the Commissioner dated 3-3- 1975 was mala fide. If he had any grievance, against the orders of his appointment, in the Relief staff, he should have sought the remedy at the appropriate stage. He could have also approached for remedy for his appointment, in the Revenue Department, instead of relief staff and could also question the appointments of those appointed in that department, on 3- 3-1975. Raising these questions at this stage, being after thought do not make out a case in his favour. His case against Salimullah is not proved because no order of appointment or approval as candidate in respect of this officer was placed on record, nor the particulars were given, in the pleadings. The case against other respondents is also not established, for the appellant's failure in furnishing the required particulars in the pleading, which could go to support his case. The surmises and conjuctures do not prove the seniority.
9. An order has been placed on record to show that the post of Relief Inspector was equivalent to that of Naib Tehsildar. This order purports to have been issued by the Relief Commissioner. The office of Relief Commissioner has no concern with the administration of Revenue Department and he has no authority to declare any post on his strength as equivalent to the post, in any other department. Even otherwise, any authority below, the level of Government is not competent to constitute the cadre or declare a post in one cadre as equivalent to a post in any other cadre for any purpose what so ever. The service of one department or organization cannot be considered for the purpose of determination of seniority in any other department, therefore, any order aimed at the achieving of the aforesaid purpose is also illegal and ultravires if passed by any authority other than the Government.
10. For the foregoing reasons, there is no merit in this appeal and the same is dismissed, without any order as to the costs.
K.L.R 1989 Labour & Service [Lahore] Present: Falak Sher and Raja Afrasiab Khan, JJ.
ZILLA COUNCIL SARGODHA Versus PUNJAB LABOUR APPELLATE TRIBUNAL ETC Writ Petition No.4734 of 1988, decided on 30th January, 1989 Constitution of Pakistan 1973 -Art.199- Respondents employed by Petitioner as Mates and Beldars-Govt issuing notification that employees of autonomous bodies be made regular- Petitioner proceeding to regularise the services of respondents w.e.f. 1.7.1984-Their grievance that they should be regularised w.e.f. 1.7.1973- The Punjab Labour Court accepting the same-Even Appellate Tribunal affirming such findings-The same challenged by the Petitioner-The principal argument bgeing that the respondents were barred by limitation and that no right accrued to the respondents had been infringed-Conversely respondents submitting that their grievance petitions were within time and that there was a finding of fact arrived at by the two competent Tribunals and no law point was involved threrin-Appellate Tribunal holding that under the Standing Order No.1 of Standing Orders 1968 the employees who complete their probationary period satisfactorily for a period of three months and serving against their posts are admitted to the permanent employees-The findings given by the two Tribunals below are up-held-Further held that substantial justice having been done by the two Tribunals below in granting relief to the deserving respondents these are not fit cases in which interference is called for-There being no substance in the petitions the same dismissed *\ (Paras,2 3)
For the petitioner: Ch.Yawar All Khan, Advocate.
For the Respondent: H.R.Haidar, Advocate.
Date of hearing: 6th November, 1988.
Rqja Afrasiab Khan, J.- The petitioner, Zila Council Sargodha, has moved these two Constitutional petitions (W.P. No. 4734 of 1988 and W.P. No.4735 of 1983) praying therein that the orders dated 7.6.1988 and 6.4.1988 passed by the respondents No.1 and 2 respectively, may be declared wothout lawful authority and of no legal consequence. As the common questions of law and facts have arisen in both these writ petitions, as such, I propose to dispose of these matters together by this consolidated judgment.
2. Briefly, the facts are that the respondents in both the writ petitions were employed by the petitioners as Mates and Beldars. The Government issued notification on the subject that employees of autonomous bodies should be made regular. The petitioner in obedience to the above said notification proceeded to regularize the services of the respendents w.e.f. 1.7.1984 vide Annexure 'A'. The respondents in both the petitions instituted grievance petitions before the Punjab Labour Court No.5, Sargodha praying that they should be regularized w.e.f. 1.7.1973. The grievance petition of the respondents was contested by the petitioner on the ground that the same was barred by limitation and that on merits too no case was made out. The Punjab Labour Court accepted the grievance petition of the respondents on 6.4.1988 vide Annexure 'B'. Feeling dissatisfied with the order of the learned Labour Court the petitioner assailed the same by filing an appeal which was heard and dismissed by the Punjab Labour Appellate Tribunal on 7.4.1988 vide Annexure 'D'. The learned Appellate Tribunal affirmed the findings given by the learned Labour Court.
3. The principal argument of the learned counsel is that grievance petitions of the respondents were barred by limitation and that the impugned order was passed on 11.7.1984 and the same was challenged in the year. 1987. Thus, the learned counsel submits that there was no justification for the two Tribunals below to interfere in the matter. It is next argued by the learned counsel that no right accrued to the respondents has been infringed. The learned counsel appearing on behalf of the respondents submitted that their grievance petitions were within time and that there is a finding of fact arrived at by the two competent Tribunals and no law point was involved in the case and as such the petitions deserve dismissal.
4. I have heard the learned counsel for the parties and have perused the record. The learned Punjab Labour Court No.5, Sargodha as well as the learned Appellate Tribunal considered the evidence available on recorde and both of them have come to the conclusion that the grievance petitions of the respondents were within time and accordingly, they decided the cases in accordance with law. The learned Labour Court observed that in Government's letter No.SO- 4(g)-72 dated 9.8.1972, the Pay Revision Rules applicable to the non-gazetted civil servants of the Government of Punjab were made applicable to the employees of the Local Bodies w.e.f. 1.7.1972.
The learned Labour Court also observed that resolution No.140 of the District Council Sargodha (Ex.P5) was adopted by the Council on 20.6.1982 under which resolution the Mates and Beldars were decided to be regularized w.e.f. 1.7.1973. It is, therefore, clear that unde the above resolution No.140, the respondents earned their right of being regularized w.e.f. 1.7.1973. Thus, the subsequent resolution No.50 dated 26.6.1984 could not take away the right already accrued to the respondents.
The contention is that Government had also made the provision of Pay Revision Rules, 1972 of the non-gazetted Government Servants applicable to the employees of the Local Bodies of the Punjab w.e.f. 1.7.1973. The learned Labour Court has clearly held that the District Council, Sargodha vide its resolution No.140 dated 20.6.1982 (Ex.P5) decided to regularize the respondents Mates and Beldars w.e.f. 1.7.1973 and that after doing so, the same Council could not adopt another resolution No.50 dated 20.6.1984 (Ex.R/1) because such powers could only be exercised by the Provincial Government under the provisions contained in section 156 of the Punjab Local Government Ordinance, 1979. Thus, the learned Labour Court after discussing the entire evidence available on record came to the conclusion that the respondents were made regular in accordance with law.
They were given the benefit of Pay Revision Rules, 1972 in line with the non-gazetted civil servants of the Government of Punjab from 1.7.1973. This view was affirmed by the learned Appellate Tribunal vide its judgment dated 7.6.1988. The learned Appellate Tribunal observed that under Standing Order No.1 of Standing Orders Ordinance, 1968, the employees who complete their probationary period satisfactorily for a period of three months and are serving against their posts, are admitted to be permanent employees and theirservices shall stand confirmed automatically. The finding is that the respondents Mates and Beldars have been serving under the petitioner since long against their posts and as such they have automatically, by the operation of law, obtained the status of permanent employees. I do not find any substance in the contention of the learned counsel for the petitioner and I proceed to uphold the findings given by the two Tribunals below. The learned counsel has failed to show that the grievance petitions of the respondents were barfed by limitation. He has failed to point out as to what was the date on which the order regarding regularization of cvices of the respondents was passed and that what is the date on which intimation thereof was conveyed to them. Thus, in this situation, there is no material whatsoever on record under which it could be held that the grievance petitions of the respondents were barred by limitation. I am in agreement with the findings arrived at by the two Tribunals that the grievance petitions of the respondents were within time. The learned counsel for the petitioner has failed to point out any legal flaws in the impugned judgments. It appears that substantial justice has been done by the two Tribunals below in granting relief to the deserving respondents as warranted by law. These are not fit cases in which interference is called for. There is no substance in the writ petitions which are accordingly dismissed leaving the parties to bear their own costs.
K.L.R 1989 Labour & Service [Abbottabad] Present: Malik Muhammad Parvez Khan, Chairman and Sahib Zada Muhammad Farioon Member ABDUR RAHIM Versus SECRETARY TO GOVERNMENT OF NWFP EDUCATION DEPARTMENT PESHAWAR Appeal No.133 of 1988, decided on 22nd February, 1989 (a). North West Frontier Province Civil Servants Act 1973 -S.21-- Case of move over from BPS 17 to BPS-18-As Lecturer-Appellant not considered suitable for such move-over-Appellant apprehending adverse ACR for the year 1983Approaching the authority for the expunction of the same-The adverse remarks set aside-Still move-over not allowed due to his unsatisfactory record of service- Even his appeal to the authority thereagainst rejected (Paras, 12)
(b). North West Frontier Province Service Tribunals Act 1974 -S.4-- The order deferring move-over challenged by the appellant-His contention being that he had been serving the Eductation Deptt from 1973 and was entitled to the benefits of move-over as he fulfilled the requisite qualifications-However, respondent refuting the claim-The ground therefor being that the Tribunal had got no jurisdiction-Appeal was not competent- The same being bad for non-joinder of necessary party-The Selection Board's decision being final-The same could not be challenged-Held that The-Selection Board cannot be made the subject matter of appeal before the Tribunal-Appeal-Further held: Fails and is dismissed (Paras, 3 4 & 5)
For the Appellant: Mehboob Ahmad Shah, Advocate.
For the Respondent: Special Govt. Pleader.
Date of hearing: 22nd February, 1989.
Malik Muhammad Parvez Khan, Chairman* Appellant preferred the present appeal against respondent's order for not granting the move-over to him from BPS-17 to BPS-18 with effect from 1.12.1984.
2. According to him he is serving as Lecturer in Economics in the Education Department since 1.11.1973 and was entitled to the move-over to the next higher grade since 1.12.1984. His case was forwarded to the concerned quarter which was sent back on 31.3.85 with the endorsement that he is not considered suitable for move-over. There was no ground given for un-suitability of the appellant to earn the move-over, therefore, he under the apprehension of adverse ACR for the year, 1983 approached the authority for the expunction of the same because he had got bad relations with the Reporting Officer which resulted in an enquiry against his Immediate Officer and the adverse remarks effecting the move-over were set aside in toto while his case was again submitted for the grant of move-over. However the same was deferred with the remarks dated 4.4.1987 that he should earn one more report. After the writing of ACR again his case was put before the concerned forum but to his entire dis-satisfaction he received the order dated 9.3.1988 that he was not considered suitable due to his un-satisfactory record of service. According to him his case of move-over was thorughly examined and deferred vide previous order and the impugned order was illegal, ultra vires, contrary to the earlier orders, hence not maintainable. His appeal to the authority was rejected on 21.8.88; hence the present appeal.
3. Respondents refuted the claim of the appellant on the grounds that this Court has got no jurisdiction, that the appeal is not competent and the same is bad for non-joinder of necessary party. It was further admitted that the remarks for the year, 1983 were expunged and the entires were converted into average except in column 3 of Part-II and colums 4 and l2 of Part-Ill. The decision of the Selection Board is final and cannot be challenged.
Learned counsel for the appellant argued that appellant had been serving in the Education Department from 1973 and after the introduction of the scheme of move-over, he became entitled to the benefits as he fulfilled the requisite qualifications. His adverse ACR was expunged and in the light of the order of the respondent Government he was entitiled to the grant of move-over.
4. On the other hand learned Special Govt. Pleader argued that findings of the Selection Board cannot be challenged before this forum and since the appellant did not qualify the requisite qualifications for the grant of move-over, his case was not considered for the same.
5. We have gone through the record of the case with the assistance of the parties. Under the rules invogue the provincial Selection Board is empowered to grant the appellant move-over in the light of the record subject to the approval of the authortiy i.e. The Chief Minister. In the present case we have examined the record thorougly but were unable to find out the approval or rejection of the case of the appellant by the authority. What we were told at the bar by the representative of the respondent was that the cases which are not approved by the Provincial Selection Board are not sent to the authority for approval. This practice is not legal and proper because the authority i.e. The Chief Minister under the rules is to approve or reject the case of a Government Servant. Such like boards are constituted only to facilitate the work of the authority, who being the Chief Executive of the Province is always busy in another governmental and political activities relating to his job.
However this is a fact that this case was not sent to the authority and the recommendations of the Selection Board cannot be made the subject matter of appeal before this Tribunal. This being the position, the appeal fails which is hereby dismissed, leaving the parties to bear their own costs and the file be consigned to the record room.
K.L.R 1989 Labour & Services [Lahore] Present: Lehrasap Khan, J ARFUAT TEXTILE FACTORY Versus THE REGISTRAR OF TRADE UNION Writ Petition No. 2569 of 1988, decided on 22nd February, 1989
(a) . Industrial Relations Ordinance, 1969 -S.22-A (8)(d)-Trade Union for 17 Silk Industries Kamoke-Gujranwala- Respondent No.2- Registration of by the Registrar Trade Unions- Respondent No.1- Even Registration Certificate issued therefor (Para, 1)
(b) . Constitution of Pakistan 1973- -Art.199- Petitioner agitating against such registration-Contending that such an industry wise trade union could only be registered by the National Industrial Relations Commission-Respondent No.1 appointed as local Registrar lacked Jurisdiction therein- Further contended that this Trade Union has no membership in any other Province-As also S.22-A(ll) of the Ordinance providing that no Registrar, Labour Court or Tribunal shall take any action or entertain any application or proceedings in respect of any matter which falls within the Jurisdiction of the National Industrial Relations Commission- Held that: Such contention when analysed in minor details appears to be devoid of any merit-Further held: That respondent No.2 cannot be termed as industry-wise trade union -The same can lawfully be registered by the Zonal Registrar inexercise of power u/S 8 of the IRO 1969-Petiti+on dismissed.
(Paras, 2 5 & 8)
For the Petitioner: Athur-Rehman Sheikh, Advocate.
For the Respondent: Zaeemul Farooq, A.A.G and Ch.Mohammad Abdulla, Advocate.
Date of hearing; 22nd February, 1989
LEHRASAP KHANJ.-.This writ petition assails the order dated 263.88 of the Registrar, Trade Unions, GuJranwala viz respondent No i, whereby he has registered respondent No.2 i.e. Workers Union, Silk Industry, Kamoke, as a trade union for 17 Silk Industries, details whereof have been recorded at the back of the Registration Certificate issued pursuant to the impugned order.
2. It has been mainly contended that respondent No 2 has been registered as an industry-wise trade union for many silk industries and under Section 22-A (8)(d) of the Industrial Relations Ordinance, 1969, such an industry-wise trade union could only be registered by the National Industrial Relations Commission and thus respondent No 1, the local Registrar of trade unions appointed by the Provincial Government, lacked jurisdiction in the matter.
3. Sub-section (8) of Section 22-A ibid enumerates the functions of the National Industrial Relations Commission. Clause (d) of sub-section (8) reads: "to register industry-wise trade unions, federations of such trade unions and federations at the national level;"
4. It has been explained in the explanation under section 22-A ibid that the expression industry- wise trade union, federation of such trade unions and federations at national level, referred to a trade union the Membership of which extends to establishments in more than one Province and a federation of trade unions whose membership extends to registered trade unions in more than one Province.
5. In the present case, as already stated, the membership of . Respondent No.1 extends only to 17 silk industries located at Kamoke District Gujranwala, in the Province of Punjab. This trade union has no membership in any other Province. This trade union, as per explanation under Section 22- A, is not a industry-wise trade union. In this view of the matter in regard to such a trade union National Industrial Relations Commission has not the exclusive jurisdiction re: registration. Reference has been invited on behalf of the petitioner to clause (a) of sub-section (8) of Section 22-A and to subsection (11) of the same section.Clause (a) provides that it shall be the function of the Commission to promote the formation of trade unions of Workers within the same industry whether in establishments within a Province or in more than one Province and federation of such trade unions. Subsection (11) of course provides that no Registrar, Labour Court or Tribunal shall take any action or entertain any application or proceedings in respect of any matter which falls within the jurisdiction of the National Industrial Relations Commission.
6. The contention raised on behalf of the petitioners, when analysed in minor details, appears to be devoid of any merit.Promotion of the formation of the trade union of workers is different from the registration of trade union of workers. By virtue of clause (a) of sub-section of Section 22-A Supra, it has been made the function of the Commission to promote the formation of trade unions within the same industry whether in establishment of a Province or in more than one Province, but regarding registration exclusive power has been given to National Industrial Relations Commission only in regard to industry-wise trade unions, federation of such trade unions and federation at national level Such type of trade unions and federation have been explained in the explanation under section 22-A and as per that explanation only that trade union falls within the ambit of expression industry-wise trade union whose membership extends to the establishment in more than one Province. It thus becomes evident that respondent No.2 cannot be termed as industry- wise trade union and this trade union can, therefore, lawfully be registered by the Zonal Registrar appointed by the Provincial Government in exercise of his powers under Section 8 of the Industrial Relations Ordinance, 1969. The writ petition has thus no merit and is accordingly dismissed, but there shall be no order as to costs.
K.L.R 1989 Labour & Service Cases [Karachi] Present: Justice Munawar Ali Khan, Chairman, DrA.Q.Qazi, Member-I and Dargahi. L. Mangi Member-II AIJAZ Hussain Kazi, Versus THE GOVT. OF SIND THROUGH THE CHIEF SECRETARY, SIND, KARACHI AND OTHERS Appeal No.2/1982,3/1982,. 4/1982,39/1982 and 40/1982, decided on 10th August, 1988.
Sind Service Tribunals Act, 1973 -S.4.-Section Offices-Govt of Sind-Determination of intense seniority of direct recruits viz-a-viz promotees-Seniority list-Impugning of-According to rule 10 of Sind Civil Servants (Probation, Confirmation and Seniority) Rules 1975-The same having direct bearing-Appellants as well as respondents entitled to seniority with reference to their regular appointment to the said cadre-The regular appointment in case of direct recruits to be reckoned from the dates of their initials appointment not from the date of their confirmation in the said parts-Period of probation preceding the comfirmation being part of regular service-Appellants arguing that the promotion of respondents could not be regularised in the quota of direct recruits-The same considered untenable-Held that: The appeals of direct recruits are allowed-These of others dismissed.
1985 SCMR 386, and, PLD 1970 SC 203.
(Paras, 5 23)
For the Appellant: Aijaz Hussain Kazi, Advocate.
For the Government: A.A.Muhammad Ali, A.A.G.
Date of hearing: 10th August, 1988.-
Justice (RTD) Munawar Ali Khan (Chairman)-This judgement will dispose of sue appeals : namely Apprtd No.2/1982 filed by Aijaz Hussain Kazi, Appeal No.3/1982 filed by Ghulam Sarwar Khero, Appeal No.4/1982 filed by Muhammad Yousuf Bhatti, Appeal No.5/1982 filed by Qadir Bux Shaikh, Appeal No.39/1982 filed by Syed Mahfooz Ali and Appeal No.40/1982 filed by Muhammad Yousuf Khan. All these appeals have arisen from the seniority list of Section Officers of Provincial Secretariat of Government of Sind, issued on 12.9.1981. The appellants' grievances is that they have not been assigned due place in the said seniority list. From the appellants, M/s. Syed Mahfooz Ali and Muhammad Yousuf Khan entered the cadre of Section Officers as promotees whereas the remaining for appellants were appointed in the said cadre by direct recruitment.
2. The case of direct recruits/appellants is more or less identical. Consequent upon their selection by the Public Service Commission, they were inducted in the posts of Section Officers by initial recruitment. The appellants Muhammad Yousaf Bhutti and Qadir Bux Shaikh assumed their office as Section Officers on 10.7.1972 and appellants Aijaz Hussain Kazi and Ghulam Sarwar Khero who were selected in the competitive examination held by Sind/Baluchistan Public Service Commission in 1972, were appointed as Section Officers by S&GAD's Notification No.5.O.V(S&GAD)- I-8/73, dated 6.11.1973. However by two notifications of same No.5&A (S&GAD)- 2(3)/71, dated 23.9.1972 and 7.11.1972 some Superintendents of defunct Government of West Pakistan and Sind Secretariat were promoted as Section Officers purely on temporary and adhoc basis until the availability of direct recruits. Their promotion was subsequently regularized by notification No.5.O.V(S&GAD) 2-3/71, dated 83.1974 retrospectively from the dates mentioned against their names in the said notification. The contention of the appellants was that such regularization of the respondents adhoc promotions was in contravention of the law and rules and hence illegal and inoperative and therefore they could not be shown as senior to them in the impugned seniority list.
On the basis of this plea the appellant Aijaz Hussain claimed to be senior to respondents No.2 to 40 mentioned in the memo of his appeal. Similarly appellant Ghulam Sarwar Khero claimed seniority over respondents No.2 to 40. Again appellant Muhammad Yousuf Bhatti claimed to be placed above respondents No.2 to 22 and appellant Qadir Bux claimed to be shown senior to respondents No.2 to 27. Accordingly being aggrieved by the impugned seniority list they preferred departmental appeals to the Chief Minister/MLA Zone 'C' and as no decision was taken by the said appellate authority within 90 days, they have come in the present appeals.
3. The case of promotee/appellant, Syed Mahfooz Ali is that he joined Government Service as senior scale stenographer on 6.11.1954 and was promoted as Superintendent on 2.4.1974. Subsequently by notification No.5.O.X(S&GAD)l-8/83, dated 27.9.1975 he along with the 11 other persons, was promoted as Section Officer on regular basis though temporarily until availability of direct recruits.
Despite this he was shown at S.No.125, as junior to the respondents (mentioned in the memo of his appeal) in the provisional seniority list of Section Officer issued on 20.1.1981. He challaned the said seniority list but he was neither heard nor was any order was passed on his representation/objectiOns. Ultimately final seniority list was issued on 12.9.1981 in which his name was wrongly placed at S.No.97, on basis of regularization of his promotion on 17.4.1978, though he was actually promoted on regular basis on 27.9.1975 as stated above. Accordingly the appellant preferred departmental appeal but the same was rejected vide letter dated 17.4.1982 communicated to him by respondent No.2. The appellant therefore filed the present appeal claiming seniority over respondents No.3 to 76.
4. The case of the appellant Muhammad Yousuf Khan is that he was promoted from his substantive post of Superintendent to that of Section Officer on 27.3.1974. Subsequent to his promotion several persons were appointed as Section Officers by direct recruitment. Though they were junior to him, they have been placed above the appellant in the impugned seniority list. The appellant claims to be placed at serial No.45 instead of serial No.73 in the said seniority list. As such he preferred departmental Appeal on 8.10.1981 but the same was rejected. He was informed about the rejection of his appeal by the order N0.S.O.X (S&GAD)3-(313)/79, dated 17.4.1982. Thereafter he has filed the present appeal.
5. The last two appeals (Appeal No.39/1982 and appeal No.40/1982) were allowed by the Services Tribunal mainly on some concessions made by the then Assistant Advocate General vide two separate judgments dated 21st March, 1983 and 22nd March, 1983 respectively. The said judgements were however challaned in Supreme Court which by its judgment dated 3rd September, 1985 disposed both the appeals by consent and remanded the cases back to the Service Tribunal for decision on merits.
6. We heard the arguments of the parties and their counsel at great length. We also minutely examined the documents produced in all the appeals.
7. It would appear that the appellants are not satisfied with the seniority position assigned to them in the impuged seniority list. In order to rcslovc their dispute with regard to seniority it would be pertinent to refer to the relevant law and rules. No doubt the impugned seniority list published on 12th September, 1981 was drawn up and issued in accordance with the Sind Civil Servants (Probation, Confirmation and Seniority) Rules, 1975 (hereinafter referred to as Seniority Rules, 1975), These rules came into force with effect from 2nd October, 1975. Rule 10 of the Seniority Rules 1975, which has a great bearing on the appellant's cases, is couched in the following words;
(1) Subject to the provision of rule 11, the seniority of a civil servant shall be reckoned from the dale of his regular appointment.
(2) No appointment made on adhoc basis shall be regularized retrospectively."
8. Keeping in view the requirements of the above rule, correct seniority position to which the appellants as well as respondents would be entitled in the cadre of section officers, can only be determined by reference to the date of their regular appointment to the said cadre. In other words it has to be seen on what dates they entered the cadre by way of regular appointment. "Regular appointment" has been mentioned in contradistinction of "Adhoc Appointment" in the Sind Civil Servants Act 1973 (hereinafter referred to as the said Act). It is applicable to the parties in as much as it regulates their terms and conditions of service. As defined in clause (a) of sub-section (1) of Section 2 of the said Act, "Adhoc appointment" means an appointment made otherwise than in accordance with the prescribed method of recruitment. Conversely if an appointment is made in accordance with the prescribed method, it would obviously become a regular appointment.
9. The next question that arises for our consideration is as to what was the prescribed method of recruitment when the appellants as well as respondents entered the Section Officerss' cadre and whether that method was followed in their appointments. So far direct recruit/appellants are concerned, they are all selectees of the Public Service Commission. At the time of their selection as well as their induction in the posts of Section Officers, the said Act or the rules framed thereunder had not come into force but West Pakistan Secretariat (Section Officers)
Service Rules 1962 (hereinafter referred to as the 1962-Rules) still occupied the field. Rule 5(1) of these rules which is relevant here reads as under; "5. Method of recruitment -(1) Recruitment to the sevivc shall be made as follows.
(a) Fifty percent of the v ancics shall be filled by initial recruitment on basis of the result of the competitive examination held by the Commission.
(b) The remaining fifty percent of the vacancies shall be filled by selection on merit with due regard to seniority from among the Superintendents of the West Pakistan Secretariat (Ministerial)
Service, or if no such Superintendents are considered suitable for appointment to the service from among Assistant of the West Pakistan Secretariat (Ministerial) Service."
10. It is clear from the above rule that prescribed method of recruitment in case of initial appointment was the result of competitive examination held by the Public Service Commission.
Since that method was followed in case of Direct recruits/appcllanls, their appointment to the post of Section Officers was regular appointment. Consequently their seniority in the Section Officers cadre was to be reckoned from the dates of their initial appointment. The argument that they should count their seniority from the date of their confirmation in the said posts was not only mis- conceivcd but also erroneous as it was not based on any provision of law or rules. On the contrary sub-section (3) of Section 8 of the said Act provides that "seniority on initial appointment to a service, grade or post shall be determined as may be prescribed". As pointed out above, rule 10 of Seniority Rules 1975 prescribes that seniority of a civil servant is to be reckoned from the dale of his regular appointment. The period of probation that procedcs the confirmation of a civil servant is a part of his regular service becuasc he is invariably confirmed right from the date of his appointment. In any case the period of probation does not fall within the definition of adhoc appointment so that it should be excluded for determining the dale of his regular appointment having arrived at this conclusion we hold that the appellants Aijaz Hussain Kazi and Ghulam Sarwar Khero entered the cadre of Section Officers on 6th November, 1973 and appellants Muhammad Yousuf Bhatti and Kadir Bux Shaikh entered the said cadre on 10th July, 1972 by way of regular appointment and as such their seniority in the Section Officers' cadre would be reckoned from the said dales. All these section Officers who were appointed after the above dales would be junior to the said appellants.
11. The above for appellants have claimed to be senior to the promotee/respondents as mentioned by them in their respective memos of appeals. Most of the said respondents have been dropped by the appellants, as they have either retired, died or left the cadre otherwise, leaving respondents'
Aziz Rehman, Ansar Ahmad Khan, Hidayatullah Memon, M.A.Khan, Habib Ahmad, SAbbas Raza Zaidi, Mushtaq Ahmad Afridi Mirza Anwar Baig, Rafiquddin Momin and Abdul Aziz who are said to be still in service. The aforesaid respondents were promoted as section officers by two Nofifications; one dated 23.9.1972 and another dated 7th November, 1972.
However the names of Aziz Rahman and Abbas Raza Zaidi do not transpire in these notifications but it is not denied that like other respondents they too were promoted on adhoc basis and subsequently their promotion was regularized retrospectively. On perusal of the above notifications it would appear that promotions mentioned therein were made purely on temporary and adhoc basis pending the finalization of their cases of promotions as Superintendents. It was further made clear in the said notifications that the promotees would not claim seniority over their seniors who were not considered for appointment earlier or might be appointed thereafter and that their promotions were only a stop-gap- arrangement and they were liable to be reverted to their own substantive rank on determination of seniority or when the direct recruits or officers of other services were available for appointment as Section Officers. Their promotions were however, regularised by subsequent notification No.5.O.V(S&GAD)-2-3/71, dated 8th March, 1974 retrospectively from the dates mentioned against their names. l2. The appellants and their learned counsel attacked the regularization of adhoc promotions of the aforesaid respondents mainly on two grounds; first, that retrospective regularization of adhoc appointments was not permissible under the rules and second, that the said respondents were admittedly promoted against the posts reserved for direct recruits, and as such their promotions could not be regularized in the quota of direct recruits. In support of their arguments, they placed reliance on Supreme Court authority reported as Federation of Pakistan VsAzam Ali and others (1985 S.C.M.R. 386). On the other hand it was submitted on behalf of the respondents that when regularization of respondents' promotions was made, the Sind Civil Servants (Appointment, Promotion and Transfer) Rules 1974 (hereinafter referred to as the 1974-Rules) as well as Seniority Rules 1975 were nowhere in sight. Further submission on their behalf was that there was no bar on retrospective regularization of adhoc appointment under the 1962- Rules which were actually in force at the time of respondents' adhoc promotions and the regularization thereof. It was also stressed on the respondents' behalf that the regularization was made with the approval of the Chief Minister, who besides being rule-making authority, was designated as Government in the 1973-Constitution. Accordingly in their view even if the r trospective regularization suffered from any defect, such defect stood cared. As for the argument that respondents' promotions could not be regularized in the posts reserved for the direct recruits, the respondents' reaction was that for the purpose of determining seniority such argument was untenable. In this connection reference was made to the Supreme Court authority reported as Khushi Muhammad and three others-Vs. General Manager PWR (PLD 1970 S.C. 203).
13. We have given our due consideration to the arguments of both sides and have also perused the authorities relied upon by the parties. There was no controversy on the point that the aforesaid respondents were first promoted as Section Officers on adhoc basis. The bone of contention between the parties was whether their adhoc promotion could or could not be regularized retrospectively. As stated above the regularization of their promotions was made by notification dated 8th March, 1974, It is true that by that date the Seniority Rules of 1975 which were promulgated on 2.10.1975 had not come into force. Similarly 1974-Rules were enforced on 28.3.1974 i.e. 20 days after the above notification of regularization was issued. Nevertheless, the said Act had already come into being as it was published on 5th December, 1973. As provided in sub-section (4) of Section 8 of the said Act: "seniority, in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade. " The word "regular appointment" used in this sub-section is an appointment other than" adhoc appointment" as defined in Section 2 (1) (a) of the said Act. Obviously both appointments can not be made on the one and the same date. In our opinion the intention of the sub-section (4) hereinabove appears to be that the date of regular appointment is the date on which such appointment is made or adhoc appointment is regularized. Keeping in view the definition of adhoc appointment we find that appointment made on adhoc basis can convert into regular appointment only after due compliance of the prescribed procedure. As stated above the 1974-Rules which prescribed the procedure for appointment by promotion had not been enforced by the date the respondents' regularization of adhoc promotion was made. In such a situation resort had to be made to sub- section (2) of section 26 of the said Act which reads as under.
"(2) Any rules, order or instructions in respect of any terms and conditions of service of Civil Servants duly made or issued by an authority, competent to make them and in force immediately before the commencement of this Act shall, in so far such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
14. Accordingly 1962-Rules would be deemed to be alive for the purpose of regularising the adhoc promotions of the respondent. As provided in clause (b) of sub-rule (1) of rule 5 of these Rules reproduced above, fifty precent of the vacancies shall be filled by selection on merit with due regard to seniority from among the Superintendents. For selecting suitable Superintendents (non- Gazetted post) for promotion as Section Officers (Gazetted post) consultation with Public Service Commission was mandatory vide regulation 4(1) of the West Pakistan Public Service Commission (Limitation of Functions) Regulations 1957 (hereinafter referred to as the said Regulations).
As is clear from the "Summary for the Chief Minister" fleated by the then Chief Secretary on 12.11.1973, reference was actually made to the Public Service Commission in this regard. Before the final advice of the Commission could become available, the Constitution of 1973 was promulgated and under the said Constitution, a new law relating to Public Service Commissions known as Sind Public Service Commission Ordinance 1973 came into being. As no rules were framed under the latter Ordinance providing for consultation with the Commission as regards promotion of secretariat Superintendents as Section Officers such promotions could be regularized without referring the case to the Commission. Consequently as the said Summary further shows, the regularization was made with the approval of the Chief Minister. It is clear from the Summary that the Chief Minister gave his approval on 3.4.1974. It is not understood how the notification of regularization was issued earlier on 8.3.1974. It seems to us that while signing the order of regularization, the Chief Minister put the date 3.4.1974 instead of 3.3.1974 through oversight. In these cirmstances the Summary should have been resubmitted to the Chief Minister for rectification of the date. However, the S&GAD instead issued the notification dated 8th March, 1974 based on the said approval of the Chief Minister dated 3.4.1974. Obviously the approval given on the later date can not be reflected in the notification of the earlier date. Therefore we are of the view that the date of approval was 3.3.1974 and not 3.4.1974. Accordinlgy the adhoc promotions of the respondents stood regularized on 3.3.1974.
15. Of course the 1962-Rules are silent as regards the retrospective regularization of adhoc appointment. But as discussed above, in the light of different provisions of the said Act the date of regular appointment can not be the same as that of adhoc appointment. Particularly the date of "regular appointment" mentioned in the sub-section (4) of the Section 8 of the said Act, in our opinion, can not be the date other than that on which regular appointment was actually made. It is true that retrospectivity given to the respondents' regular promotions had the approval of the Chief Minister who was not only rule-making authority but also Government within the meaning of the unamended Article 129 of the Constitution of 1973. However this does not mean that the Chief Minister was armed with power even to override the Provisions of Law of Legislature. Since subsection (4) of Section 8 of the Sind Civil Servants Act 1973 which is a law of Legislature requires seniority of promotee to be reckoned from the date of regular appointment which can not be other than that on which such appoinment was made, the Chief Minister can not pass order repugnant to the said provision, giving retrospective effect to such appointment. From the above discussion we are convinced that seniority of promotee section officers would take effect from the date on which their adhoc promotions were actually regularized. As disclosed in the "Summary for the Chief Minister" referred to above, the Chief Minister approved the regularization of the respondents' adhoc promotions on 3.3.1974 (3.4.1974 obviously an oversight) and therefore their seniority in the cadre of section officers would be reckoned from the said date. As the Direct rccruit/appellants entered the said cadre on earlier date the latter would rank senior to the respondents mentioned above.
16. In view of the above findings, further arguments that the respondents' promotion on adhoc basis could not be regularized in the quota of posts reserved for direct recruits, would hardly be of any interest for the appellants as the argument now would have only academic value. Nevertheless we would like to have cursory glance at the efficacy of the argument. The explanatory note and the annextures attached therewith which have been filed by the learned Assistant Advocate General indicate the ratio in which the posfs of Section Officers were filled by promotees and direct recruits right from the break-up of One-Unit and coming into being of the new province of Sind. It would appear that on dissolution of One-Unit, 64 Section Officers were allocated to the Province of Sind. Out of them 51 Section Officers were already borne on the cadre of Section Officers and remaining 13 post holders were working on adhoc basis. Only 10 of the total number of Section Officers were direct recruits.
Again between 1.7.1970 and 23.10.1972 as many as 41 vacancies occurred from which 39 were filled by promotion on adhoc basis and the remaining 2 were given to direct recruits. It appears that 8 more vacancies occurred upto 7.11.1972 which all were filled by promotion on adhoc basis. In November, 1973, 13 selectees of Public Service Commission were appointed as Section Officers. The position of vacancies was again assessed up to 28.2.1973 and it was found that there were 60 vacancies out of which 44 were clear vacancies. In July, 1973 a list of Section 60 Officers was sent to the Public Service Commission for approval. Out of them 22 adhoc promotions including 13 adhoc Section Officers allocated from the defunct Province of West Pakistan against quota of promotees were required to be regularized. As pointed out above on coming into force of the Constitution of 1973 a new law relating to Public Service Commission was promulgated. But in absence of the rules framed under the Ordinance clarifying the Commission's powers as regards approval of promotion cases, the commission returned the aforesaid list of Section Officers without passing any order thereon. Thereafter 60 adhoc promotions of Sections Officers returned by the Commission were regularized with approval of the Chief Minister in March, 1974, as has been discussed in the foregoing paragraphs. Until such regularization, the posts of Section Officers were to be shared in the ratio of 50;50 as per 1962-Rules. But as is clear from the above appraisal, this ratio was not maintained as the Chief Minister gave his approval to regularization of adhoc promotions for in excess of the quota fixed for promotions. As provided in sub-section (1) of section 9 of the said Act, a civil servant possessing the prescribed qualification shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion. This position has been reiterated by the Supreme Court in the case of Azam Ali cited in foregoing paragraphs.
17. Therefore we have to see if the Chief Minister had power to regularize Promotions in excess of the ratio fixed in the 1962-Rules. By the date the regularization of adhoc promotions was ordered by the Chief Minister, the said Act had already been promulgated, though 1974-Rules which prescribed the method of recruitment had not yet been framed. However the Chief Minister who enjoyed the power of Govt, under unamended Article 129 of 1973-Constitution was a rule-making authority and hence was within his rights to change the ratio in which the posts of Section Officers were to be filled by direct recruits and promotees. The change brought about with his order had the effect of amending the rules to that extent. In this connection reference may be made to the Supreme Court authority reported as Province of West Pakistan-Vs-Din Muhammad (PLD 1964 Supreme Court 21) wherein it was held; "If an "order" is made by a competent authority which has the effect of amending previous rules, which are capable of being so amended, then the efficacy of such an "order" is not diminished merely because it does not in so many words specify that it is an "order" making a rule." We must look at the substance and not merely the form of the "order".
Thus the regularization of adhoc promotions with approval of the Chief Minister, in our opinion, did not violate the provisions of sub-section (1) of section 9 of the said Act and hence was perfectly inorder. But as has been held above such regualarization could not be allowed to take effect retrospectively.
18. Taking up the appeal of appellant Syed Mahfooz Ali, it is found that he was promoted as Section Officer by notification No.5.O.X (S&GAD)I-8/73, dated 27th September, 1975 along with eleven others. The learned counsel for the appellant argued that since the appellant was promoted on regular basis his seniority in the Section Officers cadre was to be reckoned from the date of the said notification. The argument was based on the recital in the notification, that Departmental Promotion Committee No.1, was consulted prior to the appellant's promotion as Section Officer.
According to the learned Counsel the words "on purely temporary basis" mentioned in the notification were redundant and had no bearing on the promotion of the appellant being regular.
19. On the other hand the learned Counsel for the respondents contended that since the promotion of the appellant was on temporary basis, his seniority could not be determined with that of permanent employees. Their further argument was that the appellant was not holding even the lower post of Superintendent on regular basis at the time of his promotion as Section Officer and therefore his promotion to higher post could not be regarded as regular promotion. In this connection our attention was drawn to the two notifications; one bearing No. E&A(S&GAD) 8(ll)/70, dated 2nd May, 1974 by which the appellant, Syed Mahfooz Ali along with 17 others were promoted to officiate as Superintendents in grade 16 purely on temporary and adhoc basis and second bearing No.5.O.X(S&GAD)-3- 264/78, dated 13th April, 1978 by which the adhoc promotions of the appellant and others as Superintendent (grade 16) was regularized. His name appears at serial No.22 in part I of the latter notification. The perusal of the above two notifications leaves us in no doubt that on 27th Septmber, 1975 on which the appellant was promoted as Section Officer obviously from the post of Superintendent he was holding the latter post only on adhoc basis. Of course there was no bar to promote the adhoc Superintendent to higher post of Section Officer, but such promotion could not be regarded as regular promotion. No doubt the Departmental Promotion Committee was consulted for appellant's promotion as Section Officer. But the choice of the Committee was limited to only these Superintendents who were not only duly qualified but also were eligible in all respects for promotion to the posts of Section Officers. Thus the Committee was required to consider only these Superintendents who, inter alia, were holders of the posts on regular basis. By clearing the Superintendent working on adhoc basis for regular promotion to higher post, the Committee had exceeded the power vested in it. However we fell that the Committee was perhaps conscious of the appellant's status at the time of clearing him for promotion for the post of Section Officer. That is why he was cleared by the Committee for purely temporary promotion. In any case since the appellant's promotion even to the lower post of Superintendent was regularised much later on 13th April, 1978, it was not possible to hold his promotion to higher post as Section Officer made about three years earlier on 27th September, 1975 as regular promotion. We were not shown any separate notification issued subsequently to the appellant's regular promotion as Superintendent notified in April, 1978, whereby the appellant's promotion as Section Officer was regularized against substative post. Nevertheless he was shown in the impugned seniority list to have entered the cadre of section officers with effect from 17th April, 1978, As stated above, the appellant's promotion to the post of Superintendent was regularized on 13.4.1978. We have already held that his promotion to the post of Section Officer prior to that date could not be made on regular basis, Accordingly since fresh notification was not issued with regard to his promotion to the post of Section Officer after regularization of his promotion as Superintendent we hold that he stood promoted on regular basis as Section Officer immediately on regularization of his promotion to the lower post of Superintendent. This is because he was already approved by the Departmental Promotion Committee and as such there was no need to refer his case to the said Committee again after regularization of his promotion as Superintendent. Consequently the date of his entry in the Section Officer's cadre would be 13th April, 1978 and not 17.4.1978.
20. The only argument for showing appellant's entry in the said cadre on 17.4.1978 was that the promotion of'appellant's colleague to the posts of Section Officers was regularized by notification No.5.O.X(S&GAD) 3- 237/77, dated 17.4.1978 but some how due to oversight the appellant's name was not included in the said notification. We have perused the notification dated 17.4.1978 carefully, but we find that this notification does not include any of the appellant's eleven colleagues who were promoted with him by notification dated 27.9.1975. Therefore the question of omission of the appellant's name from the said notification did not arise. Even otherwise if the omission was due to oversight it was necessary to issue written clarification. It has obviously not been issued. In absence of such corrigendum we can not agree that the appellant's date of entry in the section officer's cadre was 17.4.1978. Consequently as has been held above the seniority of the appellant in the Section Officer's cadre became effective from 13.4.1978. According to the appellant's own schedule attached to his memo of appeal all direct recruits appointed as Section Officers were admittedly appointed before the above date of regularization of his promotion as Section Officer, and as such they would all rank senior to him. So far promotee- Section Officers are concerned, these whose regular appointment to the posts of Section Officer took effect subsequent to the above date (13.4.1978) of regular appointment of appellant to the said post, would have to be shown junior to him in the impugned Seniority list.
21. Lastly we come to the case of appellant Muhammad Yousuf Khan who, in view of his pending superannuation in October, 1988, has apparently lost interest in the result of his appeal. Irrespective of what his feelings are we must examine the merits of his case and pronounce our verdict as in other connected cases. His grievance is also against the same seniority list of Section Officers which was published on 12th September, 1981. As is clear from the memo of his appeal his own admissions are; firstly that he was promoted to the post of Section Officer on 27.3.1974 (as per order filed by him as Annexure 'B') on purely temporary and adhoc basis pending finalization of the case of promotion of Superintendents and secondly that the promotion of the appellant was notified on regular basis with effect from 17.4.1978. This is borne out by the two notifications available on record, one bearing No.5.O.V(S&GAD)-2(3)/71, dated 27th March, 1974 and second bearing No.5.O.X(S&GAD)3-237/77, dated 17th April, 1978. In view of our findings in other connected appeals as discussed in the foregoing paragraphs, the seniority of the appellant in the Section Officers' cadre would be reckoned from 17th April, 1978, the date of his regular appointment to the said cadre, Accordingly all the Section Officers appointed by direct recruitment in the year, 1975,1976 and 1977 would rank Senior to him. Even the promotee Section Offiers if any, whose date of entry on regular basis in the said cadre was earlier than 17th April, 1978 would be treated as senior to the appellant.
23. As a result of above discussion the appeals of Direct Recruit appellants namely Aijaz Hussain Qazi, Ghulam Sarwar Khero, Muhammad Yousuf Bhatti and Qadir Bux Shaikh are allowed with no order as to costs. As for the promotee appellant Syed Mahfooz Ali his seniority in the section officers cadre would be reckoned with effect from the 13th April, 1978 and not from 17th April, 1978 as mentioned in the impugned seniority list. Subject to this correction to be made in the said list his appeal is dismissed with no order as to costs. Similarly the appeal of promotee appellant Muhammad Yousuf Khan is also dismissed with no order as to costs.
Given under our hands and the Seal of this Tribunal on this 31st day of August, 1988 at Karachi.
K.L.R. 1989 Labour & Service Cases [Islamabad] Present: Salahuddin Chaudhri,Rashedd-ud-Din Arshad and Misbahullah Khan, Members A.D.NASIM Versus MINISTRY OF FINANCE AND OTHERS Appeal No. 144 R of 1987, decided on 11th August, 1988.
Federal Service Tribunals Act, 1973 -S.4- Appellants-Asst Divisional Engineers-Holders of Grade 17 posts- All AMIEs-President of Pakistan deciding to grant five advance increments to those with qualifications of graduation in any branch of engineering- Appellants claiming such increments thereby contending that AMIE is equivalent to B.Sc. Degree-Conversely respondents resisting the same and submitting that B.Sc.
(Engg) was a five years'eourse whereas for taking AMIE Examination only a three years; study is required- The Office memorandum allowing such increments provided only two conditions i.e., B- 17 posts and minimum prescribed qualifications-Held that-Since the appellants satisfied both these conditions they were entitled to premature increments-Appeals accepted.
1 (Paras, 2 3 & 6)
1981SCMR 675....Referred.
For the Appellant'. Muhammad Saeed Akhtar Bar-at-Law For the the Respondent: Hafiz S.A.Rahman Date of hearing: 11th August, 1988.
Salahuddin Chaudhri, Member.- These are seven identical appeals involving a common question and we propose to dispose them of through this consolidated order.
2. All the appellants are Assistant Divisional Engineers holding B- 17 posts in the T&T Department.As to their academic qualifications, they are Associate Members of Institute of Engineers. In 1975 it was decided by the President of Pakistan that the holders of B-17 posts of Engineers, the prescribed minimum qualification for which is graduation in any branch of engineering, would be allowed five advance increments with effect from 1-7- 1975. The relevant Office Memorandum dated 30-6-1975, on the subject, is reproduced below for convenience of reference.
"SUB: Grant of five premature increments in NPS-17 to certain categories of employees.
The President has been pleased to decide that, in the case of the incumbents of the following categories of posts who since before 1.7.1975 might be drawing pay in the National Pay Scale No.17 (Rs.500-50-1000/50- 1250), their pay in that scale will w.e.f. 1.7.1975, be enhanced by five premature increments subject to the condition that the pay so enhanced shall in no case exceed the maximum of the above scale.
(i) . The NPS-17 posts of Engineers, the prescribed minimum qualification for which is graduation in any branch of Engineers;
(ii) . The NPS-17 posts for which the basic minimum qualification is a Master's degree in any of the Physical/natural Science;
(iii) . The NPS-17 posts of Lecturers in Colleges.
In pursuance of the above decision, the engineers in the T&T Department drawing pay in B-17 who held B.Sc. Degree in Engineering were allowed the benefit of five advance increments. The appellants who were Associate Members of Institute of Engineers (hereinafter referred to as the AMIE), requested for similar benefit. They too were allowed but later it was withdrawn when the Ministry of Finance ruled that they were ineligible for the benefit for the reason that AMIE qualification is not equivalent to B.Sc. (Engg) Degree. The representation against this decision having failed, the appellants have come up in appeal before this Tribunal.
3. The case of the appellants is that AMIE is equivalent to B.Sc. Degree. The learned counsel for the appellants contended that this equivalence has been accepted by the governmental authorities as well as all the relevant institutions. In support of that he drew our attention to the following.
(a) The holders of AMIE diploma are eligible like the B.Sc. Engineers for appearing in the Central Engineering Service Examination conducted by the Federal Public Service Commission.
(b) Under the Central Engineering Service Class-I Recruitment Rules 1951, Section A and B of AMIE has been treated as equivalent to B.Sc. (Engg) for the purpose of recruitment to Class-I posts.
(c) The Pakistan Engineering Council recognized the engineering qualification as granted by the AMIE (pak) in the Pakistan Engineering Council Ordinance, 1975.
(d) The Ministry of Finance (Regulation Wing), Government of Pakistan, vide its letter No.F.3(4)/75- pt-D2 19/76-RI dated 29-3- 1976 informed the A.G.P.R., Islamabad, that on a reference in connection with the grant of five premature increments, the Education Division had confirmed that "the AMIE
(Pak) is equivalent to B.E./B. Sc. Engg, for the purpose of professional service in Engineering Dcpartment/organisation."
(e) In the course of the pendency of the appeals two of the appellants, namely, Mahmood and Naseem Ahmed Vohra, who are holding AMIE qualification, were allowed the benefit of five premature increments but without arrears.
4. The learned counsel submitted that on these facts the respondents were entirely wrong and not justified in refusing the grant of advance increments to those B-17 Officers who had AMIE as their qualification. He also relied on the decision of this Tribunal in Appeals Nos. 108(L) of 1984 and 77(R) of 1986 and the Supreme Court of Pakistan's decision in the case of the Government of the Punjab and another Vs Muhammad Amin reported as 1981 SCMR 675.
5. The respondents have resisted the appeal. The learned counsel appearing on their behalf submitted that the qualification of AMIE is not equivalent to the B.Sc. (Engg) Degree. He pointed out that B.Sc. (Engg) was a five years' course whereas for taking AMIE Examination only a three years study course is required. As regards the recognition by the Pakistan Engineering Council, it was submitted that the Council had later withdrawn its recognition granted earlier. The leamed counsel, therefore, strongly urged that the appellants were clearly not entitled to the grant of premature increments. Reliance was also placed on the decision of this Tribunal in Appeal No.3(R) of 1982 which was upheld by the Supreme Court of Pakistan in Civil Appeal No.101/1985.
6. We have carefully considered the issue in dispute and the arguments advanced from both sides.
A plain reading of the office Memorandum dated the 30th of June, 1975, would show that the entitlement to the benefit of five premature increments has been attached to B-17 posts the prescribed minimum qualification for which is graduation. So, the incumbents of such posts would be entitled to the benefit of premature of such posts would be entitled to the benefit of premature increments. That the appellants held B-17 posts is not in dispute. The question that remains to be determined is; what were the prescribed minimum qualificataions for the posts that they held? We find that for the competitive examination for recruitment to these posts the qualifications prescribed by the Federal Public Service Commission are as follows.
"A candidate must have obtained a Degree or equivalent qualification in Electrical/ Communication/ Civil/ Mechnical/ Electronic Engineering from one of the Universities/ Institutions mentioned in Appendix I."
This means that candidates who hold either B.Sc. Degree or equivalent qualification from a University of Institution mentioned in Appendix-I are eligible to appear in the examination and if successful, they can be appointed to the said posts. In Appendix-I, among the institutions mentioned, AMIE is one of them. It follows, therefore, that the prescribed minimum qualification for the posts of Assistant Divisional Engineer (B-17) is either B.Sc. Degree or AMIE. We also find that the Ministry of Education and the Pakistan Engineering Council recognised AMIE qualification as equivalent to B.Sc. (Engg) Degree. The learned counsel for the respondents had taken the plea that the Pakistan Engineering Council had later withdrawn its recognition but that was with effect from the 24th of May, 1986. This withdrawal of recognition, however, cannot adversely affect the entitlement of the appellants because when the impugned order refusing them the benefit of increments was passed, the recognition by the Pakistan Engineering Council held the field. Also, by allowing the claim of the two of the appellants Mahmood and Naseem Ahmed Vohra, the respondents have themselves accepted AMIE as the minimum qualification for the posts held by the said two appellants. The learned counsel for the respondents with a view to distinguishing the cases of Mahmood and Naseem Ahmed Vohra from that of the others, submitted that the former were direct recruits whereas the rest of the appellants were promotees from B-16. We do not see any merit in this plea because the Office Memorandum dated 30-6-1975 makes no such distinction. It was not laid down that the benefit of premature increments would be restricted to direct recruits alone. What was provided therein was only two conditions; B-17 posts and minimum prescribed qualification. Since the appellants satisfied both these conditions, they were in our view entitled to premature increments. It is relevant to mention that this very issue came up for consideration before the Supreme Court of Pakistan in the case Government of Punjab and Another Vs Muhammad Amin reported as 1981 SCMR 675. The Government of Punjab had also sanctioned five advance increments to incumbents of posts "in NPS-17 posts of Engineers, the prescribed minimum qualifications for which is graduation in any branch of Engineering." The Punjab Service Tribunal had held that the appellant before them who was AMIE was entitled to premature increments for the reason that AMIE and the B.Sc. Degree were equivalent. The Government's view point before the Tribunal as well as before the Supreme Court was that the benefit of five advance increments was available only to graduate Engineers and not to those who held AMIE Degree which was in fact a Diploma. In its judgment the Supreme Court upheld the decision of the Punjab Service Tribunal observing that "the decision of the Service Tribunal does not suffer from any infirmity so far the conclusion is concerned".
7. In the light of the above discussion, we hold that the appellants in the cases before us were entitled to five premature increments. Accepting the appeals, we direct that M/s A.D. Naseem, Ejaz Mohsin, Abdur Rashid, Mushtaq Ahmed and Mahmud Akhtar be allowed five premature increments with effect from 1-7-1975 and their pays refixed accordingly. The remaining two appellants, namely, Mahmood and Naseem Ahmed Vohra, who have since been allowed the benefit from a subsequent date, should be sanctioned the premature increments with effect from the dates they joined B-17 posts or 1-7-1975 whichever is later. They will be given the consequential back benefits.
8. No order as to costs.
9. Parties to be informed accordingly.
K.L.R 1989 Labour and Service Cases [Abbottabad] Present: Malik Muhammad Parvez Khan, Chairman and Muhammad Khan, Member.
ADIL HUSSAIN Versus SUB-DIVISIONAL EDUCATION OFFICER AND OTHERS Appeal No.99 of 1988 decided on 25th April, 1989.
NWFP Service Tribunals Act 1974 -S.4-Appellant a Chowkidar in Govt Girls Primary School-Service- Termination ofHis departmental appeal not answered by respondent No.1 within the statutory period-Appellant contending that he was dismissed without a show cause-Conversely respondents contending that the retention of the appellant in service was nuisance-Held that: The appellant could be easily transferred from that school to some other school or suspended and during this period a proper enquiry should have been conducted against him- -Further held That appeal is accepted accordingly and the appellant is reinstated in service from the date he was dismissed along with all back benefits.
(Paras, 2 4 & 6)
For the Appellant: Abullah Khan Tanoli, Advocate.
For the Respondent No.3: Masud-ur-Rehman Tanoli, Advocate.
Date of Decision: 25th April, 1989.
Malik Muhammad Parvez Khan, Chairman.-- Appellant has assailed the impugned order dated 27.2.1988 vide which his services were terminated by respondent No.1 and appeal to respondent No.2 had not been answered by him within the statutory period.
2. According to him he was employed as a Chowkidar in Govt.Girls Primary School, Nalla/Soha by respondent No.1 vide order dated 14.10.1987. He worked efficiently and honestly till he received the impugned order dated 27.2.1988 for his termination and the appointment of respondent No.3 in his place as Chowkidar. He moved the Divisional Director of Education, Hazara Division; Abbottabad for his redress vide appeal dated 5.3.1988, which was returned to him on 11.5.1988 with the direction, th? t he should move the proper forum to obtain his goal, so on the very day he preferred an appeal to respondent No.2 which was not answered by him within the statutory period; hence the present appeal on the grounds, that the order passed by respondent No.1 is illegal, void, wrong and against the principles of natural justice, that it was passed at the behest of an MPA who does not figure in the rules. On the basis of the above, it was prayed that the impugned order may be set aside by re-instating the appellant in service.
Claim of the appellant was hotly resisted by the respondents on the grounds that the appellant has got no cause of action, that the appeal is in- competent, that the appellant is estopped by his own conduct, that the appeal is barred by time, that the appellant cannot approach the Tribunal directly, that the concerned MPA has not been impleaded as a party and that the service of the appellant being temporary, he cannot challenge the termination order before this Tribunal. Further it was alleged by them that the appellant was appointed as Chowkidar on the recommendations of the concerned MPA and after receiving the complaints of the inhabitants of the locality as well as of the concerned Headmistress, the appellant was not considered fit to be posted in a girls school, his services were, accordingly terminated after an enquiry was conducted by Assistant Sub-Divisonal Education Officer on 3.2.1988 on the spot.
3. Learned counsel for the appellant argued that the appellant was dismissed from service without serving him with the show cause notice at the direction of the MPA concerned. The order is accordingly ultra vires of the rules, void and illegal and not binding upon the appellant. If an enquiry was conducted by the A.S.D.E.O, it was done in absentia and this enquiry also is in-effective upon his rights for want of charge sheet and summary of allegations etc. The departmental appeal was filed to the Divisional Director of Education Hazara on 5.3.1988 which was returned to him on 11.5.1988 and the appellant moved the appeal to the proper forum on the same day and approached this Tribunal on 17.7.1988 and the appeal was posted to 8.10.1988 for preliminary hearing, therefore, the appeal cannot be treated as premature.
3. On the other hand learned counsel appearing for the respondents argued that the appellant is bound by the agreement/appointment order in which, it was clearly stated that his services are liable for termination at any time without any notice. He cannot now object to this condition, when at the beginning accepted this obligation. There were complaints about him and his retention in a girls school would have become nuisance and a problem for the department.
4. We have considered the arguments and perused the record. The termination of service without show cause notice is illegal ultra vires and void, notwithstanding the fact that a man is working temporary or on probation. At least he must be apprised on the wrong committed by him for which he is going to be penalized by the authority. Service of notice is a mandatory condition whether it is contained in the special enactment meant for this purpose or not. It is against the principles of justice and the Islamic law as well. The allegation against the appeals was that his retention in service was nuisance for the public and the department. He could be easily transferred from that school to some other school or suspended and during this period a proper enquiry should have been conducted against him. Department haphazardly initiated the impugned action against him which no law on the earth encourages. For such like matter there is no period of limitation. The appeal is accordingly accepted and the appellant is re-instated in service from the date he was dismissed along with all back benefits. Parties are left to bear their own costs and file be consigned to the record room.
K.L.R 1989 Labour and Service Cases [Abbottabad] Present: Malik Muhammad Parvez Khan, chairman and Taj Muhammad Khan Member.
MAZHAR HUSSAIN SHAH Versus SUPERINTENDENT OF POLICE AND ANOTHER Appeal No.189/1988 decided on 24th April, 1989 NWFP Service Tribunals Act 1974 ~S.4"Appellant a Head Constable of Police-Recording of adverse remarks- Appeal for expunction thereof-Appellant contending that he was punished unheard-Prosecuting Inspector on the contrary arguing that departmental appeal filed by the appellant was barred by limitation and the Tribunal had no jurisdiction to decide the appeal-Held that Objection regarding limitation without substance as it was incumbent upon the departmental appellate authority to give findings on this point-Further held That it was incumbent upon the Reporting Officer to warn/advice the appellant in time before the writing of ACR-Appeal accepted-Impugned order set aside.
(Paras, 3 5)
For the Appellant: Shad Mohammad Khan, Advocate.
For the Respondents: Shabhir Khan, Prosecuting Inspector.
Date of hearing: 24th April, 1989.
Malik Muhammad Parvez Khan, Chairman.-Appellant preferred the present appeal aginst the communication of the adverse remarks for the year, 1987 to him on 8.6.1988 by respondent No.1.
2. According to him he joined the Police Force as a Constable in 1969. He qualified the requisite courses and was confirmed as Head Constable in the year, 1980. The adverse remarks vide Annexure-A were conveyed to him by respondent No.1 and he preferred an appeal to respondent No.2, copy of which is annexure-B. Respondent No.1 was asked to give his comments on the appeal.
Copy of the reply is annexure-C wherein no allegation was levelled against the appellant but respondent No.2 despite this fact rejected the appeal; hence the present appeal on the grounds that the order of the respondent is against law and all cannons of Justice. Respondent No.1 without any proof passed the impugned order which is mala fide.
3. Respondents submitted the written statement denying the allegations of the appellant and further stating that he has got no cause of action, that this court has got no jurisdiction, that the appeal is barred by time and that it may be dismissed for mis-joinder of parties.
On facts all the paras from 1 to 4 were denied, however, qua para 5 no comments were offered by the respondents.
4. Learned counsel for the appellant argued that appellant was punished un-heard. It was in- cumbent upon respondent No.1 to give opportunity to him before recording the adverse remarks in his ACRs. He failed to do so and this practice was also adopted by respondent No.2 at the time of hearing the appeal, in absence of the appellant. According to him ACR is such a document which determines the fitness, promotion and further retention of a government servant in service. So the Reporting Officers are duty bound under the norms of justice to apply their minds on each and every aspect of the employee's performance.
On the other hand learned Prosecuting Inspector argued that respondent No.1 had got no mala fide intention in awarding the adverse remarks to the appellant. Since the appellant served under him so he was in a better position to judge his personal traits. He further argued that departmental appeal filed by the appellant was barred by limitation and this court has no jurisdiction to decide the appeal.
5. We have given our patient hearing to the arguments advanced by both the sides and have gone through the record produced by the Prosecuting Inspector representing the department. So far as the plea of jurisdiction is concerned this Tribunal has got the powers to adjudicate upon such like matters because police force is also a government department and the present matter does not relate with the promotion of the appellant. The other objection regarding limitation is also of without any substance because it was incumbent upon the departmental appellate authority to give findings on this point. The record shows that the appeal was not decided on this issue.
Moreover the record brought by the Prosecuting Inspector does not show that as to when the appellant received the copy of the impugned order. His, version was that on receipt of the appeal, within no time he filed the departmental appeal and then the appeal before this Tribunal. As pointed out by the learned counsel for the appellant during his submissions above, we agree that ACR is a very important document and rather a deciding factor in the promotion, seniority and retention of a government servant in service, therefore, the Reporting Officer must write the same without any bias. If there is anything against an official/officcr, it is incumbent upon the Reporting Officer to warn/advice him in time but before the writing of the ACR. Similarly the departmental appellate authority is under legal obligation to summon on aggrieved government servant before deciding .His appeal in order to know the background of the case because there are certain matters which can only be judged if the aggrieved government servant is heard in person by the appellate forum. When the appeal was entertained by respondent No.2, he called upon the comments of respondent No.1 and a perusal of the said comments would show that the appellant had got an excellent record of service and there were no complaints against him. This being so, we accept the appeal, set aside the impugned order with the direction to expunge the adverse remarks from the ACR of the appellant. Parties are left to bear their own costs and file be consigned to the record room.
K.L.R 1989 Labour and Service Cases [Abbottabad] Present: Malik Muhammad Parvez Khan, Chairman and Muhammad Khan, Member MIR AFZAL Versus DIVISIONAL FOREST OFFICER AND OTHERS Appeal No. 208/1988, decided on 24th April, 1989.
NWFP Service Tribunals Act, 1974. -S.4- Appellant a Forest guard- He having been served with a show cause notice regarding a truck illicit timber- His sci vices terminated on that account- The authorised Officer after holding an enquiry recommending the penalty of censure and stoppage of increment- However authority not agreeing thereto and instead passing the impugned order of termination- Petitioiner agitating thereagainst thereby contending that neither charge sheet nor summary of allegation was served on him nor was any opportunity to produce defence afforded to him- Further argued that the penalty of termination from service is nowhere mentioned in the Service Laws- Held that The authorised Officer not adhering to legal requirements- Further held: that The authority was bound to issue show cause notice before passing order and the same was more necessary because the authority did not accept the proposal of the authorized Officer and in his own wisdom magnified the punishment- Appeal accepted-Appellant re-instated in service with back benefits.
(Paras, 1 2 & 3)
For the Appellants: Shad Mohammad Khan, Advocate.
For the Respondent: Farrukh Jawad Panni, Special Govt Pleader.
Date of hearing: 24th April, 1989.
Malik Muhammad Parvez Khan, Chairman.- Feeling dis-satisfied with the impugned order dated 17.8.1988 of respondent No.1 vide which the services of the appellant were terminated, he has moved this Tribunal through the present appeal after exhausting the departmental remedy, by filing appeal before respondent No.2.
2. According to him he joined the Forest Department as Forest Guard some 15 years before. He was posted as such at Garhi Road Barrier when he was served with a show cause notice regarding a truck which was carrying illicit timber, to which he submitted the reply and Mr.Masud-ur- Rehman, Forest Ranger, was appointed as an Authorised Officer, who after holding an enquiry recommended the penalty of censure and stop page of increment but respondent No.1 did not agree with it and passed the impugned order, against which he preferred an appeal to respondent No.2 which also met failure; hence the present appeal on the grounds that the order of respondent No.1 is against law and all cannons of justice, that neither charge sheet nor summary of allegation was served on the appellant nor any opportunity to produce defence was afforded to him and that respondent No.2 also did not apply his mind. Further it was prayed that the penalty of termination from service is no-where mentioned in the service laws.
3. Together with it another appeal bearing No.209/1988 was filed against the impugned order on the same grounds in respect of the same order with this difference that service of the appellant was 13 years and he was posted as Forest Guard at Ghazikot Barrier. Since both the appellants assailed the impugned order dated 17.8.1988 of respondent No.1 as well as subsequent order of respondent No.2, therefore, this single judgement will dispose of both the matters under consideration.
4. Written statement was submitted by the respondents and it was alleged that the appellant released a truck No.7956-PRC carrying 90 Kail Scants =466.06 cft of illicit timber under the cover of challan of chir timber 100 scants = 389 cft of Satbani Cooperative Society. The truck was, however, apprehended in a Saw Machine at Supply Bazar, Abbottabad on 31.12.1987 by Petrol Squad.
Accordingly an enquiry was conducted by appointing Mr.Masood-ur-Rehman, Forest Ranger, as an Authorised Officer, who issued a show cause notice but the reply of the appellant being unsatisfactory, the impugned order was passed under (Efficiency& Discipline) Rules, 1973. Since the recommendations of the Authorised Officer were very lenient therefore, the authority passed the impugned order. The Authorised Officer gave full opportunity to the appellant to defend him. The order of termination is actually order of removal from service hence it is in consonance with the provisions of the (Efficiency & Discipline) Rules;973.
5. Learned counsel for the appellant argued that it was incumbent upon the Authorised Officer to give reasons for dispensing away with the enquiry proceedings against the appellant on the one hand and on the other hand it was a legal requirement to serve the appellant with the second show cause notice before passing the impugned order.
Learned counsel for the respondents on the other hand argued that the very order regarding the infliction of the minor penalty by the Authorised Officer suggests that he has dispensed away with the enquiry procedure. The authority was competent to differ with the recommendatioins of the Authorised Officer.
6. We have given our patient hearing to the arguments advanced by both the sides and have come to the conclusion that rule 5 of the (Efficiency & Discipline) Rules, 1973 deals with the procedure to be followed by the Authorised Officer. Sub-rule 2 lays down that "the Authorised Officer shall decide whether in the light of facts of the case or the interests of justice an enquiry should be conducted through an Enquiry Officer or Enquiry Committee. If he so decides, the procedure contained in rule 6 shall apply". Sub-r ile 3 of rule 5 provides that "if the Authorised Officer decides that it is not necessary to have an enquiry conducted through an Enquiry Officer or Enquiry Committee, he shall:-
(a) by order in writing, inform the accused of the action proposed to be taken in regard to him, and the grounds of the action; and
(b) give him a reasonable opportunity of showing cause against that action".
7. When we go through the record of the case it becomes crystal clear that the Authorised Officer did not adhere to this legal requirement, but passed the impugned order on the basic of the material before him, after obtaining the reply to the show cause notice from the appellant. The authority in ;the instant case did not agree with the recommendations of the Authorised Officer but instead enhanced the sentence proposed by the Authorised Officer. In every matter the authority is bound to issue show cause notice to an employee before passing the order against him, but in the instant case it was more necessary because the authority did not accept the proposal of the Authorised Officer and in his own ;wisdom magnified the punishment. This vitiates the entire proceedings. We have no alternative but to accept the appeal by setting aside the impugned order and re-instate the appellant in service with all back benefits, from the date he was dismissed. Parties are however, left to bear their own costs and file be consigned to the record room.
K.L.R 1989 Labour & Service Cases [Lahore] Present: Abdul Waheed, J.
ABDUL GHAFOOR Versus ABDUL SATTAR R.S.A. No. 403 of 1975, decided on 25th February, 1989.
(a) Specific Relief Act, 1877 "S.42Plainfiff"Appellant-Hammer-Man in the Railway Deptt: qualified in the test-Thereupon promoted as black-smith-On appeal by defendant- respondent No.2 reverted to the post of hammer man and instead defendant- -Respondent No.2 promoted as blacksmith by respondent No.1 -Plaintiff- Appellant instituting a suit for a declaration that the order dated 20 of Sept. 1969 whereby he was reverted was illegal and for a direction to respondent No.1 to treat him as a black smith-Thereby alleging that he was senior to respondent No.2 -Defendant-respondent No.2 contested the same thereby callenging the jurisdiction of the civil court to try the suit-The trial court decreed the suit of the Plaintiff-Appellant.
(Paras, 2 3 & 5)
(b) Civil Procedure Code, 1908 -S.96~Railway Dcptt-respondent No.1 assailing the decree of the trial court-However, respondent No. 2 who was primarily affected by the judgment and decree not filing an appeal nor was he impleaded as a party to such appeal-Distt Judge reversed the finding of the trial court on the ground that the appellant was promoted to the post of black smith temporarily and having not been confirmed in that post his reversion as hammer-man did not amount to demotion-Apeal of respondent No.1 was accordingly accepted.
(Para, 6)
(c) Civil Procedure Code, 1908 -S.100-Appellant preferring second appeal against the findings of the appellate court below- Respondent No.1 agitating thereagaisnt stating that civil court had no jurisdiction to try the suitIt however, appearing that such objection was not pressed before-Further contended that on the establishment of labour courts-Jurisdiction of civil courts ousted to adjudicate upon industrial disputes by implication of S.25-A of the IRO 1969- -The same having been added on 13-4-1972 - While the suit of the appellant was filed on 31-3-1970-Held that: Under the principle of "audi alteram partem" the appellant should have been provided with an opportunity of hearing-The same not done-Appeal accepted.
(Paras, 7 8 & 9)
PU-1982 Lah-396 For the Appellant: Anwar Kamal, Advocate.
For the Respondent No.1: Abdul Jabbar, Advocate.
For the Respondent No.2: Nemo.
Date of hearing: 25th February, 1989.
Abdul Waheed J. This regular second appeal is directed against the judgment and decree of the District Judge, Sheikhupura dated 8th of May,1975 whereby the appeal filed by respondent No.1 against the judgment and decree passed by the Senior Civil Judge, Sheikhupura on 29th of January, 1974 decreeing the suit of the appellant was accepted and the suit of the appellant was dismissed, leaving the parties to bear their own costs.
2. The facts briefly are that Abdul Ghafoor, appellant joined the Railway Department as mason colly on 18th of July, 1949. Abdul Sattar, respondent No.2 was appointed as Chowkidar on 16th of October,1951. On 12th of November,1957, respondent No.2 was promoted as hammer-man. The appellant impugned the promotion of respondent No.2 as hammer-man by way of an appeal on the ground that he was entitled to be promoted as hammer-man in preference to respondent No.2 as he was senior to respondent No.2. On 13th of April,1963 the appeal of the appellant was accepted and he was promoted as hammer-man vice respondent No.2 who was reverted as colly vide order Ex.P.1. Subsequently on the occurrence of a vacancy of a black-smith, a trade test as prescribed therefor was held. The appellant qualified in the test and, therefore, he was promoted as a blacksmith vide order dated 8th of March,1969 Ex.P.2. Respondent No.2 filed an appeal assailing the promotion of the appellant. On 20th of September,1969, the appellant vide order Ex.P.3 was reverted to the post of hammer-man and in his place respondent No.2 was promoted and posted as a black-smith. On 31st of March, 1970 the appellant instituted a suit for a declaration that the order dated 20th of September, 1969 was illegal, ultra vires and void and for a direction to respondent No.1 to treat him as a black-smith and issue order for his posting as such. He alleged that he was senior to Abdul Sattar, respondent No.2 and that the order dated 20th of September, 1969 had been passed without any notice to and without hearing him.
3. Respondent No.2 did not appear to contest the suit. Therefore, proceedings were taken ex parte against him. Respondent No.1, however, contested the suit asserting that the order dated 20th of September,1969 was correctly passed. It was denied that the appellant was senior to respondent No.2 or that respondent No.2 had not passed the trade test. The jurisdiction of the civil court to try the suit was also challenged.
4. The trial court framed the following issues:-
1. Whether this court has no jurisdiction to try the suit?
2. Whether the plaintiff has been reduced in rank?
3. Whether the order of Assistant Engineer No.5 Qilla Sheikhupura dated 20.9.69 is illegal, without jurisdiction and void for the reasons given in para No.6 of the plaint.
4. Relief.
5. After appraising the evidence adduced by the parties, the learned trial court found issue No.3 in favour of the appellant. Issue No.1 was not pressed and issue No.2 was considered as redundant.
Accoringly the suit of the appellant was decreed.
6. Feeling aggrieved, only the Railway Department viz. Respondent No.1 preferred an appeal. Abdul Sattar, respondent No.2 who was primarily affected by the judment and decree of the trial court did not file an appeal nor he was impleaded as a party to the appeal filed the Railway Department. The learned District Judge reversed the finding of the trial court on issue No.3 on the ground that the appellant was promoted to the post of blacksmith temporarily and since he was not confirmed in that post, his reversion as hammer-man did not amount to demotion. He, accordingly, accepted the appeal of respondent No.1 and dismissed the suit of the appellant. Hence this second appeal.
7. Learned counsel for respondent No.1 has agitated that the civil court had no jurisdiction to try the suit. As mentioned above, this objection was taken in the written statement and issue No.1 was framed thereon but at the time of arguments, the same was not pressed. It appears from the judgment of the learned lower appellate court that this objection was not pressed before it also.
8. In support of the objection, learned counsel for respondent No.1 has cited Muhammad Saeed and 3 others versus Chairman, Pakistan Railway, Lahore and 2 others (PLJ 1982 Lahore 396) wherein it was held that on the establishment or Labour Courts, the jurisdiction of Civil Courts to adjudicate upon industrial disputes in respect of workmen was ousted by implication in view of section 25-A of the Industrial Relations Ordinance, 1969. Section 25-A was added in the Industrial Relations Ordinance, 1969 on 13th April, 1972. Learned counsel for the appellant has stated that he examined the record of the precedent case and found that the suit in that case had been instituted on 19th of January, 1978. The suit of the appellant was, however, filed on 31st of March, 1970. Section 25-A does not envisage that proceedings already commenced in the civil court would abate on its enforcement. Therefore, this provision of law does not affect the present proceedings.
9. As regards the merits of the case, the appellant was promoted as black-smith on 8th of March,1969 for two reasons; firstly that he was senior to respondent No.2 and secondly that he had passed the trade test while respondent No.2 did not appear in that test. It is not denied that the appellant joined the Railway Department on 18th of July,1949 whereas respondent No.2 was appointed as Chowkidar on 16th of October,1951. The senoirity of the appellant was up-held when on his appeal against the promotion of respondent No.2 as hammer-man, he was promoted as hammer-man and respondent No.2 was reverted as colly vide order dated 13th of April, 1963 Ex.P.1.
Muhammad Nasrullah, P.W.2, I.O.W. Of the Reialway Department and a Member of the Test Board deposed that the appellant had qualified in the trade test for the post of black-smith while respondent No.2 had absented himself. Ayub Ahmad, D.W.1, an Assistant Engineer, stated that there was nothing on record showing whether respondent No.2 had or had not passed the trade test. It is evident from the statements of these two officials that the appelant had positively passed the trade test but respondent No.2 did not pass the same. The appellant deposed as P.W 1 that before reverting him from the post of black-smith on the appeal of respondent No.2, he was not served with any show cause notice. There is nothing on record to rebut this testimony. Learned counsel for the appellant has in this connection referred to Rule 610 of Section VI (Seniority) of the Pakistan Railways Personnel Manual Volume I, which provides. "In every case in which it is found necessary to alter the position of an individual on the seniority list, to his disadvantage, a show-cause notice must be served on him and his explanation obtained before final orders are passed." This rule was obviously violated in this case. Even if this rule were not in existence, the principle of natural justice embodied in the maxim audi alteram partem which inheres in every procedure required that the appellant should have been provided with an opportunity of hearing before reverting him from the post of black-smith. In these circumstances, the order dated 20th of September, 1969 was manifestly void and ineffectual and notwithstanding the same the appellant was entitled to continue as black-smith.
10. In the result, this appeal is accepted and the suit of the appellant is decreed with costs throughout, setting aside the judgment and decree of the lower appellate court and restoring the judgment and decree of the trial court.
K.L.R 1989 Labour & Service Cases [Lahore] Present: Lehrasap Khan, J.
MUHAMMAD ASLAM, CHEEMA.
Versus NATIONAL BANK OF PAKISTAN W.P. No.2200 of 1986, decided on 14th March, 1989.
(a). Industrial Relations Ordinance 1969 --S.25-A- Petitinoer-A junior clerk in National Bank of Pakistan-Promoted as Grade-III Officer- Directed to work temporatily as Manager-He committing irregularities-Charge sheet therefor-In domestic enquiry he not found guilty-Still removed from service-His grievance petiton allowed- Ordered to be re-instated with back benefits-However, Respondent No.1- Bank appealing thereagainst before Punjab Labour Appellate Court-Such appeal allowed on two grounds that the Petitioner at the relevant time served as Manager-He was not a workman-Having no locus standi to file grievance petition-Further terms and conditions of service of employees of nationalised banks governed by Award of Wage Commission-The same enforceable through N.I.R.C, alone. #tbs (Paras, 12) #the (b). Constitution of Pakistan 1973 -Art.199- Petitioner assailing the judgment of the Tribunal below- Petitioner was entrusted additional charg as Manager-He continued performing his original clerical duties as Officer Grade- III-Also working as Cashier-Held that: The impugned judgment of the Tribunal below based on mis- reading and non-reading of evidence-Petition-Further held-Allowed- -Order to re-instating the Petitioner in service with back benefits restored.
(Paras, 4 5)
1988 SCMR 1664..... Relied.
For the Petitioner: Mohammad Jamal Qureshi, Advocate.
For the Respondent: Mian Khurshid Ahmad, Advocate.
Date of hearing: 14th March, 1989
Lehrasap Khan, J.- Muhammad Aslam Cheema, the petitioner herein, was initially employed as Junior Clerk in September, 1964 in the National Bank of Pakistan, the respondent No.1 and in course of time he was promoted as Officr Grade-Ill on 1-3-1976. In the year 1977, the petitioner was posted as Officer Grade-Ill in Begowal Branch of Sialkot District of the respondent-bank. In 1978, the Manager of Begowal Branch was transferred. His substitute was not appointed for some time and the petitioner was directed to work temporarily as Manager of Begowal Branch in addition to his own duties of Officer' Grade-Ill. In July, 1982, the petitioner was transferred from Begowal Branch to Sambarial Branch as Officer Grade-Ill. Some time later he was transferred in the same capacity to Shakargarh Branch of the respondent bank. While posted at Shakargarh, the petitioner was served with a charge-sheet (Annex. 'A'). He was accused of irregularities committed by him while posted as Officer Grade-Ill (Ex-Manager) in Begowal Branch. The petitioner submitted reply to the charge-sheet denying the charges. A domestic enquiry followed.
As a result whereof he was found not guilty. Nevertheless vide order dated 3-9-1983 (Annex. 'D'), the petitioner was removed from bank's service. He unsuccessfully filed departmental appeal and subsequently after service of a grievance notice, the petitioner filed a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance), before the learned Punjab Labour Court No.7, Gujranwala. The grievance petition was contested by respondent No.1. The learned Labour Court after recording the parties evidence and after hearing them allowed the grievance petition of the petitioner and order his reinstatement wiht back benefits.
2. Respondent No.1 preferred an appeal before the learned Punjab Labour Appellate Tribunal, Lahore and the learned Tribunal vide its judgment dated 27-4-1986, allowed the appeal on two grounds. Firstly, that at the relevant time the petitioner served as Manager and, therefor, he was not a workman having locus-standi to file grievance petition under section 25-A of the Ordinance and secondly that terms and conditions of service of employees of nationalized banks being governed by the Award of Wage Commission which was enforceable through the N.I.R.C, alone, the Labour Court lacked jurisdiction in the matter.
3. The aforesaid judgment dated 27-4-1986, passed by the learned Punjab Labour Appellate Tribunal, Lahore has been assailed through the present writ petition.
4. It is note-worthy that regarding question of jurisdiction of Labour Court, the learned Labour Appellate Tribunal has based its findings on a judgment of a Division Bench of this Court but that judgment has since been set-aside by the Supreme Court of Pakistan. The August Supreme Court has found that a dismissed workman of a notionalized bank has locus standi to file grievance petition under section 25-A of the Ordinance, if his dismissal or removal is violative of the Award of the Wage Commission as the Wage Commission Award is enforceable under section 25-A like any other Award. Regarding the second aspect of the matter that if the petitioner happened to be a workman or an employer, it may be observed that this is a question of fact. On this question after recording parties evidence, the Labour Court has found that the petitioner was a workman while otherwise findings have been recorded by the learned Appellate Tribunal which was, of course, possessed of the jurisdiction to interfere with the finding of fact recorded by the Labour Court. But if the finding of the learned Appellate Tribunal is based on misreading of evidence, the same may be interfered with by this Court in exercise of writ jurisdiction. It has been observed by the learned Appellate Tribunal " in cross examination he had admitted that he worked as Manager in Begowal Branch and during that time he discharged all the duties of a Manager. He admitted that his basic salary at that time was Rs.1200/- or Rs.1300/- per month. He admitted that he used to write A.C. Rs of the employees working under him." Annex. 'F is a copy of evidence led by the parties before the Labour Court. It transpires from the contents of Annex. 'F' that the petitioner appeared as PW2 and in his statement he deposed that he was actually appointed as Second Officer in Bcgowal Branch in 1977. On the transfer of Bashir Ahmad in June, 1978, the petitioner was entrusted additional charge of the post of Manager but besides his additional duties as Manager, he continued performing his original clerical duties as Officer Grade-Ill. He also disclosed that during the period he performed additional duties as Manager, it was two men branch i.e. The petitioner and a cashier. He gave details of his duties which he performed during the crucial period at Begowal which were certainly of clerical nature. The learned Labour Appellate Tribunal has failed to consider that duties performed by the petitioner as Manager at Bcgowal Branch were additional duties being in addition to his original duties as Officer Grade-Ill. The respondent bank examined PW2 Zahoor Ahmad to show that the petitioner served as Manager at Begowal at the relevant time and that he performed supervisory duties. In his cross examination, this witness conceded that the petitioner performed the duties of Staff Officer also at Begowal. Prior to entrustment of duties of Manager, he served under Muhammad Mushtaq, Zulfiqar and Bashir Ahmad. This witness could not produce any order to show that the petitioner was appointed regularly as Manager. He admitted that when the petitioner started working as Manager at Begowal Branch, no additinoal staff was posted in that Branch and the petitioner continued performing the duties of Staff Officer also in the said branch. A considered analyses of the parties evidence leads to the conclusion that at the relevant the time the petitioner served as Officer Grade-Ill at Begowal Branch and performed clerical duties. At that time he was also entrusted additional charge of the post of Manager of the said branch but inspite of the additional charge, he continued performing duties as Officer Grade- Ill. The evidence in this behalf has hot been read by the learned Tribunal.
5. For the foregoing conclusion, it is held that the impugned judgment passed by the learned Labour Appellate Tribunal is based on misreading and non-reading of evidence so far as the status of the petitioner as workman or otherwise is concerned. In the case of Allied Bank of Pakistan Ltd. Vs Muhammad Humavun Khan and others (1988 S.C.M.R. 1664), it has been held that if the finding of fact is routed from the evidence, there is hardly any scope for the Supreme Court to interfere in constitutional appeal. In the light of the above discussion, this writ petition is allowed and the impugned order is held to be without lawful authority and of no legal effect. The result would be that the judgment of the learned Punjab Labour Court No.7, Gujranwala, reinstating the petitioner in service with back benefits stands restored. There shall, however, be no order as to costs.
K.L.R. 1989 Labour Service Cases [Lahore] Present: Lehrasap Khan, J.
NATIONAL BANK OF PAKISTAN Versus PUNJAB LABOUR COURT No.77 GUJRANWALA ETC. Writ Petition No.1688 of 1984, decided on 11th March, 1989
(a) . Industrial Relations Ordinance, 1969 --S.25-A-Petitioner-Respondent No.2 a clerk in National Bank-Dismissed from service for insubordination and mis-conduct-Thereagainst his both the grievance petitions allowed by the Labour Court below-However, the respondent-Bank filing appeals before the Punjab Labour Appellate Tribunal calling in question the Labour Court's judgments-The same dismissed.
(Paras, 2 4 & 5)
(b) . Constitution of Pakistan, 1973 -Art.199- Petitioner Bank contending that terms and conditions of service of employees of Nationalised Banks governed by Award of Wage Commission-The same enforceable through N.I.R.C.-Thus an application u/S 25-A of the Ordinance was not competent-Held-That: The judgment dismissing the appeals of the petitioner bank not been assailed through the writ petition-Though such judgments since merged into the judgment passed by the Labour Appellante Court-Further held: That after merger Labour Court's judgments since impugned through the present writ petition are no more in the field Petition thus misconceived-The same dismissed.
(Para, 7)
For the Petitioner: Khurshid Ahmad Mirza, Advocate.
For the Respondent No: Muhammad Asghar Malik, Advocate.
Date of hearing: llth.March, 1989.
Lehrasap Khan, J.- This judgment shall dispose of two writ petitions (Writ Petition No.1688 of 1984 titled National Bank of Pakistan Versus Punjab, Labour Court No.7, Gujranwala etc and Writ Petition No. 1689 of 1984 titled National Bank of Pakistan Versus Punjab Labour Appellate Tribunal etc).
2. Saadat Hassan Khan, respondent No.2 in both the writ petitions was in the service of National Bank of Pakistan as clerk in the year 1977. He was then serving in Small Industrial Branch, Gujranwala. He was charge- sheeted on 25.4.1977 (Annexure A) whereby he was accused of insubordination and mis-conduct etc. Explanation furnished by him to the charge sheet was considered unsatisfactory and thus a domestic inquiry followed. As a result of inquiry he was found guilty and consequently he was dismissed from service on 18.3.1982. The respondent after service of grievance notice on the employer, filed a grievance petition before the learned Punjab Labour Court No.7, Gujranwala under section 25-A of the Industrial Relations Ordinance, 1969, (hereinafter referred to as the Ordinance) Grievance petition was of course opposed by the petitioner - bank. The learned Labour Court, however, after hearing the parties and after recording their evidence allowed the respondent's grievance petition and ordered his reinstatement in service, vide judgment dated 12.4.1984.
3. The respondent while employed as clerk at City Branch, Gujranwala was also charge-sheeted on the charges of mis-conduct, insubordination etc. In that case also a domestic inquiry was conducted, as a result of which he was' found guilty. In that case also he was dismissed from service. He challenged his dismissal before the Labour Court under section 25-A of the I.R.O 1969 through another grievance petition. The said grievance petition has also been decided in favour of the respondent.
4. Both the orders passed by the learned Labour Court whereby two grievance petitions filed by the respondent have been allowed and he has been ordered to be reinstated in service, have been assailed through constitutional writ petitions.
5. The petitioner's bank before filing the writ petitions filed appeals before the learned Punjab Labour Appellate Tribunal calling in question the Labour Court's but before the decision by the Lobour Appellate Tribunal the petitioner bank filed the under consideration writ petitions. In the present writ petitions, it was mainly averred that terms and conditions of service of the employees of Nationalized Banks and other Financial Institutions were governed by the Award of the Wage Commission and the said award could only be enforced through the NJ.R.C. It was thus urged that on the basis of award of Wage Commission an application under section 25-A of the Ordinance was not competent and thus the Labour Court lacked jurisdiction in the matter. These contentions found favour with a learned Division Bench of this Court which was then seized of these cases. Thus the writ petitions were allowed and the Labour Courts Judgments were set aside. Subsequently, the appeals filed by the petitioner-bank before the leamed Punjab Labour Appellate Tribunal also came up for hearing before the Tribunal and the leamed Tribunal relying on the judgment of the learned Divisoin Bench of this Court found that the Labour Court had no jurisdiction in the matter.
The Tribunal however, concluded that on account of the decision by the Division Bench the appeals filed by the petitioner-bank before the Tribunal had become infructuous. Consequently, the appeals were dismissed on 11.6.1985.
6. In the meantime, however Saadat Hassan Khan, respondent No.2 and the other adversely affected employees of the Nationalized banks preferred appeals before the learned Supreme Court of Pakistan against the judgments of the Division Bench of this Court. The August Supreme Courts of Pakistan accepted the appeals filed by Saadat Hassan Khan and other employees of the Nationalized banks and set aside the judgment of the Division Bench. It has been found by the learned Supreme Court of Pakistan that Award by the Wage Commission like any other award is enforceable under section 25-A of the Ordinance and therefore, an employee of Nationalized bank has a locus standi to challenge the order of his termination from service before the Labour Court on the ground that the same was violative of the terms of the award of the Wage Commission. The under consideration case as also cases of other employees of the nationalized banks decided by the Division Bench have been remanded to this Court for decision of other issues involved in the cases.
7. As already stated in the circumstances of the Present case the impugned judgments passed by the learned Punjab Labour Court No.7 Gujranwala are no more in the field because the appeals against the said judgments preferred by the petitioner-bank before the learned Punjab Labour Appellate Tribunal have since been decided. The appeals have actually been dismissed by the Tribunal. Unfortunately judgment passed by the Tribunal dismissing the appeals filed by the petitioner-bank have not been assailed through the present writ petitions. Legally after the decision of appeals by the learned Labour Appellate Tribunal the judgments of the Labourt Court have merged into the judgment passed by the Labour Appellate Tribunal. After such merger, Labour Court's judgments which have been impugned through the present writ petitions are no more in the field and thus the present writ petitions have been rendered as mis-conceived and thus legally not competent. In this view of the matter both writ petitions are dismissed but there shall be no order as to costs.
KEY LAW REPORTS [K.L.R.] Shariat Cases K.L.R 1989 Shariat Cases [Lahore] Present: Rashid Aziz Khan, J.
ANWAR Versus THE STATE Crl. Misc. No_356-B of 1989,/ decided on 21st February, 1989 Criminal Procedure Code, 1898 -S.497/498-Case u/Ss 10 & 11 of Offence of Zina (Enforcement of Hadood) Ordinance 1979-Standing registered against the petitioner and others-Petitioner agitating thereagainst'thereby contending that occurrence alleged to have taken place on 20-4-1987 but the case registered on 23.1.1988- - No explanation with regard to this delay given-Further stated that the petitioner was the husband of the lady/abductee and as such no offence had been committed by him-She not being the wife of the first informant-The investigating officer while explaining the delay stated that during the investigation the statement of Nikah Khawan was recorded who had said that he had performed the Nikah of the petitioner with the alleged abductee- Held that - The case of the petitioner being of further inquiry he is allowed bail.
(Paras,1,2)
For the Petitioner: Ch.Muhammad Anwar Khan, Advocate.
For the State: Akhtar Shabhir, AddI: Advocate-General.
Date of hearing: 21st February, 1989.
RASHID AZIZ KHAN, J.- A case under sections 10/11 of Offence of Zina (Enforcement of Hadood)
Ordinance, 1979. Stands registered against the petitioner and some others, with Police Station Saddar Chinniot. The allegations as contained in the FIR are that on 20.4.1987, the first informant along with his wife Mst.Sakina Bibi were coming towards their village. When they reached near Pindi Bhattian the petitioner along with others while armed with fire-arms came and tied the hands of the first informant, and threw him in a pit after taking Rs.3,000 - out of his pocket. Thereafter, they abducted the first informant.
It is contended by learned counsel for the petitioner that the occurrence is alleged to have taken place on 20.4.1987 but the case was got registered on 23.1.1988. No explanation with regard to this delay has been given. Submits that the petitioner's the husband of Mst. Sakina Bibi, therefore, no offence as such has been committed by him.The petition has been opposed by the learned counsel for the state.
2. I have heard leamed counsel and perused the record.There is no explanation given by the first informant why he got the case registered with the delay of almost 9 months.I had enquired from the investigating officer who has admitted that during investigation the statement of Nikah Khawan was recorded who stated that he had performed the Nikah of the petitioner with Mst.Sakina Bibi the alleged abductee.In these circumstances,I feel the case of the petitioner is of further inquiry. Therefore, he is allowed bail in the sum of Rs.25,000/- with two surties, each in the like amount, to the satisfaction of A.C/Duty Magistrate,Saddar Chinniot.
K.L.R 1989 Shariat Cases [Lahore] Present: Sajjad Ahmed Sipra, J.
ZAKIR HUSSAIN ALIAS ZAKIR AHSAN Versus THE STATE Cr.M. No.l55-B of 1989/BWP, decided on 28th February, 1989 Prohibition(Enforcement of Hadd)
Order, 1979 -Art.3/4Bail grant -Petitioner contending that there is no witness of the aleged recovery from the locality-S.103 Cr.P.C have been-violated-Only one gram heroin has been sent to chemical Examiner-After a lapse of one month no result have been received-Accused was no longer required for investigation-Petition is admitted bail.
(Paras, 6)
For the Petitioner: Malik Muhammad Aslam, Advocate.
For the State: Sh. Abdul Hameed, Advocate.
Date of hearing: 28th February, 1989.
SAJJAD AHMED SIPRA, J.-The brief facts of the present bail petition are that an F.I.R No.18/89 dated 28.1.1989 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 was registered at P.S Cantt:Bahawalpur.
2. According to the F.I.R the S.H.O of said P.S had come to know through a secret information that a person was selling heroin at the road side ground on Bahawalpur-Ahmedpur East Road. Therefore, a person was sent as a fictitious customer to entrap the said heroin sellor, who purchased one purri of heroin,and thereafter the accused Zakir Hussain was arrested. On the personal search of the accused 15 Purris of heroin weighing 15 grams were recovered. Some money was also recovered from the accused. The heroin alleged to have been recovered was sent to the Chemical Examiner for his report.
3. The accused had applied for bail before the learned Sessions Judge, Bahawalpur which was rejected vide his order dated 15.2.1989.
4. The learned counsel for the petitioner argues for bail on the following grounds:
(1) . That there is no witness of the alleged recovery from the locality itself, and thus the provisions of section 103 Cr. P.C have been violated. Resultantly there is no recovery in the eyes of law.
(2) . That only one gram of heroin has been sent to the Chemical Examiner for his report, and that no result of the Chemical Examination has been received even after a lapse of one month.
(3) . That as only one gram of heroin has been sent to the Chemical Examiner for his report, therefore, even a positive report will not bring the case of the petitioner within the prohibitory clause.
(4) . That the petitioner is in the judicial lock-up and is no more required by the police.
(5) . That he belongs to a respectable family and is not a previous convict and that bail should not be refused as punishment.
5. In support of his contentions the learned counsel for the petitioner relied upon the following authorities:-
(1) . N.L.R 1989 S.D page 106 (Ghulam Fareed vs The State). Heroin it was held that accused was released on bail on the ground that only one out of thirteen grams of heroin recovered from him had been sent to the Chemical Examiner for his report and that recovery memo was not attested by any witness of locality.
(2) . N.L.R 1988 S.D page 487/(2) (Fida Hussain vs The State). Heroin the bail was granted to the accused who was not a previous convict and was no longer required for investigation, although, he was charged with offence under Articles 3/4 Prohibition (Enforcement of Hadd) Order,1979.
(3) . 1986 P.Cr.LJ 1574 (Niaz vs The State). Heroin the bail was granted to the accused as the report of the Chemical Examiner had not been received after even a lapse of two months.
6. The leamed counsel for the State opposed the grant of bail. However, the leamed counsel for the State confirmed that only one gram of heroin has been sent to the Chemical Examiner for his report. He further confirmed that there is no witness of the locality in respect of the recovery alleged. He further confirmed that the report of the Chemical Examiner has not been received as yet. He further confirmed that the accused was no longer required for investigation.
7. In view of the statement of the leamed counsel for the State, and under the facts and circumstances of the case, and placing reliance on the authorities cited by the learned counsel for the petitioner, the accused/petitioner is admitted to bail in the sum of Rs.30,000/- with one surety in the like amount to the satisfaction of the A.C/ Duty Magistrate, Bahawalpur.
K.L.R 1989 Shariat Cases [Lahore] Present: Rashid Aziz Khan, J.
ABDUL HAMID Versus THE STATE Crl. R. P. No.620 of 1984, decided on 23rd January, 1989 Criminal Procedure Code, 1898 -S.439-Petitioner standing surety in favour of the accused involved in a case u/S 377 PPC read with S.12 of Offence of Zina (Enforcement of Hudood) Ordinance 1979-The accused appearing for sometime but absented later- The trial court kept on adjourning the case for II months whereafter forfeiting the surety in the whole amount as was furnished by the petitioner- Petitioner agitating such order thereby contending that the trial Court had erred in law because it should have passed an order forfeiting the bond and thereafter should have given him a notice for the realisation of the amount- Such contention-Held Is without substance because the moment notice was given it automatically meant the forfeiture of the surety bond-Further held.That as the accused had subsequently attended the whole amount should have not been for fieted has some substance- The amount to be for feieted is reduced from Rs.20,000/- to Rs.5,000 - Petition is disposed of accordingly.
PLD 196 3SC47....Refers.
(Para, 2)
For the Petitioner: Zaka-Ur-Rehmao, Advocate.
For the State: Anwar Zahid, Advocate.
Date of hearing: 23rd January, 1989.
RASHID AZIZ KHAN, J- The facts leading to the filing of this revision are that the petitioner Abdul Hamid,stood surety in the sum of Rs.20,000/-in favour of one Inayat Ali who was involved in a case under section 377 PPC read with section l2 of Offence of Zina(Enforcement of Hudood) Ordinance, 1979.
The accused in the said case appeared for sometime but absented himself on 29-3-1983.The learned trial Court issued notice to the surety (the petitioner)who sought time to produce the accused. The trial Court kept on abjourning the case from time to time for 11 months. Thereafter, the surety was forfeited in the whole amount.
It is contended by learned counsel that the trial Court has erred in law because it should have passed an order forfeiting the bond, and, thereafter a notice should have been given to the petitioner for the realisation of the amount. The learned counsel has also relied upon some reported cases. Submits that later on the accused joined the proceedings, therefore, the entire amount of surety may not have been forfeited.
2. I have heard learned counsel and perused the record. The Court was informed by the Process Serving Agency that the accused had proceeded abroad, therefore, a notice was issued to the surety.- In these circumstances,it is clear that before notice to the surety was given the Court was already apprised of the fact that the accused in the case was not available. The contention of learned counsel that the bond should have been forfeited first is without substance, because the moment notice was given to the petitioner it automatically meant the forfeiture of the surety bond.
As far as the other contentions that the whole amount should not have been forfeited has some substance especially when the accused later on did join the proceedings. In such circumstances, relying upon Dildar and another V. The State (PLD 1963 S.C. 47), I reduce the amount to be forfeited from Rs.20,000/- to Rs.5,000/-. With this reduction in the amount of surety the revision is disposed of.The file shall be sent back forthwith to the learned trial Court for necessary action.
K.L.R 1989 Shariat Cases [Lahore] Present: Rashid Aziz Khan, J.
MUHAMMAD WARIS AND ANOTHER Versus THE STATE Crl. Misc. No.Ll93-B of 1989, decided on 18th April, 1989.
Criminal Procedure Code,1898 -S.497/498- Read with Aricle 3/4 of Prohibition (Enforcement of Had) Order IV of 1979- Bail is granted to the petitioners who are facing charge for the recovery of 2 K.G. Of Heroin and 5 K.G. Of Charras on the ground that they have been found innocent during investigation-.
(Paras.2,3)
For the petitioner. ChXiaqat Ali Sindhu, Advocate. For the State: A.H.Masood, Advocate.
Date of hearing: 18th April, 1989. #tbs Sh. C.6 #the #tbs Key Law Reports ORDER #the #tbs 1989 #the RASHID AZIZ KHAN, J-Petitioners seek bail in a case registered against them with Police Station Saddar Kamoke District Gujranwala, for an offence under sections 3/4 of Prohibition (Enforcement of Hadd) Order IV of 1979, vide FIR dated 4.10.1988. The allegation against the petitioners and their brother is that they were sitting in a car which was being driven by one Mehboob Ahmed, co- accused of the petitioners. During checking, 5 K.G. Of Charras and 2 K.G. Of heroin was found lying under the seat of the car.
2. It is contended by learned counsel for the petitioners that the petitioners are innocent and no recovery whatsoever was effected from them. Submits that the occurrence as such never took place; the police has with ulterior motive involved the petitioners, therefore, during investigation conducted by the DSP, the petitioners have been found innocent.
3. I have heard the learned counsel as well as the DSP who had conducted the investigation. The D.S.P, informed me that he had thoroughly conducted the investigaion as well as recorded the statements of many witnesses from the locality wherein all of them stated that no occurrence as alleged by the police ever took place. He further informed that according to his investigation,the petitioners were sleeping inside their house.They were called out and the recovery of heroin as well as charras was planted on them. He further informed that he had recommended action to be taken against the concerned police officers who registered the case.
In these circumstances, it becomes a case of further inquiry. Therefore, the petitioners are allowed bail in the sum of Rs.30,000/- each with two sureties each, in the like amount each to the satisfaction of Assistant Commissioner/Duty Magistrate concerned.
K.L.R 1989 Shariat Cases [Lahore] Present: Muhammad Rafiq Tarar, J.
SHAUKAT ALI Versus THE STATE Bail Application No. CnMisc. Decided on 14th January, 1989. Criminal Procedure Code, 1898 -S.497/498-Bail-Grant of-Offence under Articles 10,13 & 14 of Offence of Zina Ordinance VII of 1979 and S318 PPC-Petitioners contending that the prosecutrix a woman of easy virtue kept quiet for 5/6 months and later on falsely implicating them to conceal her own sins-Further all other accused excepting them found innocent during the investigation and discharged-Two independent eye- Witnesses having sworn affidavits to the effect that such occurrence had never taken place in their presence-The remaining two being close relatives of the prosecutrix-Prosecution not controverting the submissions-Held that a case for the enlargement of the petitioners made out-Petitioners admitted to bail.
(Paras, 2 & 3)
For the Petitioners: RAAwan, Advocate.
For the State: Abdul Moeid, Advocate.
Date of hearing: 14th January, 1989.
MUHAMMAD RAFIQ TARAR, J.--This is a petition for bail on behalf of Shaukat Ali and Mushtaq Ahmad alias Jhalla Petitioners.
2. The case was registered at the instance of Mst.Surayya Bibi, daughter of Nawab,under Articles 10,13,and 14 of Ordinance VII of 1979 and section 318 P.P.C. In the FIR she alleged that 5/6 months back Mst.Surayya Begum, wife of Waris, and Mst.Sakina took her to their house where Shaukat Ali petitioner and co-accused Gulzar Ahmad alias Kala were already present. Gulzar bolted the door from inside and Shaukat Ali petitioner committed Zina-Bil-Jabr with her. She raised alarm attracting Ranjha and Ali Ahmad PWs who saw the occurrence through peep-Hole of the door .They started breaking the door when both the aforesaid accused opened the door and ran away by extending threats. She further stated that a few days after that when she was passing from the street, Mst.Surayya and Sakina again took her to a room where Mushtaq Ahmad alias Jhalla petitioner and co-accused Ejaz Ahmad were present. Mst.Surayya persuaded her to commit Zina with them, but she did not agree. Then Mst.Surayya left the room and co-accused Ejaz Ahmad bolted its door from inside. Mushtaq Ahmad removed her Shalwar and started committing Zina- Bil-Jabr with her. She cried attracting Haider Ali and Nawab. They opened the door, came inside and saw Mushtaq petitioner committing Zina-Bil-Jabr with her. On seeing them, Mushtaq ran away. According to her, Mst Surayya and Sakina had been getting money for making her available for Zina; 5/6 months prior to the registration of the case she became pregnant; on 1.9.1988 she went to village Padana where her mother was working as a midwife; lady doctor Aziza gave her injection and applied drip resulting in her abortion.
3. Learned counsel for the petitioners contends that Mst.Surayya Bibi is a woman of easy virtue; she kept quiet for 5/6 months and later on falsely implicated the petitioners to conceal her own sins. He further submits that all other accused except the two petitioners have been found innocent during the investigation and discharged; the two independent eyewitnesses, namely Ali Ahmad and Haider Ali, have sworn affidavits to the effect that such occurrence never took place in their presence; and the remaining two alleged eyewitnesses, namely, Nawab Din and Ranjha, are father and first-cousin of the prosecutrix. It is submitted that if such close relatives had in fact seen such as act being committed with the prosecutrix, they would have at once reported the matter to the police.
The learned State counsel is not in a position to controvert the submissions made by the learned counsel for the petitioners. Affidavits of Ali Ahmad and Haider Ali have been placed on the file which are to the effect that they had never seen any occurrence. On inquiry, the A.S.I, admits that Nawab Din PW is the father of Mst. Surayya and Ranjha is nephew of Nawab Din. He also admits that no action was taken against any of the other accused because in her statement under section 164 Cr.P.C. Mst.Surayya had not made any allegation against any of them.
In view of the above circumstances, I feel inclined to the view that a case for the enlargement of the petitioners is made out.I therefore, admit them to bail in the sum of Rs.10.000/- each with two sureties each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Lahore Cantt.
K.L.R 1989 Shariat Cases [Lahore] Present: Rashid Aziz Khan, J, SIRAJ DIN Versus THE STATE Crl.Misc. No.2928/B of 1988, decided on 9th January, 1988. Criminal Procedure Code, 1898 -Ss.497/498-Bail grant ofOffence u/Ss 307/326/364/ 148/149 PPC read with Ss 14/11/79 & 11/7/79 (Islamic Law) against petitioner and 14 others- Petitioner seeking bail only on the ground of old age and illness-He being about 60 years of age and suffering from chronic heart disease as reported by Medical Sudt: Distt: Hospital-Even the Medical Board, as constituted, gave opinion that the petitioner suffering from hypertension and hypertensive heart disease-Held as the petitioner cannot be treated in the hospital he is admitted to bail.
(Paras, 1 & 2)
1979 SCMR 320 .... Relied For the Petitioner. Sardar Muhammad latif Khan Khosa and Ch. Muhammad Iqbal, Advocates.
For the State: Hanif Zahid, Advocate.
Date of hearing: 9th January, 1988.
RASHID AZIZ KHAN, J.-A case under sections 307/326/ 364/148/149 PPC read with sections 14/7/79 and 11/7/79 (Islamic Law) stands registered against the petitioner and 14 others with Police Station Mustafabad, District Kasur. The allegations as contained in the FIR lodged by Muhammad Din are that his son Mukhtar Ahmad had abducted one Mst.Sughran Bibi daughter of Irshad and thereafter married her. For the last 4/5 years the said Mukhtar Ahmad had come back to the village along with his wife and children and started living there. The said Irshad, his sons and other relatives were annoyed with Mukhtar Ahmad for having abducted Mst.Sughran Bibi therefore they wanted to take revenge. On 23-1*1988, at about 730 P.M., the first informant along with his sons Mukhtar Ahmad, Muhammad Sale and daughter-in-law Mst3ughran Bibi along with another were sitting in their house. AD the accused armed with different weapons except for Sharaf Din petitioner who was empty handed came to the house of the first informant. On seeing the assailants Mukhtar Ahmad tried to run away but was caught by Sharaf Din and DU Muhammad, Thereafter, Muhammad Din and Nawab Din petitioner gave sota blows on the person of Mukhtar Ahmed whereupon he fell down. The assaUants caught hold of MsLSughran Bibi and her daughter and thereafter started fiijng with their fire-arms threatening that anybody who came near them would be done to death.
Irshad co-accused of the petitioner is alleged to have asked the other assaUants that Mukhtar Ahmed should be made Mind. Irshad and Siraj with their dagger and knife respectively injured the eyes of Mukhtar Ahmed and then left the scene of occurrence along with Mst.Sughran Bibi and her daughter.
2. The baU is being sought only on the ground of old age and illness. The report from Medical Superintendent, District Headquarters Hospital, Kasur, was obtained with regard to the age and illness of the petitioner. The said repoet was received and perused according to which the petitioner was about 60 years of age and was suffering from Chronic Heart Disease. Thereafter a direction was given that a Board be constituted for the examination of the petitioner. Hie said Board was accordingly constituted which examined the petitioner and gave the opinion that he was suffering from hypertension and hypertensive heart disease. Both the reports are unanimous that the petitioner is suffering from heart disease and need hospitalization for proper treatment.
Since the petitioner is suffering from heart disease and the same cannot be adequately treated in hospital. Relying upon Haji Mir Aftab V. The State (1979 S.C.M.R. 320), I aDow baU to the petitioner in the sum of Rs.30,000/- with two sureties each, in the like amount, to the satisfaction of Assistant Commissioner /Duty Magistrate, Kasur.
K.L.R.1989 Shariat Cases [Lahore] Present:GvA Muhamiqad Khan C. J.
SHAH JEHAN Versus THE STATE Criminal Appeal No. 250/L of 1988, decided on 6th December, 1988. Criminal Procedure Code, 1898 -S.410Offence under Art 4 of the Prohibition (Enforcement of Hadd) Order 1979-Appellant convicted thereunder and sentenced-The same challenged-Contention being that as the offence under the said Art. Was not cognizable by the police when committed at a {dace which which was not public the investigation, prosecution as well as the conviction was. Bad in law- Held that investigation has nothing to do with the jurisdictioa or the authority of the competent trial Court to decide a criminal case-Further held that if it shoen that the accused was in any way prejudiced in the drcumstaaces of a case because of that illegal investigation an interference would be justified.
(Paras, 2,10 & 13)
1983 PCr LJ. 102, 1968 PCr LJ. 97, 1964 (WP)Kar 318, PLD 1965 BJ-12, 1980 PCr. LJ. 742, AIR 1959 All-82, AIR 1955 SC 196, AIR 1964 SC 231, refer For the appellant: Abdul Majeed, Advocate.
For the State:Hafiz Ghulam Bari, Advocate.
Date of hearing:29tb November 1988.
GUL MUHAMMAD KHAN, CJ.--The appellant was convicted by the learned Sessions Judge, Kasur, under Article 4 of the prohibition (Enforcement of Hadd) Order, 1979, vide his order dated the 27th of June, 1988, and sentenced to two years' R.L, with whipping numbering ten stripes and a fine of Rs.
2,000/-.In default of payment of fine he was to suffer three months'RJ., further. He has challneged the conviction and th$ sentences through the present appeal.
2. The occurrence took place on the 6th of October, 1987 at 8.00 A.M. The complainant Ghulam Bari, S.H.O., P.W.1 along with Police officials and Muhammad Jamal Din, excise Inspector were present at Chowk Shaheedan, Kasur, when the present appellant while under arrest disclosed that he had placed some more herkw < I his 'khata' of power loom and that the same he could get recovered.
Consequently, he took the police and the Excise party to the stated place where.' he get recovered from small window a polythene envelope containing l2 grams of heroinA sample of two grams was taken for chemical analysis and the two quantities were sealed into separte parcels. Subsequently, the sample-parcel was sent to the Chemical Examiner whose result thereon Ex.PD, was that it contained heroin. A case was registered on the day of occurrence at 6.45 P.M., by Imdad Hussain, MHC, P.W.2 on a report lodged by Ghulam Bari, PW.1.
3. The prosecution procduced at the trial five witnesses in support of its case. Imdad hussain, MHC, PW.2 deposed that he recorded the first information report on the complaint received by him and also kept parcels in his safe custod\. Pervaiz Iqbal. Foot Constable, P.W3 deposed that he received the sample-parcel from Imdad Hussain, M.H.C., P.W.2 and took it to the Chemical Examiner. On merit the case of the prosecution is supported by Ghulam Bari,S.H.O., PW.1, Niaz Ahmad, A.S.L, P.W.3 and Jamal Din Excise Inspector, PWA. They were all members of the raiding party. They had heard the appellant volunteer to get recovered the contraband material and later did so in theirpresence.
4. The appellant in his statement under set ion 342 Cr.P.C., denied the allegation made against him and stated that he was innocent and involved due to enmity. He, however, did not explain the same. He also produced three defence witnesses. All the D.Ws stated that the appellant did not own any power looms at the time of occurrence. It was further stated that he was a person of good character.
5. The leamed counsel has taken me through the entire evidence on the record but is not in a position to point out any conflict, contradiction or discrepancy which might helpt his client. He then raised a technical objection saying that as the offence under Article 4 was not cognizable by the police when committed at a place which isnot public, the investigation, prosecution as ewll as the conviction is bad in law. He relied on 1983 P.Cr. LJ 102 and 1968 P.Cr. LJ. 97 in support of pis case.
6. In Mst. Mumtaz Begum and 4 others Vs. The State (1968 P.Cr.L.J 97) where the trial was being conducted by a Magistrate on a complaint by a police Officer in respect of a non-congnizable case, a leamed single Judge of the High Court queshed the proceedings. The view expressed was that the investigation done by the Sub-Inspector, without obtaining permissin of the Magistrate could not be the basis of a report, and could neither he cafied a complaint under clause (a) of section 190 Cr.P.C. Another leamed single Judge in Hussain Javeri Vs. The State ( 1983 P.Cr. LJ.
102)also queshed the proceedings lodged under Article 4 of the Sind Prohibition Ordinance 1978. It will be semi that one of these cases had matured in conviction and were yet at the trial stage so as to cure the illegality. A similar view was taken m Muhammad Unhid Vs. The State ( PLD 1964 (FW)
Kar. 381 by another learned single Judge. In all the above cases the proceedings were before the trial Courts which were quashed.
7. The other view taken bya Division Bench in Mst. Sadan Vs. The State ( PLD 1965 Bagbdad-UWadid l2 is as undert- *1116 investigation by the police is an antecedent proceeding.
It dose not serve as the foundation-stone not as a sine que nonof a valid trial in Court A Police Officer, who investigates mi offence which hw is not empowered fo investigate or makes an arrest where he is not st> empowered may find himself in difficulty during investigation if he is defied or resisted, and the law may not give him any protection, or he ay make himself lible to criminal or civil action in certain circum-stances, but k is difficult to see why this disability should attach kesif to the proceedings in Court prevent a Court of law from taking cognizance of the offence on a report submitted by hum under clause (a) or (b) of section 190 of dm Code of Criminal Procedure or prevent a Court from assessing &e value of evidence placed before k in the absence of atiOar canctment, express or implied, preventing the Court from doing so.Theere isnothiag in law to prevent a police officer from making a complaint in a case of which the facts have come to his knowledge and which he cannot investigate. In any case, the jurisdiction of a Court cannot be outsed merely because a report was submitted by a police officer who was not authorised to investigate."
8. A learned single judge of the High Court in Muhammad ASLAM Vs. The State (1980 P.Cr.LJ. 742) after surveying almost the entire case law on the point, made the following observations:- "I now tum to the submissions made by the leamed counsel for the petitioner and the state as regards the question whether the investigation of a non-cognizable offence by a police officer not authorised under section 155(2), Cr. P.C., to do so, prevents the COurt from taking cognizance of the offence on the report submitted by such officer or renders the subsequent trial illegal. I need not labour on those question as they have been decidedby a Dicision Bench judgment of the High Courtof west Oakistan in Mst. Sadan vs. The State (1), which judgment is binding on me. In this authority, it was held that a police report in a non- cognizable offence, which the police officer had not been duly ordered by a Magistrate to investigate couls be treated as a report falling under clause (b) of sub-section (1) of section 190 of the Criminal procedure Code or, in the alternative, as a complaint, falling under clause (a) of subsection of the same section. It was also held in this case that the mere irregularity in the investigation of the case by the police officer who was not authorised to investigate the same, did not effect the legality of the trial. The Crown v. Mehar Ali(2) was also followed in this respect. The two rulings cited by the leamed counsel for the petitioner, namely, Mst. Razia v. The tate and Muhammad Yaqub v. The State (3), do not, therefore, correctly lay down the law, In Mst. Raziz's case, which is a Single-Bench judgment of this Court, the attention of the learned Judge was not deawn to Mst. Sadan.s case. Likweise, in Muhammad Yaqoob^ case, which is a Single Bench decision of the Sind High Court, the attention of the leamed judge was not drawn either to Mst. Sadan's case or to the other decision of that Court e.g., Shah Abdul Majid v. The State (4), Walizad v. State (5) and Mami V. The State (6). Therefore, following the view taken in Mst.Sadan's case, I hold that the challan by the police officer in the present case can be treated both, as a report of a police officer or a complaint under clause (b) or clause (a) of sub-section (1) of section 190 of the Criminal procedur Code and that the cognizance of the same by the Magistrate cannot viriate the trial before him."
9. The Indian Court also, on the same point, have taken the same view in AIR 1959 Allahbad 82.
Relying on A.I.R 1955 S.C. 196 it was held that even if the investigation is defective or illegal, cognizance could still be taken by the magistrate under section 190 of the Code of Criminal Procedure. The observations of the supreme Court relied upon were as under: - "A defect or illegality in investigation, however, serious has on direct bearing on the competence or the procedure relating to cognizance or trial. Nodoubt a police report which result from an investigation is provised in section 190 Cr. P.C, as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance."
Again, in Air 1964 S.C. 231, the COurt observed that though no police Officer at the rank of Deputy Superintendent of police should investigate under section 5 (a), yet if there was a conviction the irregularity or illegality in the matter of investigation could be relied upon if it was shown that any prejudice had been caused to the accused in his defence.
10. I am in respectful agreement with the D.o.View taken in the case of Sadan referred to in para 7 above The fact whether an offence is cognizanle or not is directly concerned with the source of power authorising the police to investigate or to refrain from it. So if a police officer investigated a non-cognisable case without an order from a Magistrates etc. The commits an illegality which may expose him to offences like trespass, assault, illegal confinement etc. Again, his report tothe Magistrate dose not oblige the Magistrate to take cognisance. A Magistrate, on the other hand, has other basis also as given in section 190 to take cognisance of a case and . Therefore, to proceed to try the case not on basis of a police report or the facts of investigation but the sworn testimony before him of the witnesses. Thus it was rightly held in the case of Mst. Sadan and Muhammad Aslam that investigation has nothing to do with the jurisdiction or the authority of the compent trial Court to decide a criminal case. But if it is shown that the accused was in any way prejudiced in the circumstances of a case because of that illegal investigation an interference mil be justified. The higher Courts may also in appropriate cases interfere at the trial stage to correct any illegality or irregujarity which might prejudice the rights of the accused.
11. The leamed counsel the referred to section 103 Cr. P.C., and stated that as its requirements were not fulfilled the conviction is bad in law. Undoubtedly, section 103 provides a very important safeguard for the accused persons against te possible chicanery and concoction ont he part of delinquent investigation Officers but according to the established position of law mere non- compliance of it does not vitiate the proceedings. A Division Bench of the Lahore High COurt in Mala etc. Vs. The State(PLD 1964 (W.P) Lah. 58 held that the mere fact that the recovery witnesses did not belong to the locality would not vitiate the trial. Thus the defence in order to succeed must show that there was either miscarriage of justice or the accused was prejudiced in his trial or sefence.
12. In the case in hand the 'khata' was not serached by the police. The evidence on the record rather is that the accused himself recovers the contraband material from a window of his that and produced it before the PWs who had accompanied him. No. Contradiction discrepancy in the statements of the PEs is there. In this view of the matter, on interefer is called for.
13. The result isthat there is no merit in this appeal and the same is, therefore, dismissed.
K.L.R 1989 Shariat Cases [Lahore] Present: Sajjad Ahmad Sipra, J.
MST. RIAZ ELAHI ETC. Versus GHULAM MUHAMMAD AND OTHERS W.P. No.l23-89/BWP, decided on 14th February, 1989.
Constitution of Pakistan, 1973 -Art. 199- Registration of FIR against Petitioners-U/Ss 10&11 of Offences of Zina (Enforcement of Hadood) Ordinance 1979-Quashment of- -Contended that one Ghulam Mohammed father of petitioner No.1 and father-in-law of petitioner No.2 disclosed to the petitioners-Husband and wife that out of anger against them he had filed an allegedly false complaint under the said Ordinance-Even counsel for the State requesting for quashment adding that an appropriate action in accordance with law may be directed to be initiated against the complainant-respondent No.2"Held that- In view of this statement the F.I.R.As impugned is hereby quashed-Further held- That appropriate action to be initiated against respondent No.2 for having made a false accusation and for having lodged a false complaint.
(Paras, 1,3 & 6)
For the Petitioner: Malik Muhammad Aslam, Advocate.
For the State: Ch. Abdul Nabi, Advocate.
Date of hearing: 14th February, 1989.
Sajjad Ahmed Sipra, J.- The petitioners have filed this writ petition to have the F.I.R.No.226/82 dated 31.7.1982 registered at P.S Hasilpur, District Bahawalpur,u/ss 10/11 of offences of Zina (Enforcement of / Hadood) Ordinance, 1979.
2. The petitioners contended that their marriage took place in November, 1981 and thereafter they have been living as husband and wife at Karachi. During this period they became parents of three children. That in 1 February, 1987 the petitioner No. 1, the wife, left the petitioner No.2, the husband, with the children and came over to the house of her father in Bahawalpur, and thereafter filed a suit for maintenance against her husband, petitioner No.2, but the same was withdrawn on a compromise and reconciliation between the petitioner No.1, and petitioner No.2, vide order dated 16.4.1988 of the learned Senior Civil Judge, Bahawalpur.
3. It is contended that some 20 days before filing of the petition one Ghulam Mohammad father of petitioner No.1, and father-in-law of petitioner No.2, disclosed to the petitioners that out of anger against the petitioners he had filed an allegedly false complaint u/ss 10/11 of Offences of Zina (Enforcement of Hadood) Ordinance, 1979. The said F.I.R is No.226/82 dated 31.7.1982 of P.S Hasilpur District Bahawalpur which is sought to be quashed through this petition.
4. Notice was issued to the respondent No.2 for today i.e. 14.2.1989. Ghulam Mohammad s/o Allah Jiwaya respondent No.2 has put in appearance and states as follows:- "That petitioner No.1 Mst. Riaz Elahi is my daughter, and petitioner No.2 Bakhu is my son-in-law, married to petitioner No.1, Mst.Riaz Elahi,my daughter. They were married with my consent and approval some 8/9 years ago.The petitioners are parents of 4 children from this marriage. At present they are residing with me. I had got the F.I.R No. 226/82, dated 13.7.1982 registered at P.S Hasilpur, District Bahawalpur, u/ss 10/11 of Offences of Zina (Enforcement of Hadood) Ordinance, 1979 and had only informed the petitioners about one month back of having the said F.I.R No.226/82, registered at P.S Hasilpur about 7 years back."
The Court put a question to him which is as follows:- "Whether or not you had made a false complaint as recorded in the F.I.R No.226/82,dated 31.7.82 and which is the subject matter for quashment through the present writ petition?"
The respondent No.2 Ghulam Mohammad s/o Allah Jiwaya replied as follows:- "The said F.I.R was a false one as it was not based on truth."
4. The learned counsel for the State submits that in view of the statement of the respondent No.2 Ghulam Mohammad s/o Allah Jiwaya,the F.I.R in question namely F.I.R No,226/82 dated 31.7.82 u/ss 10/11 of Offences of Zina (Enforcement of Hudood) Ordinance, 1979 registered at P.S Hasilpur, District Bahawalpur may be quashed, and it is further requested by the learned counsel for the State that an appropriate action in accordance with law may be directed to be initiated against the respondent No.2 herein for having lodged a false allegations u/ss 10/11 Offences of Zina (Enforcement of Hadood) Ordinance, 1979.
5. The leamed counsel for the petitioners undertakes to place on record today the affidavit of the respondent No.2 in respect of the statement made by him and recorded herein above.
6. In view of the statements of the respondent No.2 Ghulam Mohammad s/o Allah Jiwaya and the leamed counsel for the State recorded herein above, the F.I.R No. 226/82 dated 31.7.1982 u/ss 10/11 Offences of Zina (Enforcement of Hadood) Ordinance, 1979,P.S Hasilpur, District Bahawalpur against the present petitioners is hereby quashed. It is further directed that the appropriate action against the respondent No.2 may be initiated for having made a false accusation u/ss 10/11 of Offences of Zina (Enforcement of Hudood) Ordinance 1979 vide F.I.R No.226/82, dated 31.7.1982 and for having lodged a false complaint.
K.L.R 1989 Shariat Cases [Peshawar] Present: Muhammad Bashir Khan Jehangiri, J.
GHULAM FAREED Versus .
THE STATE Cn Misc. No.186 of 1988, decided on 18th January, 1989 Criminal Procedure Code, 1898 ' -Ss.497/498-Case under Articles 3&4 of the Prohibition (Enforcement of . Hadd) Ordinance 1979- Registration of- Bail- Application therefor-Petitioner contending that the search of his person made in violation of S.103 Cr. P.C. Conversely Prosecution while opposing the plea of bail contending that no material against the police officials has been brought on reocrd to substantiate the plea of mala fide- 15 grams of heroin having been recovered from the Petitioner's possessioh he was not entitled to the concession of bail - Held that: from the tentative assessment of the evidence the case of,.The Petitioner not fit for bail-The application for btiil-Further held- Dismissed- (Paras, 2 4 & 7)
PLD 1980 Pesh 119, PLD 1972 SC 277,1986 PSC 511 and PLD 1984 SC FC 178, referred.
For the Petitioner: Zafar Abbas Zaidi.
For the State: A.A.G Date of hearing: 18th January, 1989
MUHAMMAD BASHIR KHAN JEHANGIR!,*-- This is an application for bail on behalf of Ghulam Farid petitioner.
2. Briefly stated facts of the prosecution case are that on 16.7.1988 at 1850 hours during a routine checking of vcnicular traffic near Police Station Ghoriwala, District Bannu, Hameedullah A.S.I, stopped Bus No. DNS-2355 bound for Multan; conducted the personal search of its passengers, which led to the recovery of 15 grams of heroin from the person of Ghulam Farid alias Bindi. It was secured through usual recovery memo. The accused was arrested and a case was registered under Articles 3/4 of the Prohibition (Enforcement of Hadd) order, 1979 (hereinafter called as the Order) was registered.
3. S.Zafar Abbas Zaidi, learned counsel for the petitioner contended:- Firstly, that the search of the person of the petitioner was in violation of the mandatory provisions of section 103-of,lh.e Code of Criminal Procedure and placed reliance on Ahad Sher Vs. State PLD 1980 Peshawar 119; Secondly, that the contraband powder was admittedly weighed with 21 pieces of the wrapping paper which then "dghed 15 grams that it was resorted to with a view to bring the Case of the the petitioner within the mischief of second Proviso to Article 4 of the Order which would in turn attract the prohibitory clause of sub-section (1) of section 497 Cr.P.C and; Lastly, relying on the observations of the Supreme Court in Amin Vs.The State (PLD 1972 Supreme Court 277) that even for the purpose of bail, law is not to be stretched in favour of the prosecution.
4. Mr.Ejaz Muhammad Khan, the learned Assistant Advocate General, has opposed the pica of bail advanced on behalf of the petitioner and contended that no material against the police officials in this case had been brought on the record to substantiate the plea of mala fide. He submitted that 15 grams of heroin was recovered from the petitioner's possession on routine checking and that, therefore, legally he was not entitled to the concession of bail. He repelled the concention of the learned counsel appearing on behalf of the petitioner and referred to Shah Nawaz...Vs..State (1986 P.S.C.511) (Federal Shariat Court) and Muhammad ShahVs..State PLD 1984 S.C.178 (Shariat Appellate Bench) wherein it has been observed that a bare reading of section 103 ibid would make it crystal clear that it refers to search of places and not of persons.
5. The first contention raised on behalf of the petitioner that provisions of sub-section(l) of section 103 ibid is equally applicable to the search of persons is ex facie not tenable. The latest view which confirms the one in the two procedcnts cited on the proposition has been expressed by the Sharial Appellate Bench of the Supreme Court in Malik Aman..Vs..State (1986 S.C.M.R.17) wherein it has been observed that in a case of search made in bus by a constable, section 103 ibid would not be attracted.
6. The contention of the learned counsel for the petitioner that the inclusion of 21 wrappings of paper in wighment of the heroin was mala fide with a view to increase the weight and that the circumstance as how two grams of heroin sent for chemical examination turned out to be only one gram cannot be considered at this stage, lt would be for the trial Court to examine this aspect of the case.
7. From the tentative assessm ent of the evidence, I am of the view that case of the petitioner is not fit for bail. Prima facie the offence falls within the prohibitory clause of sub-section (1) of section 497 Cr.P C. 1 he application is, therefore, dismissed.
K.L.R 1989 Shariat Cases [Lahore] - Present: Sardar Muhammad Dogar, J.
MUHAMMAD JAMIL Versus THE STATE Crl. Misc. No. 1516/B 1989 decided on 27th May, 1989.
Criminal Procedure Code, 1898 --S.497/498-Case u/S.18 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979-Bail- Seeking of by the Petitioner-The informant in her statement u/S.164 Cr.P.C, later exonerating the Petitioner of the charge of attempt to Commit zina-Convcrsely the State counsel submitting that according to his instructions the statement was made out by the informant under coercion-Such a statement having errupted serious trouble in the family as a result of which the husband of the informant had sent her a notice for divorce-Held-that Such reason not advancing the case of the prosecution to refuse the bail to the Petitioner-Bail allowed.
(Paras, 3,5)
For the Petitioner: M.D. Tahir, Adviocate.
For the State: D.I Muhammad Tarar, Advocate.
Date of hearing: 27th May, 1989.
SARDR MUHAMMAD DOGAR, J.-Practitioner seeks bail in the; case registered against him under section 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Phokalian, Distt. Sialkot.
2. According to F.I.R, the petitioner had, per his own request, stayed as a guest for the night in the house of the complainant and during night had attempted to commit zina with her. In that, it is alleged in the F.I.R, that he had moved on to the cot of the complainant and had not only tried to open the string of her Shalwar but had also pulled her breast.
3. It is contended on behalf of the petitioner that he has been involved falsely in this case and that the informant in her statement made later under section 164 Cr. P.C. Has exonerated him of the charge of attempt to commit zina.
4. Learned counsel for the State has not denied the factum of statement made by the informant.
He has, however, submitted that according to; his instructions that statement was made under coercion. He has not produced any document in support of the said contention.
5. If that was so, the Investigating Officer could have recorded the statement of the informant in the daily diary register and produced the same in court. The contention of learned counsel for the State that -is a result ol the statement made by the informant, serious trouble has erupted in the family as a result of which her husband has sent her a notice for divorce, in my view does not advance the case of the prosecution to refuse bail to the petitioner.
For the reasons enumerated abvoe, a case for bail appears to have been made out. This petition is, therefore, allowed and the petitioner is directed to be released on bail provided he furnishes bail bond in the sum of Rs. Twenty thousand with one surety in the like amount to the satisfaction of the Assistant Commissioner, Sialkot.
K.L.R 1989 Shariat Cases [Lahore;!
Present: Munir Ahmad Shaikh, J.
NASREEN BEGUM ETC. Versus THE STATE Crl. Misc No. 199/B of 1989, decided on 21st January, 1989.
Crimiial Procedure Code, 1898 -Ss.5Cl-A~i Offence u/Ss. 10&11 of the Offence of Zina (Enforcement of Hado*d) Ordinance 1979-Read with S.14 of Offence Against Property and S.380 PPC-Bail-Seeking of-Petitioners arguing that as a matter , of fact Petitbmer No.1 married Petitioner No.2 with her own free will-She being of the Jge of 25 years-Further contended that this marriage being against the. Wishis, of the complainant who wanted to marry her with the son of his sister- -Hethus wanted to take revenge, insult and humiliate them-Held that The invdvement of all the family members of alleged in-Laws of Petitioner No.1 prina facie giving strength to the plea of the Peitioner that all of them had been tried to be involved with some molive-Further held That this being a case of further inquiry the pre-arrest bail already granted to the Pi1 >iioncrs confirmed.
(Paras, 1 4 & 7)
For the Petitioner: Amanat Ali Rokhari, Advocate.
For the Complainant: Ata Ullah Mirza, Advocate.
For the State: KhJShaukat Ali, Advocate.
Date of hearing: 21st January, 1989.
Munir Ahmad Shaikh, J.- Through this application petitioners' seek bail before arrest in a case registered under Sections 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, read with Section 14 of Offences Against Property and Section 380 PPC agajnst the petitioners as also one Mst. Parvecn sister of petitioner No.1 and Qamar husband of said Mst.Parveen.
2. F.I.R, has been recorded at the instance of Sawab Gul who is father of petitioner No.1. According to FIR petitioner No.1 was engaged with the sister's son of the complainant. A room in his house was rented out to one Muhammad Qamar and Mst. Parvecn Akhtar daughter of Muhammad Shafi. Laiq Ahmad who is brother of said Parvecn Akhtar had been visiting her said sister and brother-in-law in the said room. It is alleged that this Laiq Ahmad developed illicit relations with her daughter Mst.Nasreen Akhtar who is petitioner No.1 about which he did not have the knowledge. When he entertained the doubt he got the said house vacated from said Mst. Parvecn Akhtar. On account of this vacation of house they were not happy and threatened him that they would take revenge for humiliation caused to them. On 6.12.1988 the complainant was absent from his house and had gone to attend his duties in service. His wife alongwith her three daughters went to her married daughter namely Mst.Nasim Akhtar in the house of her-in-laws and left behind, his son Muhammad Shahid and petitioner No.1. At about 11.00 A.M. Muhammad Laiq petitioner No.2 along with his step mother. Mst.Shamim Akhtar and sister Mst. Parveen Akhtar as also his brother-in-law Muhammad Qamar came to his house. Kuhammad Laiq and Muhammad Qamar stood outside the house whereas Mst.Shamim Akhtar and Mst.Parveen Akhtar came in the house. On their asking his daughter Mst.Nasreen Begum took an amount of Rs.27348/ present in the house and golden ornaments details in the F.I.R, as also the garments and went with them. When his son Shahid Gul present in the house who was 8/9 years old asked her as to where they were going, Msf.Shamim and' Parveen told him that they were going in connection with giving garments for Karhai.. When they both along with Mst.Nasreen came out of the house the said Shahid Gul also followed them where he saw that in the street Muhammad Laiq and Muhammad Qamar were also standing who took away petitioner No.1 Mst.Nasreen Begum. He followed them upto the road when he saw that a Suzuki Pick Up was standing on the road in which Muhammad Shafi father of Laiq and Muhammad Zaki brother of Laiq were silling. They p.1 Mst.Nasreen Begum in the sad Pick Up and went away.
3. According to the complainant the matter was brought to the notice of member union council who intervened but neither petitioner No.1 was returned to him nor the said money and the golden ornaments allegedly ' taken away by Mst.Nasrecn Begum. .
4. Learned counsel for the petitioners argued that as a matter of fact Mst.Nasrecn Begum petitioner No.1 married petitioner No.2 with her own free will and that she was of the age of 25 years and being major could contract marriage under the law. According to him due to this marriage against the wishes of the-complainant who wanted to marry her with the son of his sister he wanted to take revenge, insult and humiliate petitioners No.1 and 2 and a mala fide and false case has been lodged involving the entire family of in-laws of petitioner No.1 so as to teach them lesson.
5. . Rashid Ahmad SHO P.S. Shalimar, is present with the record. During investigation statement of petitioner No.1 has been recorded who denied that she was abducted. She stated that she married petitioner No.2. Member of union council has also been examined who has supported the case of the complainant to the extent that he was approached by him and the matter could not be settled.
The complainant has also been examined. The evidence so far collected by the Investigating Agency has not brought anything on the record as to how and in what connection an amount of more than Rs.27,000/- was present in the house and that too not under any lock and key. Th'c involvement of all the family members of alleged in laws of Mst.Nasrecn petitioner No.1 prima facie gives strength to the plea of the petitioner that all of them have been tried to be involved with some motive. It is in the F.I.R, that petitioner No.1 was engaged to the son of the sister of the complainant which gives rise to a suspicion as pleaded by the learned counsel for the petitioner, that it might be a case of taking revenge. It was not denied that petitioner No.1 is major. She claims to have married petitioner No.2/A photo copy of nikahnama has been placed on the record.
6. Learned counsel for the complainant submitted that this nikah allegedly took place in Karachi which is doubtful. I am not called upon to express any opinion on the merits of the case so that it may not prejudice the investigation as also the trial of the case. The deeper analysis of the evidence to be produced by the prosecution shall be made by the trial Court at the time of disposal of the main case. Suffice it to say that from the facts and circumstances and the material brought on the record so far it cannot be said that it establishes beyond reasonable doubt that the petitioners are guilty of an offence punishable with death or imprisonment for life. This is a case where further inquiry is required.
7. For the foregoing reasons the pre-arrest bail already granted to the petitioners on 15.1.1989 is hareby confirmed. The criminal miscellaneous is disposed of.
K.L.R 1989 Shariat Cases [Peshawar] Present: Muhammad Bashir Khan Jehangiri, J MUHAMMAD AYUB ETC Versus THE STATE Cn Misc. No.Ll of 1989, decided on 22th February, 1989 Criminal Procedure Code, 1898 Ss. 497/498-Case U/S. 377 PPC read with Art.12 of Zina (Enforcement of Hudood) Ordinance 1979- Bail-Seeking of by the Petitioners- I.O.In his fresh investigation also finding the accused to be innocent-Petitioners contending that occurrence being of pitch dark in the dead of night they were charged on mere suspicion-There being patent inconsistency between ocular evidence of the first informant, the victim of sodomy and the medical evidence-Held that the allegations in the FIR coupled with earlier statement u/s,164 Cr.P.C, of the victim and the medical evidence in the shape of report of the Chemical Examiner do not support the finding of the I.O.-Further held That this being so they are not entitled to derive benefit of the opinion of the I.O. Qua their innocence when there appeared reasonable grounds for believing that they had been guilty of the offence of abduction and subjecting the boy of 16 years to sodomy- Application for bail dismissed.
(Paras, 10 & 14)
1984 SCMR 521 PU 1974 SC 40 AIR 1932 LAH 254(1)....... Refer For the Petitioner: H.Sadullah Khan, Advocate.
For the State: Hamesli Gul Khan, Advocate.
Dale of hearing: 22th February, 1989
' Muhammad Bashir Khan Jehangirij.- Muhammad Ayub and 4 others petitioners seek bail in a case under section 377 P.P.C read with Article l2 of Zina (Enforcement of Hudood) Ordinance, 1979.
2. Brief facts of the case are that Amir Shah lodged on 28.4.1988 at 02.30 hours a report in Police Station Nourang, District Bannu, that on 27.4.1988 at about 9.00 a.m Abdur Riaz and Mirza Ali had hired his Suzuki pick-up for Eid shopping. While returning from Bannu the petitioners intercepted their vehicle and after giving beating to the first informant and Abdur Riaz, caught hold of Mirza Ali a boy of 16 years and abducted him in their Suzuki Car. The local police investigated this case under sectacn 156 Cr.P.C. On 29.4.1988 at 14.10. Mirza Ail appeared before the local police and narrated the circumstances leading to his abduction and also for committing sodomy with him by Ayub and Mirullah Jan petitioners. His statement was recorded by a competent Magistrate under section 164 Cr.P.C, wherein the victim of sodomy charged all the petitioners for abduction with common intention of all and Muhammad Ayub and Mirullah Jan for committing sodomy. During medical examination anal swabs were sent to Chemical Examiner at Lahore which had confirmed the allegation of the complainant. Consequently the plea of bail by Muhammad Ayub and Mirullah did not find favour with the Illaqa Magistrate and the Additional Sessions Judge in the First round. Thereafter Mirza-Ali the victim of sodomy and Amir Shah, the first informant, were again produced before the Illaqa Magistrate who again recorded the statement under section 164 Cr.P.C. In these statements it was asserted that the persons who had intercepted the Suzuki pick-up and had committed sodomy with the victim had muffled their faces. The Investigating Officer in his fresh investigation also found the acouscd to be innocent. ]3. In this second round, the petitioners having failed to secure bail from the forums below have come up to this Court.
4. Mr. Saadullah Khan Miankhel, the learned counsel for the petitioners, in support of this bail application contended that the occurrence being of pilch dark in the dead of night, the accused- petilioni r have been charged on mere suspicion and that there is patent inconsistency between ocular evidence of the first informant, the victim of sodomy and the medical evidence. He also submitted that the Investigating Officer has also found the petitioner to be innocent and that in view of the dictum of their Lordships of the Supreme Court in Amir Ali versus the State (1984 S.C.M.R 521) the petitioners were entitled to the concession of bail.
5. The learned counsel appearing for the State while opposing the application submitted that in view of earlier statement of Amir Shah contained in the F.I.R and that of Mirza Ali (PW) recorded under section 164 Cr.P.C their subsequent statements under section 164 Cr.P.C, are devoid of any evidentiary value qua the claim of innocance set up by the acuscd- petitioners. In so far as the opinion of the Investigating Officer qua the innocence of the accused- petitioners was concerned he submitted that Amir Ali;s case has distinguishing features and cited Iqbalur Rehman versus State (P.L.J. 1974 S.C. 40) wherein their Lordships of the Supreme Court were pleased to observe as under:- We find that the first information report clearly asserts that Iqbalur Rehman was present as a member of the unlawful assembly that he fired with his gun at Yaqub alias Leela who was hit and died instantaneously. It was stated on behalf of the complainant as well as the State that these allegations in the F.I.R., which were made as a dying statement by the dccascd Muhammad- Khalid have been supported by the prosecution witnesses. In the presence of these allegations and the supporting evidence the High Court was right in observing that the opinion of the Investigating Officer regarding the innocence of Iqbalur Rehman or his absence from the place of occurrence at the relevant time could not justify the grant of bail at this stage. The plea of alibi put forward by him and supported by several residents of the locality, would have to be examined at the proper time by the trial Court. It could not therefore be said that there were "no reasonable grounds for believing that Iqbalur Rehman was guilty of an offence punishable with death or transportation for life. The High Court was therefore right in refusing bail. Petition No.317 of 1973 is therefore dismessed."
6. From the respective stands taken up by the learned counsel for the petitioners and the learned Advocate appearing on behalf of the State the following two propositions have emerged for determination:-
1. Whether the accused-petitioners would be entitled to the concession of bail on two sets of contradictory statements of PWs both recorded under section 164 Cr.P.C or one contained in the F.I.R and the one subsequently recorded under section 164 Cr.P.C.?
2. Whether the accused-petitioners are entitled to bail on the opinion of Investigating Officer that they were innocent?
7. I have been able to lay my hand on an old case cited as Sajawal versus Emperor (A.I.R 1932 Lahore 254) (1) wherein Dalip Sing,J. Did not approve of the somersault of the two approvers examined twice under Section 164 Cr.P.C in the following words:- There can be no doubt that the two statements are contradictory, and in my opinion the defence have failed to prove that the statement made before Mr.Maheen (a Magistrate) were extorted by police torture either to themselves or to their womenfolk. At the same time it has been held by the Full Bench of Bombay High Court that a statement under section 164, Criminal Procedure Code is not evidence in a stage of judicial proceedings within the meaning of Ex.1.2 section 193."
8. It is also now almost settled that statement under secftion 164 Cr.P.C cannot be treated as substantives piece of evidence unless the a'accused had the opportunity to cross exemine the maker practice, recorded lest a witness should resile from his statement at a later stage of the judicial proceedings. These statements can be used by the accused at the stage of trial either to corroborate or contradict a witness and nothing more. Consequently if the accused-petitioners in this case are apt to place reliance on the subsequent statement recorded under section 164 Cr P.C the prosecution can equaly rely on the similar earlier statement also recorded under section 164 Cr.P.C. I must therefore hold that in the circumstances of the case, the accused-petitiner cannot avail of, at the bail stage, the subsequent statement of PW recorded under section 164 Cr. P. C., exonerating them from a criminal charge which runs counter to a similar inculpatory statement also recorded earlier under section 164 Cr. Met P.C. This settles the first proposition.
9. In Amir Ali;s case their Lordships of the Supreme Court felt that view expressed by A.S.P., that the petitioners were not present at the spot was based on sufficient material. In the instant case I find no such material barring statements recorded under section 164 Cr. P.C. Which are contradictory to the earlier allegations contained in the F.I.R, and the earlier statement also recorded under section 164 Cr. P.C.
10. The allegations in the F.I.R., coupled with the earlier statement under section 164 Cr. P.C. Of the victim of sodomy and the medical evidence in the shape of the report of the Chemical Examiner do not support the finding of the Investigating Officer. This being so the accused-petitioners are not entitled to derive benefit of the opinion of the Investigating Officer qua their innocence when there appear reasonable grounds for believing that the petitioners have been guilty of the offence of abduction and subjecting a boy of 16 years to sodomy.
11. For aforesaid reasons, the application merits dismissal and is dismissed.
K.L.R 1989 Shariat Cases [Lahore] Present: Ijaz Nisar, J.
REHAN ALIAS REHANNI Versus THE STATE CH: Misc.No383/B/1989, decided on 7th March, 1989 , Criminal Procedure Code, 1898 ~Ss.497/498~Bail~Seeking of-Offence u/Ss.3&4 of the Prohibition (Enforcement of Hadd) Ordinance IV of 1979-Petitioner contending that his trial not concluded-rVial Magistrate in his report stating that on some dates either the Petitioner or his mother was not produced from the Jail and on some dates his counsel was not fmisent-The delay took place because of the transfer of his predecessor seized of the case-Held that the Trial Magis trate directed to conclude the trialywithin six weeks positively and send a copy of the' judgment thereof Application for bail dismissed-However, further held that if the trial does not conclude trial within the said period the Petitioner may apply for bail again.
[Vol.Viii (Paras, 12)
For the Petitioners: Muhammad Akram Qureshi, Advocate. For the Respondent: Muhammad Akram, Advocate.
Date of hearing: 7th March, 1989
Ijaz Nisar, J.- It is contended that Rehan alias Rehani petitioner was drrested on 18.12.1987 but his trial has not come to end.
A report was called from the learned trial Magistrate. According to him on some dates either the petitioner or his mother was not produced from the Jail and on some dates his counsel was not present. The delay also took place because of the transfer of his predecessor seized of the case.
Non- presence of prosecution witnesses on some dates also contributed to the delay.
2. Keeping in view the above position, I direct the trial Magistrate to conclued the trial within six weeks positively and send a copy of the judgment to the Court through Registrar. The application is dismissed with the above direction. If for any reason not attributable to the petitioner the trial is not concluded within the above period the petitioner may apply for bail again.
K.L.R 1989 Shariat Cases [Lahore] Present: Raja Afrasiab Khan, J.
IFTIKHAR AHMAD ETC Versus DISTT. ATTORNEY SIALKOT ETC W.P. No. 4262 of 1988, decided on 18th December, 1988 Constitution of Pakistan 1973 -Art.199-Registration of case u/Ss, 10&11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979-Petitioners seeking quashment of the same-Petitioner No.2-Mst Najma alias Shamah Firdaus making a statement on oath that she being a sui juris wanted to marry with her free consent with Petitioner No.1-Iftikhar Ahmed-Consequently she married in accordance with the Muslim Law- Contention of the Petitioner being that there was absolutely no legal basis for the registration of criminal case u/Ss. 10&11 of the Offence of Zina (Enforcement of Hadood) Ordinance 1979 against her-On the contrary respondents submitting that there was ample evidence to show that Petitioners No. 1&2 were indulging in "zina"-Held That the statement of Petitioner No.2 made by her before the Court of Law amply demonstrated that she was sui juris and had married Petitioner No.1 with her free will in accordance with lawThey had entered into lawful marriage with each other-Further held: That there was no legal justification with the police to register the case aginst Petitioners No.1&2-FIR quashed.
(Paras, 1 2 & 4)
For the Petitioner Syed Aftab Sherazi, Advocate.
For the Respondent: Ch. Mohammad Ali, Advocate.
Date of hearing: 31st October, 1988
Raja Afrasiab Khan, J.- The petitioners Iflikhar Ahmad, Najma alias Shamah Firdaus and others have moved this constitutional petition praying therein that registration of the case F.I.R. No. 109/88 dated 2.6.1988 against the petitioners under sections 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979 at Police Station Nikapura, Sialkot may be quashed by declaring the same without lawful authority. The case is that petitioner No.2 Mst.Najma alias Shamah Firdaus is daughter of respondent No.2 Mst.Sughran Begum wife of Mohammad Tufail. On 2.1.1988 the said petitioner instituted a criminal complaint in the Court of Magistrate 1st Class Sialkot, wherein she made a statement on oath that she being a sui juris wants to marry with her free consent with petitioner No.1. Iftikhar Ahmad. Copy of the statement of petitioner No.2 has been placed on record as Annexure A. Thereafter the said petitioner Mst. Najma alias Shamah Firdaus married with petitioner No.1 on 4.1.1988 in accordance with Muslim law. Copy of Nikahnama has been placed on record as Annexure B. It is further disclosed in para No.3 of the petition that petitioner No.2 also instituted a criminal complaint under section 506 Cr.P.C, before the learned Ilaqa Magistrate, Sialkot, where she made another statement on 7.3.1988 saying that the parties have entered into a compromise and that she lived for 1h months with her mother repondent No.2 in her house. The allegation is that respondent No.2 and her husband subjected the petitioner to pressure for getting divorce from petitioner No.1 and that she did not agree with them and finally she left them and went to her husband's house. In view of this backgroud respondent No.2 has managed registration of the false case agaisnt the petitioners as mentioned above.
2. It is forcefully submitted by the learned counsel that as per the statement of petitioner No.2 before the learned Magistrate she has married with petitioner No.1 with her own free will on 4.1.1988 vide Nikahnama Annexure B in accordance with Muslim law. In other words, the contention is that in view of the statement of petitioner No.2 vide Annexure A, Nikhnama vide Annexure B and vide her statement Annexure F made by her under section 164 Cr.P.C it is established that there was absolutely no legal basis for the registration of the criminal case under sections 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979.
3. Learned counsel for the contesting respondent submits that there is amply evidence to show that petitioners No.1 and 2 are indulging in 'zina' and as such the case has been registered against them in accordance with law.
4. I have heard the learned counsel for the parties and have perused the retbrd. The statement of petitioner No.2 made by her before the Court of law amply demonstrates that she is sui juris and that she has married with petitioner No.1 with her free will in accordance with law. Learned counsel for the respondent has not been able to show that the marriage entered into between the parties is the result of some coercion or pressure. The learned counsel has not been able to show any such thing from the statement of petitioner No.2 made by her under section 164 Cr.P.C. In my considered view, petitioners No.1 and 2 are living together as husband and wife and that they have entered into lawful marriage with each other. There is absolutely no evidence on the record to show that the said petitioners have committed any offence under the provisions of the said Ordinance of 1979.
Under the circumstances, the registration of the case, referred to above against the petitioners is obviously based on mala fide on the part of respondent No.2 inasmuch as the petitioner No.2 has married with petitioner No.1 against the wish of respondent No.2. There was, therefore, no legal justification with the police to register the case against petitioners No.1 and 2, who are husband and wife according to law. Consequently the case F.I.R. No. 109/88, Annex-D is quashed being without lawful authority. This petition succeeds and is allowed leaving the parties to bear their own costs.
K.L.R.1989 Shariat Cases [Lahore] Present: Sardar Muhammad Dogar, J.
SALEH Versus THE STATE CrI.Misc.No.l546/B of 1989, decided on 30th May, 1989.
Criminal Procedure Code, 1898 -Ss.497/498- Offence u/S.18 of the Offence of Zina(Enforcement of Hudood) Ordinance 1979- Petitioner seeking bail-Petitioner stated to have dragged, the complainant from the cot and broken the string of her Shalwar yet there is no specific allegation that he made any other that a case for bail made out-Bail allowed.
(Paras, 13)
For the Petitioner. Lai Khan Baloch and Nazir Ahmad Akhtar,Advocates.
For the State: Sardar Munir Ahmad Gill,Advocate.
Date of hearing. 30th May, 1989. #tbs Sh. C30 #the #tbs Key Law Reports ORDER #the #tbs 1989 #the SARDAR MUHAMMAD DOGAR, J.~ Petitioner seeks bail in the case registered against him and others under Sec. 18 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Mochiwala, DisttJhang on 2-11-88.
2. Accorking to RIR, the petitioner while armed with a gun, accompanied by Mokha, had entered the house of the complainant during night,had dragged her from the cot and had broken the sffffigof her Shalwar while his co-accused had called out to fire.In the meantime, her children woke up.
They raised alarm. Her husband came there. He also raised alarm, as a result ofwhich the PWs arrived at the scene and the accused ran away.
It is further stated that the petitioner and his co-accused had pressed upon the complainant to submit for Zina 3-4 days prior to the occurrence but she had abused them. It is further mentioned in the FIR that in the morning when husband of the complainant went to the petitioner and his co- accused to make a complaint, the for other accused, named in the FIR,had quarrelled with him and threatened him that he may do anything that he wishes.
3. The FIR, in fact was lodged on a written application of the complainant. Although it is mentioned that the petitioner dragged the complainant from the cot and had broken the string of her Shalwar yet there is no specific allegation that he made any other effort to commit Zina. His co-accused have already been released on bail. He is in jail for 5h months. The challan is still pending in the Court of the Ilaqa Magistrate, and has not been sent to the Court of Session till today.
In the circumstances, a case for bail appears to have been made out.This petition is, therefore, allowed and the petitoncr is directed to be released on bail, provided he furnishes bail bond in the sum of Rs. Fifteen thousand with one surety in the like amount to the satisfaction of the Assistant Commissioner, Jhang.
K.L.R 1989 Shariat Cases [Lahore] Present: Raja Afrasiab.
M. SHARIF Versus THE STATE Cr.Misc.No.3587/B-88 and Cr.Msic.No.3588/B-1988,decided on 20th December, 1988 Criminal Procedure Code,1898 -S.497-Case u/S.Ll of the Offence of Zina (Enforcement of Hudood) Ordinance 1979-Registration of- Petitioncrs moving petitions for Bail-They subjected to intensive interrogation by the I.O. For full 13 days and the CIA Police-Nothing recovered from them-Contended that there is no direct evidence to connect the petitioners with the commission of the crime-The case being of no evidence-Further no complete or in complete challan submitted-Co-accused since granted bail under almost similar circumstances-Held that: The case of the petitioners admittedly at par with that of the co- accused-Furlher held: That it being a case of further inquiry Petitioners admitted to bail.
(Paras, 1 3 & 4)
For the Petitioners: Nasir Saeed Sheikh, Advocate.
For the State: Rana Muhammad Arshad Khan and A.R.Germi, Advocate. Date of hearing: 20th December, 1988.
Raja Afrasiab, Khan J.--The petitioners, Muhammad Sharif in Cr.Misc.No.3587/B-1988 and Sh.Ihram Rauf in Cr.Misc.No.3588/B-1988 have moved these petitions for bail after arrest under section 497 Cr.P.C, in a case registered against them under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station Civil Lines Rawalpindi vide F.I.R. No.147 dated 3.4.1988. The above-said two petitions have arisen out of one F.I.R, and as such these petitions are being disposed of by this consolidated order.
2. The allegation is that the two petitioners and one Anthoney, cq-accused, went to the house of the complainant on 1.4.1988 and declared that they are ready to render assistance to him for the recovery of his missing niece Saeeda. It may be noted that the above-named girl left the house of her father on 29.3.1988 on the ground that her mother had admonished her.
In this matter the three accused mentioned above asked the complainant to pay a sum of Rs.10,000/- in lieu of the recovery of his niece. The complainant, however, paid a sum of Rs.3,000/- in advance to the above said three accused and promised to pay the remaining amount of Rs.7,000/- to them when the girl is recovered. According to the prosecution version the three accused took the complainant with them and went on searching the girl from place to place on 3.4.1988. In the meantime the complainant suspected that the accused are not making genuine efforts for search and recovery of his niece and he further apprehended that in fact the two petitioners, and their co-accused Anthoney have abducted his niece. He, therefore, took the accused to the Police Station and accordingly the petitioners were arrested by the police. A case under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against the petitioners as mentioned earlier.
3. It is contended that the petitioner were subject to intensive interrogation by the investigating officer for full thirteen days and the C.IA. Police also interrogated them for two days, however, nothing was recovered from them despite the above interrogation. Thereafter the petitioners were sent to judicial lock-up. Learned counsel submits that the petitioners were arrested by the police as back as 3.4.1988 and that they are in the judicial lock-up for the last more than eight months. Lie contends that there is no direct evidence to connect the petitioners with the commission of the crime and that nothing was recovered from them. According to the learned counsel it is established that the girl left the house of her own accord after she was given admonition by her mother. Learned counsel maintained that this is a ease of no evidence. It is maintained that no complete or. Incomplete challan has been submitted before the court so far. Lastly, it is argued that the co- accused Anthoncy has been granted bail on 20.6.1988 almost under similar circumstances. The learned Stale counsel did not oppose the grant of bail to the petitioners.
2. I have heard the learned counsel for the parties and have perused the record. Admittedly, no challan has been submitted so far despite the expiry of more than eight months in the ease. The petitioners arc confined in Jail since the date of their arrest. Prima facie, there is no evidence to show that the petitioners are involved in the commission of the crime. The co-accused Anthoncy was allowed bail by this Court and the case of the petitioners is admittedly at par with that of the co-accused. Under the circumstances, in my view this is a case of further enquiry. Accordingly, the petitioners arc admitted to bail in the sum of Rs.50,000/- (Rupees fifty thousand) each with two sureties each in the like amount to the satisfaction of the A.C. Rawalpindi.
K.L.R 1989 Shariat Cases [Lahore] Present: Munir A.Sheikh, J.
MST.PARVEEN Versus TIIE STATE Crl. No. 1 of 1989, decided on 21st January, 1989.
Criminal Procedure Code, 1898 ~Ss.497/498"Case u/Ss 10&11 of the Offence of Zina (Enforcement Hadood) Ordinance 1979 read with S.M of Offences Against Property and S.380 PPC-Bail-Seeking of-Petitioners argued that as a matter of fact Petitioner No.1 married Petitioner No.2 with her own free will as she being major could contract marriage under the Law- This marriage being against the wishes of the complainant the entire family was involved to take revenge, insult and humiliate the Petitioner-Held that- From the facts and circumstances and the material brought on the record so far it cannot be said that it establishes beyond reasonable doubt that the Petitioners are guilty of an offence punishable with death or imprisonment for life- Further held- That this being a ease where further inquiry is required the pre-arrest bail already granted to the Petitioners is confirmed.
(Paras, 1 4 & 7)
For the Petitioner: Amanat Ali Bokhari,Advocate. For the Complainant: Ata Ullah Mirza, Advocate. For the State: Shaukat Ali, Advocate.
Date of hearing: 21st January 1989.
Munir A.Sheikh, J.- Through this application petitioners' seek bail before arrest in a case registered under Sections 10/11 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, read with Section 14 of offences against the Property and Section 380 PPC against the petitioners as also one Mst. Parveen sister of petitioner No.1 and Qamar husband of said Mst. Parveen.
2. F.I.R, has been recorded at the instance of Sawab Gul who is father of petitioner No.1. According to FIR petitioner No.1 was engaged with the sister's son of the complainant. A room in his house was rented out to one Muhammad Qamar and Mst. Parveen Akhtar daughter of Muhammad Shafi. Laiq Ahmed who is brother of said Parveen Akhtar had been visiting her said sister and brother-in-law in the said room. It is alleged that this Laiq Ahmad developed illicit relations with her daughter Mst.
Nasreen Akhtar who is peititoner No.1 about which he did not have the knowledge. When he entertained the doubt he got the said house vacated from said Mst. Parveen Akhtar. On account of this vacation of house they were not happy and threatened him that they would take revenge for humiliation caused to them. On 6.12.1988 the complainant was absent from his house and had gone to attend his duties in service. His wife along with her three dughters went to her married daughter namely Mst. Nasim Akhtar in the house of her-in-laws and left behind, his son Muhammad Shahid and petitioner No.1. At about 11.00 A.M. Muhammad Laiq petitioner No.2 along with his step mother Mst. Shamim Akhtar and sister Mst. Parveen Akhtar as also his brother-in-law Muhammad Qamar came to his house. Muhammad Laiq and Muhammad Qamar stood outside the house whereas Mst. Shamim Akhtar and Mst. Parveen Akhtar came in the house. On their asking his daughter Mst. Nasreen Begum took an amount of Rs.27348/- present in the house and golden ornaments details in the F.I.R, as also the garments and went with them. When his son Shahid gul present in the house who was 8/9 years old asked her as to where they were going, Mst. Shamim and Parveen told him that they were going in connection with giving garments for Karhai. When they both along with Mst. Nasreen came out of the house the said Shahid Gul also followed them where he saw that in the street Muhammad Laiq and Muhammad qamar were also standine who took away petitioner No.1 Mst. Nasreen TV gum. He followed il>vm upto the road when he saw that a Suzuki Pick 1 p was standing on t tic road in which Muhammad Shaft father of Liaq and Muhammad Zaki brother of Liaq were sitting. They put Mst. Nasreen Begum ln the said Pick Up and went away.
3. According to the complainant the matter was brought to the notice of member union council who intervened but neither petitioner No.1 was returned to him nor the said money and the golden ornaments allegedly taken away by Mst. Nasreen Begum.
4. Learned counsel for the petitioners argued that as a matter of fact Mst. Nasreen Begum petitioner No.1 married petitioner No.2 with her own free will and that she was of the age of 25 years and being major could contract marriage under the law. According to him due to this marriage against the wishes of the complainant who wanted to marry her with the son of his sister he wanted to take revenge, insult and humiliate petitioners No.1 and 2 and a mala fide and a false case has been lodged involving the entire family of in-laws of petitioners No.1 so as to teach them lesson.
5.. Rashid Ahmad SHO P.S. Shalimar, is present with the record. During investigation statement of petitioner No.1 has been recorded who denied that she was abducted. She stated that she married petitioner No.2. Member of union council has also been examined who has supported the case ol the complainant to the extent that he was approached by him and the mailer could not be settled.
The complainant has also been examined. The evidence so far collected by the Investigating Agency has not brought anything on the record as to how and in what connection an amount of more than Rs.27.(XK)/- was present in the house and that loo not under any lock and key. The involvement of all family members of alleged in laws of Mst. Nasreen petitioner No.1 prima facie gives strength to the plea of the petitioner that all of them have been tried to be involved with some motive. It is in the F.I.R, that petitioner No.1 was engaged with to the son of the sister of the complainant which gives rise to a suspicion as pleaded by the learned counsel for the petitioner, that it might be a case of taking revenge. It was not denied that petitioner No. 1 is major. She claims to have married petitioner No.2. A photo copy of miscellaneous has been placed on the record.
6. Learned counsel for the complainant submitted that this nikah allegedly look place in Karachi which is doubtful. I am not called upon to express any opinion on the merits of the case so that it may not prejudice the investigation as also the trial of the case. The deeper analysis of the evidence to be produced by the prosecution shall be made by the trial Court at the lime of disposal of the main case. Suffice it to say that from the facts and circumstances and the material brought on the record so far it cannot be said thjil it establishes beyond reasonable doubt that the petitioners are guilty ofnn offence punishable with death or imprisonment for life. This is a case win i. Further inquiry is required.
7. For the foregoing Reasons the pre-arrest bail already granted to the petitioners on 15.1.1989 is hereby confirmed. The criminal 35 Sh. C. Key Law Reports #tbs [Vi>l iii #the miscellaneous is disposed of.
K.L.R. 1989 Shariat Cases [Lahore] Present: Rashid Aziz Khan, J.
MST.NOOR JAHAN Versus JAN MUHAMMAD ETC. Crl.Misc.No.l004-B-1989,decided on 21st March,1989.
Criminal Procedure Code, 1898 -S.561-A-- Offence u/S.10 Offence of Zina (Enforcement of Hudood) Ordinance 1979-Trial court granting hail to the respondent-Petitioner seeking its cancellation-Held that- Cogent reasons were given for granting bail to the respondent to which no exception can be taken-Further hcld- That there being no allegation that the respondent misused the concession of bail the Petition for cancellation of bail fails and is dismissed.
(Paras, 1 2)
For the Petitioner: Ch.Mushtuq Masnod, Advocate.
For the Respondent: A.W.Butt, Advocate.
Date of hearing: 21st March, 1989.
Rashid Aziz Khan, J.- The learned counsel assailed the order dated 11.3.1989 intcr-alia, on the grounds that the learned Additional Sessions Judge, Lahore has brushed aside the report of the Chemical Examinor on flimsy ground and on the contrary the learned Judge by expressing his opinion on its creditibility prejudiced the case of the petitioner. He had further argued that the delay in the registration of the case has been satisfactorily explained. He has also stated that the respondent No.1 with the collusion of the police functionaries pressurezid the petitioner to effect a compromise and thereupon the petitioner was constrained to file writ petition No.1438/89 in this Court against this high handcd-ncss of the police functionaries. Notice to respondent No.1.
The petitioner seeks cancellation of bail granld to respondent No.1,in a case under section 10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, registered at the instance of the petitioner.
It is contended by learned counsel for the petitioner that the respondent was named in the FIR. He was alleged to have committed zina with the petitioner, therefore, was not entitled to the concession of bail. Contentions have been opposed by learned counsel for the respondent as well as for the State.
2. I have heard the learned counsel and perused the record. The bail was granted to the respondent mainly on the consideration that the allegation against the respondent is that his wife brought the petitioner herself arid then facilitated the commission of zina which was committed by the respondent is unnatural on the face of it. The learned trial Court had also observed that the investigating officer admitted that the door of the room where the petitioner was raped was iron door, therefore, the assertion of the petitioner that on her hue and cry the witnesses came and also peeped through the creeks of the door and saw the offence being committed is not possible in view of the statement of the I.O. That the door did not have any creek. It has also been pointed out by learned counsel for the respondent that the police never obtained vaginal swabs but it was the petitioner who got herself medically examined after nine days of the occurence which was not relied upon by the trial Court which granted bail on two-fold grounds; firstly the report was not very reliable because it \As not possible to detect semen nine days after the commission of the offence and secondly the petitioner got herself medically examined privately, therefore, it could not be ascertained whose swa bs were sent for detection of semen. I have gone through the bail granting order and find that cogent reasons have been given for granting bail to the respondent to which no exception can be taken. There is no allegation that the respondent misused the concession of bail.
3. Resultantly, the petition fails which is accordingly dismissed.
K.L.R. 1989 Criminal Cases [Lahore] Present: Muhammad Rafiq Tarar, J.
MST.GULNAZ BANC) ETC. Versus THE STATE Crl.Misc.No.l711/B of 1989, decided on 27th May, 1989.
Criminal Procedure Code, 1898 -Ss.497/498-- Offence u/Ss.l3&14 of Offences of Zina (Enforcement of Hudood)Ordinance 1979- Bail-Seeking of- Petitioners contending that except the confession allegedly made by them before the police which is inadmissible in evidence there is no material available on the record to support the prosecution version- The other petitioner since released on bail and the case of both the Pctitioners(womcn) is at par with him-Petitioners- Held-Are released on bail.
(Para, 3)
For the Petitioner: Muhammad Rafiq Chauhan, Advocate.
For the State: M.A.Chaudhary, Advocate.
Dale of hearing: 27th May, 1989.
MUHAMMAD RAFIQ TARAR, J. - Msl.Ciulna/ Bano and her daughter Mst. Naurcen have moved this petition for bail in a un. Registered against them and another under Articles 13 and 14 of Ordinance VII of 1979.
2. The facts of the case need not be narrated here as the same have been detailed in my order dated 13.5.1989 passed in Cr.M. No.l614-B of 1989. It may, however, be mentioned that the allegation against the petitioners was that on 20.4.1989 at 2.30 a.m. They were found silting in a car with co- accused Tariq Aziz in Dobai Chowk. They were apprehended by a police party before whom they admitted that they were living on prostitution.
3. Learned counsel for the petitioners contends that except the confession allegedly made by the petitioners befbre the police which is inadmissible there is no material available on the record to support the prosecution version. The learned State counsel does not controvert this contention. The case of the petitioners is at par with that of Tariq Aziz petitioner who has since been released on bail by this Court. The petitioners are also admitted to bail subject to furnishing security in the sum of Rs. 20,000/- each with one surety each in the like amount to the satisfaction of A.C/Duty Magistrate, Model Town, Lahore.
K.L.R. 1989 Shariat Cases [Lahore] Present: Sardar Muhammad Dogar, J.
KHAN MAST Versus THE STATE Crl. Misc. No.4339/B of 1988, decided on 21st January, 1989. Criminal Procedure Code,1898 -Ss 497/489-Offencc u/Ss. 307/364/148/149 PPC read with S. 17 or the Offences against Property (Enforcement of Hudood) Ordinance 1979- Sessions Judge granting bail to nine co-accused of the petitioners on only distinction that their names mentioned in the supplementary statement but in the case of petitioners complete addresses also been given-Held that ,Such distinction not enough to by pass the rule of consistency-Further held-That following the rule of consistency Petitioners' application for bail also allowed.
(Paras, 1 3)
For the Petitioner: Muhammad Ismail Chaudhry,Advocate.
For the State: Awais Nasim, Advocate.
Date of hearing: 21st January, 1989.
SARDAR MUHAMMAD DOGAR, J.--The petitioners have been arrested in case FIR N> ^9 dated 7-10- 88, Police Station Chakrala, district Mianwali, regislcicd and. 1 Sec. 307/464/148/149 PPC, read with Section 17 of 'he Offences against Properly (Enforcement of Hudood) Ordinance. 1979.
2. According to F.I.R., 45 persons armed with fire "'>is had besieged the house of Nawabzadgan of Kalabagh near Raihs.i) Station Massan and had stolen away grocer's shop material and a huge quantity of foodgrain and had also abducted their servants, l2 in number. Twenty persons were named in the F.I.R, and about the rest of twenty-five it was stated that their names shall be given after the complainant comes to know of that. However, on the same day, supplementary statement of the complainant was recorded wherein thirlv-two persons were named.
3. The petitioners are not out of the twenty persons initially named in the F.I.R. Their names appear in the supplementary statement. It is worth noting here that the twelve servants alleged to have been abducted, were neither named in the F.I.R, nor have been named in the supplementary statement.
All the twelve persons said to have been abducted have, according to the A.S.I., returned back. They had not been recovered specifically from any of the accused named in the F.I.R, or in the supplementary statement.
Nine persons named along with the petitioners in the supplementary statement, have been released on bail by the learned Addl. Sessions Judge. Nothing was recovered from them. Khan Mast petitioner was arrested on 19- 10-88, Nawab petitioner was arrested on 21-10-88 while Abdul Qaddus petitioner was arrested on 20-10-88. The efforts made by the Police to arrest the remaining accused have not borne fruit. Only distinction on the basis of which learned Addl. Sessions Judge granted bail to nine co-accused of the petitioners, is, that their names, have been mentioned only, in the supplementary statement but in the case of the petitioners complete addresses have also been given. This distinction, in my view, was not enough to by-pass the rule of consistency. The petitioners according to their counsel arc labourers and have been roped in for political reasons.
Their petition for bail, in the circumstances, is also allowed following the rule of consistency. They shall be released on their furnishing bail bonds in the sum of Rs. Fifty thousand each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Mianwali/Ilaqa Magistrate.
K.L.R. 1989 Criminal Cases [Lahore] Present: Rashid Aziz Khan, J.
BASHIR alias TADDY Versus THE STATE Crl. Appeal No 307/1) of 1985, decided on 12th February, 1989 Criminal Procedure C*de. 1898 -S.497- Offence u/S f' f Offences against Property (Enforcement of I ludood)Ordinancc 1979 and Ss.302/307/148/149 PPC-Bail-Seeking of- HJJ that- Petitioner not named in FIR -The only evidence against him of two Wajtakkar witnesses -Also no evidence available to show that he was present at the scene of occurrence inside the Haveli or outside it-Petitioner's case in the circumstances is- Further held-Of further inquiry-Bail allowed.
(Paras,1 3)
For the Petitioner: Ejaz Anwar, Advocate.
For the Respondent: Abdul Samad Hashmi, Advocate.
For the State: Akhtar Shabhir, Additional Advocate General.
Date of hearing: 12th February, 1989.
RASHID AZIZ KHAN, J.-A case under section 17 of Offences against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 302/307/148/149 PPC was registered with Police Station Saddar Chiniot, District Jhang, on 12.12.1987. The allegations, as contained in the FIR, are that the first informant along with his brother Barkat Ali was sleeping in his Haveli when he heard some noise and saw nine persons armed, present in the Haveli. One of the accused Jani Shah took 7 M.M. Rifle of the first informant, and another accused picked up. l2 bore gun belonging to the first informant's companion. The accused persons threatened them of dire consequences in case they raised noise, and took away five buffalos from the Haveli. The first informant and his brother Rehmat Ali raised alarm, whereupon Muhammad, Co-accused of the petitioner fired hitting Rehmat Ali. It was followed by Bhai Khan whose shot also hit Rehmat Ali. When the first informant tried to rescue his cattle, he and his companions were given Lathi blows by the co-accused of the petitioner. Rehmat Ali in consequences of the injuries died.
2. It is contended by learned counsel for the petitioner that the petitioner is not named in the FIR.
Submits that during investigation the petitioner was found involved but there is no evidence that he was present at the spot. The only evidence available against the petitioner is that of two Wajtakkar witnesses. The petition has been opposed by learned counsel for the State.
3. I have heard the learned counsel and perused the record. The petitioner is not named in the FIR.
The only evidence collected by the investigating agency against the petitioner is of two Wajtakkar witnesses who saw him along with some cattle head going on a tractor-trolley at a distance of 10/12 miles from the place of occurrence. There is no evidence whatsoever to indicate that he was present at the scene of occurrence inside the Haveli or outside the haveli. The evidence against him is that he was seen along with other co-accused after the commission of the offence at a considerable distance. This in itself would make the case of the petitioner of further inquiry which would entitle him to the concession of bail, therefore, the petitioner is allowed bail provided he furnishes security in the sum of Rs.30,000/- viih two sureties, each in the like amount, to the satisfaction of Assistant Conunissioner/Duty Magistrate concerned.
K.L.R 1989 Shariat Cases [Lahore] Present: Rashid Aziz Khan, J.
UMAR HAYAT Versus THE STATE Crl. Misc No. S75-B of 1989, decided on 5th March, 1989 Criminal Procedure Code, 1898 -S.497-Offence u/Ss.3&4 of the Prohibition (Enforcement of Hadd) Order 1979-Bail-Seeking of- Petitioner contending that the case against is absolutely false as there is neither any allegation nor evidence that he was selling or had the intention to sell the said heroin-During the investigation the Petitioner is alleged to have admitted that he used to smoke and sell heroin-Held that such admission before the Police can of any help to the prosecution because it was made when the Petitioner was in custody-Bail allowed.
(Paras, 1 2)
For the Petitioner: Syed Sikandar Bakhat, Advocate.
For the State: Akhtar Shabhir Addl. A-G-and Abdus Samad Hashmi, Advocate.
Date of hearing: 5th March, 1989.
RASHID AZIZ KHAN, J.- The petitiner prays for bail in a case registered against him under section 3/4 of Prohibition (Enforcement of Hadd ; Order, 1979. With Police Station B-Division, Gujrat, on 7-7-1988.
The allegation against the petitioner is that the petitioner was apprehended under Gambling Act and during his search 15 grams of heroin was found in his pocket. In pursuance of the said a separate case under the above noted section was registered.
It is contended by learned counsel for the petitioner that the case against the petitioner is absolutely false. Submits that he is in jail for the last more than seven months without there being any progress in the case. Contends that there is niether any allegation nor evidence that the petitioner was selling or had the intention to sell the said heroin.
2. I have heard learned counsel and perused the file. During investigation the petitioner is alleged to have admitted that he used to smoke and sell heroin. I don't think this admission of the petitioner before the police can be of any help to the prosecution because it was made when he was custody. The investigation is complete and the petitioner is not required for the said purpose any more, ln these circumstances, the petitioner is allowed bail in the sum of Rs. 25,000/ with two sure'ies, each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Gujrat.
K.L.R. 1989 Shariat Cases [Lahore] Present: Khalid Paul Khwaja, J.
SYED SULTAN SHAH Versus THE STATE Crl M. 2270-B of 1989, decided on 8th July, 1989 Criminal Procedure Code, 1898 -Ss.497/498- Bail-Offence u/S. 16 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979- Held that: The petitioner was actively in league with his co-accused-Further held: That the statements of PWs sufficiently connecting him with the offence charged against him-Not a fit case for the grant of bail-The same is refused.
(Paras, 1, 7)
For the Petitioner: Abdur Rashid Bhatti, Advocate.
For the State: Asif Khalil, Advocate.
Date of hearing: 8th July, 1989.
Khalid Paul Khwaja, J.- On 1.5.1989 at Police Station Akbari Gate Lahore a case under section 16 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Abdul Majced Rakib and Abid Hussain Manzar accused at the instance of Muhammad Sale complainant.
2. It was alleged that in October, 1988 the above mentioned two accused took Rs.20,000/- from the complainant and arranged a visa for him to work in Saudi Arabia. As the working conditions there were not satisfactory the complainant came back to Pakistan on 23.4.1989 and found that on 22.3.1989 the aforesaid two accused had abducted his wife Mst.Shahnaz along with his three minor children and his sister-in-law Mst.Musarrat Shafique PW. It also came to his knowledge that the two accused had taken away along with them the household effects of the complainant. Mst. Musarrat Shafique made good her escape after about 16/17 days and came back to Lahore and informed the petitioner that his wife and children were taken to Hyderabad by the said accused.
3. On the same day i.e. On 1.5.1989 the statement of Mst.Musarrat Shafique PW was recorded under section 161 Cr.P.C. She disclosed that the above mentioned two accused had taken her, her sister Mst. Shahnaz and her minor children to Hyderabad by train where a Pathan, who subsequently was identified to be Syed Sultan Shah petitioner, received them at the Railway Station Hyderabad and took all of them to an hotel in a car. She further stated that the two accused and the petitioner used to keep watch on them but she, somehow, managed to escape.
4. On 16.5.1989 Syed Sultan Shah petitioner was arrested from Hyderabad after having been indentified by Mst. Musarrat Shafique PW. On the same day the Investigating Officer recorded the statement of Ghulam Hussain, Principal, Poly-Technical College, Hyderabad, wherein he stated that he had arranged a house on rent for Abid Hussain Manzar accused at the instance of the petitioner who had told him that the said accused was the husband of Mst. Shahnaz and the father of the three children. He further stated that the petitioner used to visit them daily in the said house. On the same day the statement of Muhammad Umar the brother of Mst. Shahnaz abductee was recorded.
He stated that on having come to know that his sister along with her children had been abducted, he along with his brothers went to Hyderabad and contacted Syed Sultan Shah petitioner who was providing protection to the said accused. The petitioner admitted before them that Mst.Shahnaz and her children were living with Abid Hussain Manzar accused but was hesitant to disclose their whereabouts.
5. The petitioner applied for his bail but his bail application was dismissd by the learned Additional Sessions Judge, Lahore vide order dated 13.6.1989. He has now come to this court for his bail.
6. I have heard the parties counsd and have gone through the record.
7. The statement of Mst. Musarrat Shafique, Principal Ghulam Hussain and Muhammad Umar PWs show that the petitioner was actively in league with his co-accused Abdul Majeed Rakib and Abid Hussain Manzar. These statements sufficiently connect him with the offence charged against him.
Up till now neither Mst.Shahnaz nor her minor children have been recovered. The police has also not been able to aprrest Abid Hussain Manzar accused who is absconding. In these circumstances, I do not feel inclined to hold that this is a fit case for the grant of bail. The mere fact that the petitioner is lodged in the judicial lockup or the offence charged against him does not faill within the prohibitory clause of section 497 Cr.P.C does not make it a good case for his release on bail.
Consequently the bail application is dismissed.
K.L.R.1989 Shariat Cases [Lahore] Present: Muhammad Rafiq Tarar, J.
MUHAMMAD AFZAL Versus MUHAMMAD SAEED AND ALIAS BILLO CRL MISC.N0.1758/B of 1989, decided on 18th June, 1989.
Criminal Procedure Code, 1898 -S.497(5)- Bail-Cancellation of-Petition therefor-Offence under Art.l2 of Offence of Zina (Enforcement of Hudood) Ordinance 1979-And S.377 PPC- -Respondent being on bail-Petitioner seeking cancellation of the same-The grounds weighing with the Court below for granting bail to the respondent that according to police papers and medico-Legal certificate his age was fifteen years whereas according to birth certificate he was above 18 years- Therefore there was a scope for further enquiry-Petitioner contending that the opinion of the Doctor regarding age cannot displace the entries in the birth certificate-However, respondent submitting that he was falsely implicated due to enmity-Held: That in the absence of any material that the birth certificate is not a genuine document its entries have to prevail- Respondent being over 18 years of age at the time of occurrence the offence falls within the prohibitory clause and there was absolutely no justification for the grant of bail-Petition allowed-Bail cancelled.
(Paras, 13 & 5)
For the Petitioner; C.M. Latif Rawn, Advocate.
For the Respondent; Liaqat Hussain Shamsi, Advocate.
For the State: Nasim Iqbal, Advocate.
Date of hearing: 18th June, 1989.
Muhammad Rafiq Tarar, J.- Muhammad Afzal petitioner has moved this petition for cancellation of bail allowed to Muhammad Saeed alias Billo respondent by the learned Sessions Judge, Toba Tek Singh, in a case under Article l2 of Ordinance VII of 1979 and section 377 P.P.C.
2. The brief facts of the prosecution case are that on 22.2.1989 at about 5 p.m. Muhammad Saeed alias Billo respondent took away Muhammad Shahbaz, aged 8/9 years, towards the fields when he was playing in the play-ground outside the village. Soon after, Muhammad Afzal and Muhammad Javed, who were on way to their house, heard hue and cry from Square No.31 and rushed to that side. They saw the respondent committing sodomy with Muhammad Shahbaz. On seeing them, he ran awary from the spot.
3. The victim was medically examined on the same day. Bloodstained faecal matter was present on the perineum. There was a laceration 1 cm x 0.4 cm on the shin. The anus was swollen. There was a laceration 0.8 cm x 0.5 cm on the mucous memorane inside the anus.
The anal swa bs, Shalwar and shirt of the victim and Shalwar of the respondent were sent to the Chemical Examiner.
3. The grounds which weighed with the learned Sessions Judge for granting bail to the respondent were that according to the police papers and the medicolegal certificate the age of the respondent was fifteen years whereas according to birth-certificate his date of birth was 6.3.1971, therefore, there was a scope for further inquiry and that some more time was likely to be consumed in the submission of challan and the petitioner (respondent herein) could not be detained for an indefinite period of time.
4. Learned counsel for the petitioner contends that the FIR version finds material corporation from the medical evidence and the report of the Chemical Examiner, therefore, it was not a fit case for the grant of bail, particularly in view of the fact that a boy of very tender age was brutally subjected to carnal intercourse against the order of nature. He further submits that the opinion of the doctor regarding the age of the respondent cannot displace the entries in the birth-certificate. Learned State counsel also supports this petition.
Learned counsel for the respondent submits that the respondent has been falsely implicated due to enmity as the complainant party demanded the hand of his sister for Javed, brother of the victim, but her parents refused to oblige them.
5. Extract from the Register of Births, placed on the file, shows the date of birth of Saeed respondent as 8.3.1971 (not 6.3.1971 as mentioned in the order of the learned Sessions Judge; although digit '8' is written in such a way that it can also be read as '6'). The Authenticity of the birth-certificate has not been challenged before me nor any material has been brought on record indicating that the date of birth has been incorrectly mentioned therein. Any thing recorded in the police papers or in the medicolegal report would not in any way outweigh the entry in the Register of Births. In his order the learned Sessions Judge had observed hat it was "true to say that the first-informant's version finds corroboration form medical evidence". If he had come to that conclusion then there was absolutely no justification for holding that the offence attributed to the accused "would not fall in the prohibitory clause of section 497 Cr.P.C." and there was "scope for further inquiry". In the absence of any material showing that the birth-certificate is not a genuine document, its entries have to prevail. The respondent was over 18 years of age at the time of occurrence. The prosecution version finds full support from the medical evidence and reports of Chemical Examiner. The offence falls within the prohibitory clause and there was absolutely no justification for the grant of bail. I, therefore, allow this petition and cancel the bail allowed to the respondent by the learned Sessions Judge. The respondent shall be arrested and sent to jail.
K.L.R 1989 Shariat Cases [Lahore] Present: Tanvir Ahmed Khan, J.
MUHAMMAD SULEMAN Versus THE STATE Criminal Misc. No.472-B of 89, decided on 27th February, 1989. Criminal Procedure Code, 1898 -Ss. 497/498-Offence u/Ss. 10/11/7/79 Hadood Ordinancc-Bail-seeking of- Petistioner arguing that there was a delay in lodging FIR and medical examination was conducted two days after the registration of the case-Held that the petitioner having committed zina-bil-jabbar with a young girl of 13 years of age-The offence is of a serious nature-Bail refused.
(Paras, 1 2)
For the State: Mehr Allah Ditta, Advocate and Mian Abdul Qayyum, Advocate.
Date of hearing: 27th February, 1989.
Tanvir Ahmed Khan, J.- The petitioner has applied for post arrest bail in a case registered against him vide F.I.R. No.22,2,88 dated 22-6-1988 u/s 10/11/7/79 Hadood Ordinance at police at police station Shahdara, Lahore.
2. The F.I.R, in this case was registered at the instance of one Mst. Bashiran Bibi widow of Muhammad Ashraf stating therein that the petitioner with the help of one Mst. Bushra Bibi enticed away her 13 years daughter Imtiaz alias Rani on 18th of June, 1988. The learned counsel has argued that there is a delay in lodging the F.I.R, and medical examination was conducted two days after the registration of the case. The Investigation Officer is present. Leamed State counsel has stated that the girl was recovered on 27th of June 1988 and her statement u/s 164 Cr.P.C, was recorded. In that statement she had categorically stated that the petitioner kept her in illegal confinement for five days and during all this period committed zina bil-jabbar with her. The learned state counsel has argued that the informant who is a widow lady was herself approaching the co-accused Mst.
Bushra for the restoration of the abductee and ultimately when she could not get her daughter restored she approached the police authorities. The petitioner has committed zina-bil-jabbar with a young girl of 13 years of age. The other arguments respecting belated F.I.R, and medical examination would appropriately be dealt at the time of trial. Keeping the circumstances of this case and the evidence so for collected the involvement of the petitioner is apparently brought on record. The offence is of serious nature as the petitioner has committed Zina-bil-jabbar with a young girl of 13 years. In the circumstances the bail is dismissed.
K.L.R 1989 Shariat Cases [Lahore] Present: Sardar Mohammad Dogar, J.
MUHAMMAD QASIM Versus THE STATE Crl Misc No. 1700-B-1989, decided on 28th June, 1989.
Criminal Procedure Code, 1898 -Ss. 497/498-Bail-Petition for the grant of the same-Offcncc being under S.12 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979- Allegation being that the Petitioner committed sodomy with the minor son of the complainant -Bail being sought on the ground that the Petitioner was involved falsely in the case and that he was 11 years and one month old at the time of occurrence according to the school leaving certificate-Held that Keeping in view the period that the petitioner was in jail and that he was about 11 years old at the time of occurrence-He is allowed bail.
(Paras, 1 3 & 4)
For the Petitioner: M. Iqbal Cheema, Advocate.
For the State: Maqbul Elahi Malik, Advocate General.
Date of hearing: 28th June, 1989
Sardar Mohammad Dogar, J.- Petitioner seeks bail in the case registered against him under .Section l2 of the Offence of Zina (Enforcement of Hudood) Oidinance, 1979 at Police Station Shadbagh, Lahore.
2. According to F.I.R, the petitioner had committed sodomy with Naser Ahmad minor son of the complainant.
3. Bail is being sought by the petitioner on the grounds that he has been involved falsely in the case and that he was 11 years one month old at the time of occurrence according to the school-leaving certificate.
4. Keeping in view the period that the petitioner is in jail and mainly the fact that he was about eleven years old at the time of occurrence, I feel inclined to exercise discretion in his favour. This petition is, therefore, allowed and the petitioner is directed to be released on bail, provided he furnishes bail bond in the sum of Rs. Twenty thousand with one surety in the like amount to the satisfaction of the Assistant Commissioner, City, Lahore.
Copy dasli on payment of usual charges.
K.L.R 1989 Shariat Cases [Lahore] Present: Ijaz Nisar, J.
MUHAMMAD ASH RAF Versus THE STATE CRL. MISC. 1348-B-1989, decided on 12th June, 1989.
Criminal Procedure Code 1898 -Ss.497/498- Bail-Application therefor-Offence u/Ss. 3&4 of Prohibition (Enforcement of Hadd)
Order IV of 1979-Allegation being recovery of 11 grams of heroin from the possession of the Petitioner-His contention being that the recovery is fake-Further the only public witness in his statement u/S.164 Cr.P.C, denying to have witnessed any such incident-The Petitioner is said to be first offender-His person no longer required for investigation- Petitioner-held-Is admitted to bail.
(Paras, 1 2)
For the petitioner: Ch. Muhammad Hussain Chhachhar, Advocate.
For the State: Riaz Ali Abbasi, Advocate.
Dale of hearing: 12th June, 1989
Ijaz Nisar, J.- Muhammad Ashraf petitioner was arrested on 22.2.1989 under Article 3/4 of the Prohibition Order (E.O.H) Ordinance, 1979 on the allegation that 11 grams of heroin was recovered from his possession.
2. Bail is pleaded on the ground that the recovery is fake and that the only public witness namely, Munir Ahmad son of Muhammad Ramzan has recorded his statement under section 164 Cr.P.C, denying to have witnessed any such incident. The petitioner is said to be the first offender. His person is not longer required for the purposes of investigation.
In view of the above, I admit the petitioner to bail in the sum of Rs.20,000/- with two sureties in the like amount to the satisfaction of A.C.Okara.
K.L.R. 1989 Shariat Cases [Lahore] Present: Lahrasap Khan, J.
BASHIR AHMAD Versus THE STATE Appeal/Revision No. 1664-B of 1989 decided on 7ll* June, 1989. Offence of Zina (Enforcement of Hadood) Ordinance VI1 of 1979 -Ss.10 & 16 -Allegation being that Mst.Razia Bibi had obtained an ex parte decree for dissolution of marriage against her husband Liaquat Ali-In the meantime she developing illicit liaison with the Petitioner-A child is born to her Petitioner alleged to have confessed the guilt before the complainant- However, members of her family have sworn affidavits that her husband had a ccess to her and as a result of conjugal union the birth of child had taken place-The same being within 280 days of the passing of ex parte decree for dissolution of marriage-Decree not yet Confirmed-Petitioner contending that there is no direct evidence of the commission of zina and that the evidence of extra-Judicial confession is not reliable, needing further probe- Petitioner admitted to bail being a case of further enquiry.
(Paras, 2 3 & 6)
1986 PCr.LJ. 1016 and 1986 PCr.LJ. 1443.............. Relied For the Petitioner: Rana Ayub Masih, Advocate.
F.1 the State: Baqar Gardezi, Advocate.
Date of hearing: 7th June, 1989.
Lahrasap Khan, J.-Bashir Ahmad petitioner who is involved in a criminal case under sections 10 & 16 of The Offence of Zina (Enforcement of Hadood) Ordinance VII of 1979, arising out of F.I.R. No.111 dated 7-6-88, registered at police station Saddar Renala Khurd, Distt: Okara, seeks to be admitted to bail.
2. It has been alleged that Mst. Razia Bibi d/o Allah Yar of Chak No.l2/l-R, Teh: & Distt: Okara obtained an ex-parte decree for dissolution of marriage against her husband Liaquat Ali on 7-10- 87 and that in the meanwhile she developed illicit liaison with the petitioner. It has further been alleged that the petitioner and Mst. Razia Bibi indulged in adultery. Resultantly a boy namely Munir Ahmad born to Mst. Razia on 14-4-1988. The petitioner is alleged to have confessed the guilt before the complainant Nehal s/o Ahmad, Abdul Ghafoor, Lambardar and Nazar Muhammad s/o Murad.
3. Razia Bibi aforesaid, her father Allah Yar, her brother Ibrahim and her mother Mst. Jannat have sworn affidavits that Liaquat Ali had accessed to Mst. Razia Bibi and that a son has born to Mst.
Razia as a result of conjugal union between Liaquat Ali and Mst. Razia. The birth of the child has taken place within 280 days of the passing of the ex-parte decree for dissolution of marriage obtained by Mst. Razia Bibi agaist Liaquat Ali. That decree has not yet been confirmed by the Arbitration Council concerned.
4. It has been contended on behalf of the petitioner that there is no direct evidence of the commission of Zina by the petitioner and Mst.Razia and that the evidence of extra judicial confession is not reliable and requires to be further probed. The co-accused, Mst. Razia, has already been admitted to bail by this Court while disposing of Crl. M.No.Ll90-B-1989. In Qasim Ali Vs. The STate (1986 P.Cr.L.J. 1016), there was no direct evidence of commission of Zina by the accused and the prosecution sought to rely on extra judicial confession. It was held that question of guilt of the accused under the circumstances required further enquiry and thus bail was allowed. Similarly in Zulfiqar and another Vs. The State (1986 P.Cr.L.J. 1443), no direct allegation of commission of Zina was made against the accused and the accused was exonerated by the abductee through an affidavit. It was held in the circumstances that it was a fit case for exercising of discretion in favour of the accused, bail was thus granted.
5. In the present case, as observed earlier, Mst. Razia, her parents and her brother have sworn affidavits about the innocence of the petitioner and Razia. There is no direct evidence of commission of Zina. The only evidence which the prosecution has been able to collect is that of extra judicial confession.
6. The petitioner in the circumstances is admitted to bail in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of Assistant Commissioner, Okara.
K.L.R 1989 Shariat Cases [Lahore] Present: S.M.Zubair, J.
MUHAMMAD INAYAT Versus THE STATE Cr. M. No. 2417/B of 1989, decided on 19th July, 1989.
Offence of Zina (Enforcement of Hudood) Ordinance 1979 -S 10 -Petitioner contending that FIR lodged after the delay of for days and challan not been submitted-He was behind the bars and no progress had been shown in the trial-There was no eye witness of the occurrence-There was long standing enmity between him and the complainant- Held: It is a case of further enquiry-Further held: That there is no independent corroboration of the version given in the FIR which was obviously belated one-Petitioner admitted to bail.
(Paras, 1 3 & 7)
For the Petitioner: Muhammad Akbar Tarrar, Advocate.
For the Slate: Rio Mohammad Khalil, Advocate.
Date of hearing: 19th July, 1989.
S.M. Zubair J.- The petitioner, who is involved in a case under section 10 of Offence of Zina (Enforcement of Hudood) Ordinance 1979, arising out of FIR No.272/88 dated 27.9.1988 registered at Police Station Miana Gondal seeks to be released on bail.
2. According to the FIR, the petitioner along with his co-accused committed zina-bil-jabar with Mst.
Shahnaz wife of the complainant on 24.9.1988 whereas the FIR was lodged on 27.9.1988.
3. Learned counsel for the petitioner contends that in the present case the FIR was recorded after the delay of for days and challan has not been submitted so far. Since then the petitioner is behind the bars but so far no progress has been shown in the trial and the learned counsel for the petitioner submitted that the petitioner cannot be kept behind the bars by way of punishment.
Learned counsel further contends that there is no eyewitness of the occurrence and there is long standing enmity between the petitioner and the complainant.
4. I have heard the learned counsel for the State who has vehemently opposed the bail application and on the basis of record he has argued that the victim received certain bruises on her person though their duration has not been mentioned in the medico legal report.
5. Learned counsel for the State conceded that the challan has not been submitted in the Court of law and the evidence has not yet commenced.
6. After hearing both the parties and perusing the record, I am of the opinion that without going deep into the merits and demerits of the case, the petitioner cannot be kept behind the bars by way of punishment as the prosecution has failed to submit the challan, the case of the petitioner is also of further inquiry because, there is no independent corroboration of the version given in the FIR which is obviously belated one.
7. In view of the above mentioned circumstances, the petitioner is entitled to bail, hence is admitted to bail provided he furnishes security in the sum of Rs.50,000/- (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Mandi Baha-ud-Din.
K.L.R 1989 Shariat Cases [Lahore] Present: Khalid Paul Khwaja, J.
SHAUKAT ALI Versus THE STATE CH. Misc No. 2143/B 1989, decided on 14th June, 1989.
Offence of Zina (Enforcement of Hadood) Ordinance 1979 -Ss.lO&ll -The abductee in her statement u/S 164 Cr.P.C, in support of the allegation contained in the FIR stating that the Petitioner had been committing Zina-bil-Jabr with her-Petitioner contending that he had been falsely implicated in the case on account of enmity between him and the father of the abductee-In support he producing affidavit of PW and the statement of the abductee made before another magistrate in which she had clearly stated that the Petitioner had been falsely implicated in the case-He had never committed zina with her-Held that: In view of variant statements of the abductee-Discrepant evidence about her age coupled with the affidavit of PW it is a fit case for further enquiry-Petitioner-Further hcld-Is entitled to bail-Admitted to bail.
(Paras, 1 4 & 8)
For the Petitioner Ch. Arshad Mahmood, Advocate.
For the State: Noor-ui-Hassan, Advocate.
Date of hearing: 11th July, 1988.
Khalid Paul Khwaja, J.- On 2-10-1988 at Police Station Pir Mahal, Distt. Toba Tek Singh a case under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 was registered against Shaukat Ali petitioner and his grand-mother Mst.Karim Bibi at the instance of Dildar Muhammad.
2. The prosecution case, in brief, is that on 24-9-1988 the petitioner and his grand-mother had enticed away the daughter of the complainant Mst. Nasreen Akhtar aged about 13 years with the object of subjecting her to Zina-bil-Jabr.
3. On 15-10-1988 the investigating officer received secret information, that the abductee and the petitioner were present at the local bus stand. He arrested them from there.
4. On 16-10-1988 Mst. Nasreen Akhter abductee was produced before a Magistrate where she made a statement under section 164 Cr.PC in support of the allegation contained in the FIR. She further stated that the petitioner had been committing Zina-bil-Jabr with her.
5. After the completion of the investigation the petitioner and his grand-mother were challaned.
Now from the judicial lock up he has applied for his bail.
6. I have heard the parties' counsel and have gone through the record.
7. The learned counsel for the petitioner has vehemently contended that the petitioner had been falsely implicated in the present case on account of enmity between him and the father of the abductee. In order to show that the present case was false he referred to the affidavit sworn by Muhammad Mushtaq PW and the statement of Mst. Nasreen Akhter abductee which she made on 24-1-1989 before Malik Mushtaq Ahmad, Magistrate 1st Class, Toba Tek Singh in complaint titled Mst. Nasreen Akhter Vs. Dilawar Hussain. According to the prosecution case on 24-9-1988 Muhammad Mushtaq and Muhammad Tufail PWs had seen the petitioner and his grandmother taking away Mst. Nasreen Akhtar abductee. Muhammad Mushtaq PW, however, has sworn an affidavit that he had not witnessed the said incident and that the story of abduction was totally false. In her statement before the Magistrate on 24-1-1989 the abductee has clearly stated that the petitioner had been falsely implicated in the present case due to enmity with her father and that he had never abducted her or committed Zina with her. She further stated that after the registration of the said case the police had been taking her along for about two days during which she was subjected to forcible sexual intercourse.
8. There are now two variant and totally contradictory statement of Mst. Nasreen Akhtar, abductee before us which she made before two Magistrates on 16-10-1988 and 24-1-1989. Her subsequent statement belies the prosecution case. Similarly, material on record about her age is also discrepant. In the FIR she is shown as 13 years old. Before the Magistrate on 16-10-1988 her age was given as 13/14. During her medical examination on 16-10-1988 she was shown to be 17 years old while in her statement dated 24- 1-1989 she gave her age as 18 years. These variant statements of the abductee and discrepant evidence about her age coupled with the affidavit of Muhammad Mushtaq PW make it a fit case for further inquiry. The petitioner, therefore, is entitled to bail and is admitted to bail in the sum of Rs.20,000/-with one surety in the like amount to the satisfaction of A.C/Duty Magistrate, Toba Tek Singh.
K.L.R 1989 Shariat Cases [Lahore] Present: Tanvir Ahmad Khan, J.
FALAK SHER AND OTHERS Versus THE STATE Crl. Misc. No. 2100/B/1989, decided on 10th July, 1989 Offence of Zina- (Enforcement of Hudood)
Ordinance 1979 -S.18 -Police raiding the bungalow and apprehending the Petitioners along with three ladics- Petitioncrs contending that they were tenants in the shops belonging to the complainant's uncle and they had been implicated in a mala fide manner out of ulterior motivc-Pctitioners contending that mere reading of the FIR not inspiring any confidcncc-During the course of investigation S.10 of the Ordinance had been deleted and instead challan was submitted u/S.18 of the Ordinance 1979- Further all the three ladies were since granted bail-Held that: Keeping all the facts and circumstances of the case the Petitioners were entitled to the concession of bail-The same- Further held-Is allowed to them.
(Paras, 1 3 & 4)
For the Petitioner: Q.M. Sale, Advocate.
For the State: A.H. Musud, Advocate.
For the Complainant: Abdus Sattar Chughtai, Advocate.
Date of hearing: 10th July, 1989.
Tanvir Ahmad Khan, J.- The petitioners Falak Sher, Muhammad Yousaf and Muhammad Younas have applied for post arrest bail in a case registered against them vide FIR No.126 at Police-Station Kotwali Jhang on 15.3.1989.
2. According to FIR, the complainant Muhammad Ashraf was looking after a bungalow of Ghulam Muhammad which was lying vacant for sale. It is his case that at about 10.00 p.m. Two of his friends, namely Amir Hussain and Haq Nawaz came to sec him. He took his guests to Ayyub Chowk, Jhang Sadar to take meal and tea etc. When they cumC back at about 11.00 p.m. They found that an electric bulb was on in a room of the bungalow and saw the present petitioners along with three un-known ladies committing Zina. Thereupon the complainant went to report the matter at Police- Station. He met S.I Rab Nawaz and other police officials at a near-by chowk where his statement was recorded. There-aflcr the police party raided the spot and apprehended the petitioners along with three ladies while they were committing Zina.
3. Learned counsel has contended that the petitioners are tenants in the shops belonging to complainant's uncle and they have been implicated in a mala fide manner out of ulterior motive.
He has argued that mere reading of the FIR does not inspire any confidence what soever. He apointed out that during the course of investigation section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 has been deleted and instead challan has already been submitted under section 18 of the Offence of Zina (Enforcement of Hudood ) Ordinance 1979 on 15.3.1989.He has further contended that the bail application of the petitioners was earlier dismissed by the learned Additional Sessions Judge vide order dated 12.4.1989 on the ground that the case was still under investigation. Now the position is different. The challan has been submitted after investigation. He has also submitted that all the three ladies have already been granted bail by the learned Additional Sessions Judge, Jhang.
4. Keeping all the facts and circumstances of the case into consideration, I think the petitioners are entitled to the concession of bail. Hence I admit them to bail in the sum of Rs. 30,000/- each with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Jhang.
Copy Dasti on payment of usual charges.
K.L.R 1989 Shariat Cases [Quetta] Present: Munawar Ahmed Mirza, J.
MST. TAJ BIBI Versus THE STATE Crl Misc. Appeal No. 08/89, decided on 14th January, 1989 Offence of Prohibition (Enforcement of Hadd) Order 1979 -Ss 3/4 -Petitioner contending that to her-Ils subsequent cancellation was unwarranted-A.A.G. In opposing bail arguing that offence alleged against the Petitioner is punishable for life imprisonment thus disentitled her from any conccssion-Held that: Material collected during investigation reasonably connected her with the commission of offence-The same showing prima facie involvement of the petitioner in trafficing narcotic: The trial court-Further hcld-Justifiably recalled its earlier order-Petition dismissed.
(Paras, 2, 4)
1985 PCr.L.J.2779, 1986 PCr.L.J.203, 1986PCr.L.J. 1086, P.Cr.L.J. 1986-1009, PCr.LJ. 1987-1386, 1986 PCr.L.J.1456, 1987 PCr.L.J.59, 1988 SCMR 162 and PLD 1980 Kar 69m,......... Refer For the Appellant: Iftikliar Mohammad, Advocate.
For the State: Mir Muhammad Nawaz Marri, A.A.G.
Date of hearing: 14th January, 1989.
Munawar Ahmed Mirza, J.-Petitioner is apprehended in connection with case registered by Levies authorities on the complaint dated 23.10.1988 ledged by Sub-Divisional Magistrate Turbat under sections 3/4 of Prohibition (Enforcement of Hadd) order, 1979. According to Prosecution petitioner was caught' red handed' through a fake customer while selling huge quantile of 'Heroin'. Initially petitioner was released by learned Sessions Judge Turbat vide order dated 26.11.1988, but subsequently petition seeking cancellation ot hail moved by Sub Divisional Magistrate was accepted by learned Sessions Judge vide order dated 19.12.1988 which has now been assailed.
2. Mr.Iftikhar Muhammad, learned counsel for petitioner emphatically contended that petitioner did not violate concession of to her on 26.11.1988, therefore, subsequent cancellation was unwarrenlcd.
He canvassed that while granting bail Trial Court had duly considered relevant facts available on record, since there was no change in the circumstances, therefore, cancellation was unlawful. He argued that in the absence of Chemical Examiner's report, recovered substance cannot be definitely deemed herein. Learned counsel further canvassed that provisions of section 497/498 Cr.P.C, otherwise provide concession to a woman but trial court ignored all these aspects while passing order dated 19.12.1988. Besides on the plea of first offender reliance was placed on the observation in case Babar Islam Vs. The State (1985 P.Cr.L.J. 2779)
3. Whereas learned A.A.G, vehemently opposing bail application maintained that content of F.I.R, and evidence secured during investigation amply establishes participation of petitioner in actual sale of narcotics. He vehemently contended that offence alleged against petitioner is punishable for life imprisonment,thus disentitling her from any concession.
4. I have carefully examined both the orders passed by trial court, and also considered arguments addressed by learned counsel for parties. Evidently, tenative evaluation of material collected during investigation reasonably connects petitioner with commission of offence alleged against her: Circumstances, prima facie show' involvemcnt/of petitioner in trafficing narcotics. Factully trial] court while passing order dated 26.11.1988 disregarded requirements of law concerning grant of bail in offence punishable with imprisonment of life, besides relevant available facts were also clearly ignored, therefore in my opinion trial court justifiably recalled its earlier order. No doubt, law provides more concession regarding bail to female accused.Nevcrthclcss discretion in this behalf, must be judiciously exercised looking into respective merits, lt is pertinent to note, that narcotic trafficing is becoming great menace to society, by seriously affecting morals of youth. Introduction of ladies for carrying this nefarious business is further detrimental to social febric. Thus females involved in such degenerated offences would not be automatically entitled to discretion merely by virtue of sex unless law so permits on merits. In the instant case, petitioner is prima facie implicated for the commission of alleged offence.Factum of being first offender by itself is not sufficient for allowing bail under section 497/498 Cr.P.C. Therefore with utmost respect I would differ with the observation in case Babar Islam vs. The State (1985 P.Cr. L.J. 2779)relied upon by petitioner.
Apparently from the facts on record, conclusion drawn by trial court in its order dated 19.12.1988 arc unexceptionable. The offence is obviously punishable w the imprisonment of life.
Thus for the foregoing reasons, present petition has no merits. In this view I am also supported by observation in following reported judgements:- Nasira Ahmed Vs. The State ( 1986 P.Cr. L.J. 203) George alias Kaka Vs. State (1986 P.Cr.L.J.1086) #tbs (1)
(2)
(3)
(4)
(5)
(6)
(7)
(8) #the Syed Sulcman Shah Vs. State (1986.P.Cr.L.J.1809) Muhammad Anis vs. State (P.Cr.L.J. 1987 P-1386)
Bachan Saop Vs. State (1987 P.Cr. L.J. 1456) Muhammad Hanif Vs. State ( 1987 P.Cr.L.J.59)
Haji Muhammad Nakki Vs. The State (1988 SCMR 162) Yaseen vs, The Stale (PLD 1988 Karachi 69)
6. Investigating Agency is however directed to conaplcte investigation Within one week and put up challan before Court of competent jurisdiction. It is further observed that petitioner however would be at liberty to move fresh bail application if during trial, case is made out on merits.
K.L.R 1989 Shariat Cases [Lahore] Present: Khalil Ramday, J.
LIAQAT ALI Versus STATE Crl M. 2249-b-89, decided on 11th July, 1989 Offence of Zina (Enforcement of Hadd) Ordinance 1979 -S 18 -Complainant alleging through FIR that he alongwith other saw the Petitioner sitting in his shop with his Shalwar taken off and the daughter of the complainant aged about seven years sitting in his lap and her Shalwar had also been taken off-The said child Crying-Shop of the petitioner situating in the main bazar having roads on two sides-Doors of the shop were opcn-Both the roads being public thorough farc-Practitioner contending that his uncle had lodged a case of attempted rape against the son of the PW-Held: That a senior Police Officer investigating the case had found the same to be false and also in view of the appreciation of the allegations The practitioner-Furlher held-Is admitted to bail. \ (Paras)
For the Petitioner: Malik Shakeelur Rehman, Advocate.
For the State: Bashir Ahmad Baig, Advocate.
Date of hearing: 11th July, 1989
Khalil Ramday, J.- The petitioner is accused of an offence punishable under section 18 of Offence of Zina (Enforcement of Hadd) Ordinance, 1979, vide FIR No.399 of Police Station Model Town, Gujranwala.
2. Faqir Muhammad, Complainant alleged through this FIR that he, along with one Ali Muhammad, was on his way home for lunch and just as they were passing from near the shop of Liaqat Ali petitioner, they saw that Liaqat petitioner was silling in his shop with his SHALWAR taken off and that the daughter of the complainant, namely, Shabnam Kausar, aged about seven years was silling in his lap and her SHALWAR had also been taken off and that the said child was crying, lt was further alleged that on seeing these two, Liaqat petitioner ran away whereafter Shabnam Kausar informed the complainant and Ali Mohammad PW that she had come to the shop of Liaqat accused to purchase toffees and that Liaqat accused took off her SHALWAR and tried to commit sexual intercourse with her at which she had started crying. Mst. Shabnam Kausar had further told the complainant that her SHALWAR had got semen stains. The said SHALWAR was produced before the local police and has since been found to have been stained with semen.
2. Oadeer Hussain SI, present in Court, states that he had originally investigated this case, and had found the above allegations as correct and true. On a statement made by the learned counsel for the petitioner, the said SI, however, admits that the investigation was subsequently transferred to the DSP of City Circle, Gujranwala, who had found the case to be false.
3. The shop of Liaqat petitioner is situate in the main BAZAR and has roads on two sides. The doors of the shop were open when the complainant and Ali Muhammad PW passed from near the said shop. Both the roads on which this shop is situate are publice thorough-fare. It is highly improbable that Liaqat petitioner would be sitting in the said shop, in the condition alleged, without any one seeing him or without the said child trying to attract the child attention of those passing by.
4. It has also been submitted by the learned counsel for the petitioner that an uncle of Liaqat petitioner had lodged a case of attempted rape against one Mushtaq who is a son of the above- mentioned Ali Mohammad PW.. The Investigating Officer states that the previous enmity between the parties never came to his notice during the investigation inspite of the fact that this case of attempted rape stood registered at the same Police Station i.e. Police Station Model Town vide FIR No.243 of 1988.
5. The investigation by Qadccr Hussain SI nocks of inefficiency and lack of honesty. The DIG/SSP of Gujranwala shall personally look into the matter and inquire into the conduct of Qadccr Hussain SI..
6. Since a senior Police Officer i.e the DSP, has investigated the case and has found the same to be false and also in view of the above appreciation of the allegations, the petitioner is admitted to bail in the sum of Rs. 5,000/- with one surety in the like amount to the satisfaction of A.C/Ilaqa Magistrate, Gujranwala.
8 Copy dasti on payment of usual charges.
9. Copies of this order shall be sent to the DIG and the SSP of Gujranwala K.L.R 1989 Shariat Cases [Federal Shariat Court] Present: Muftakhiruddin, J.
LAL MASIH ETC Versus THE STATE Cr.A. No.l07/L of 1989, decided on 9th May, 1989 Offence of Zina (Enforcement of Hadood) Ordinance 1979 -S.10(2) -The trial court below acquitting the accused-Respondent of the same-The State impugning the order of acquittal-Held: That it is an established principle of law that in an appeal from acquittal the accused starts with the double presumption in his favour-The superior court not to interfere until the State showed conclusively that the inference of guilt is irresistible-Further there is no direct evidence of zina and the inducement for the offence as alleged arc found lacking in this case-Further held: That it is not believable that a muslim woman can be detained in the same village by non-muslim and the persons could not rescue her-Further the long delay in approaching the police speaks for itself-Appeal having no force-The same is dismissed.
(Para, 5)
For the State: Syed Iftikhar Hussain, Assistant Advocate General Punjab, Lahore.
Date of hearing: 9th May, 1989.
Muftakhiruddin, J.- The State being dis-satisfied with the order of acquittal dated 8.2.1989 passed by the learned Additional Sessions Judge Sargodha whereby Lai Masih son of Inayat Masih, a Christian and Mst. Mumtaz Bibi wife of Muhammad Riaz caste Arain both residents of Chak No.Ll4/N.B District Sargodha, have been acquitted of the offence punishable under Section 10(2) of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
2. A written complaint was lodged by one Muhammad Riaz at police station Silanwali District Sargodha on 30.9.1987 wherein it was alleged that Mst. Mukhtar sister of respondent Lai Masih lived in front of his house and was on visiting terms with his wife Mst. Mumtaz Bibi. This provided opportunity to Lai Masih to develope illicit relationship with Mst. Mumtaz Bibi. The relationship became known complainant tried to bring his wife on the right path and dissuaded Mst.Mukhtar Bibi to visit his house. However, on 22.9.87 when the complainant went away from the house Mst.
Mumtaz Bibi went to the house of Lai Masih and also took along with her the golden ornaments weighing for talas, eight pairs of clothes and Rs.2500/- in cash. She was seen in the tanga of Lai Mashi by Muhammad Ashraf and Manzoor and on their enquiry told them she was going to take medicine. Lai Masih is a tangaban. It was further alleged that Lai Masih detained Mst. Mumtaz Bibi in his house and did not allow her to come back to the complainant Mst. Mumtaz Bibi had left the house in order to commit zina with Lai Masih. The F.I.R was registered by the police and on 20.10.1987 Mst. Mumtaz Bibi joined the investigation. She was got medically examined by lady Dr. Arifa Javed (P.W) who found that the hymen of Mst.
Mumtaz Bibi was torn, admitted two fingers, vaginal swabs were sent to the Chemical Examiner for detection of semen. According to the report of the Chemical Examiner (Ex.PF) swabs were found stained with semen.
3. At the trial the prosecution examined eight witnesses. They are P.W.1 (Dr. Zafar Chaudhry), who had medically examined Lai Masih accused for potency. P.W.2 (Muhammad Riaz) the complainant.
He is not an eye witness P.W.3 (Muhammad Boota) testified that once he had seen the accused persons going out of a sugar-cane field. Mst. Mumtaz Bibi was tightening the string of her Shalwar and on enquiry end had admitted that they had committed zina with each other and had tendered apology. P.W. 4 (Manzoor Ahmad) deposed that he had seen the accused Mst. Mumtaz Bibi along with Mst. Mukhtar Bibi sister of Lai Masih on the tanga. Lai Masih is a tanga driver. P.W. 5 (Khuda Yar- S.I) is the investigating officer in this case P.W.6 (Shaukat Hayat) a formal witness who had recorded the FJ.R. P.W.7 (Lady Dr. Arifa Javed) who examined Mst. Mumtaz Bibi and P.W. 8 (Nazir Badshah) who had handled the scaled parcel containing swabs for its delivery to the Chemical Examiner Rawalpindi.
4. Mst. Mumtaz Bibi in her statement recorded under Section 342 Cr. P.C denied that she was ever abducted and any body had committed zina with her. Ragarding the report of the Chemical Examiner she stated that the police and her husband Muhammad Riaz had brought her from the house of her father and at police station Sargodha there her husband had compromised with her parents. She therefore, went to the house of her husband where she stayed up to 22.10.1987. Her husband cohibited with her during this period. She also made statement on oath to the same effect. Lai Masih had took the plea that he was involved because of enmity.
5. The trial court held that no abduction has been made and there is no evidence about the employment of any deceitful means. Regarding the charge under Section 10(2) of the said Ordinance the trial court has demonstrated the deliberate improvemnt made by the complainant and the prosecution witnesses, besides it was found that Manzoor (P.W.4) is the brother of the complainant. P.W. Muhammad Boota was found not a truthful witness. P.W.4 being closely related to the complainant was not found worthy of reliance in the case. The court found the plea of Mst.
Mumtaz Bibi plausible. The evidence produced by the prosecution was not found sufficient to sustain the conviction.
6. It is an established principle of law that in an appeal from acquittal the accused starts with the double presumption in his favour. Firstly there is the rule that it is for the prosecution to make out their case and until they do so beyond all reasonable doubt, the accused must be presumed to be innocent and secondly that the accused having succeeded in securing an acquittal from Court, the superior Court will not interfere until the State shows conclusively that the inference of guilt is irresistible and the indications of error in the judgment are clear and the evidence more cogent and convincing is available. There is no direct evidence of zina and the inducement for the offence as alleged are found lacking in this case.
7. We have gone through the entire record submitted by the learned Assistant Advocate General Punjab it is not believable that a muslim woman can be detained in the same village by non- muslim and persons could not rescue her. The long delay in approaching the police, as has been shown, in this case by the complainant speaks for itself. The interference in such circumstances is not warranted in law. We are of the considered view that it ! Could not be justified to summon the accused/respondent once again to face the agony of re-trial second time before us. The appeal has no force and is dismissed in limine.
K.L.R 1989 Shariat Cases [Lahore] Present: Rashid Aziz Khan, J.
MST. SHAMIM ALIAS AASHEE Versus THE STATE Criminal Misc. No. 1868/B of 1989, decided on 27th June, 1989. OiTence of Zina (Enforcement of Hadood) Ordinance 1979 -Ss.13,14& 18 --Allegation being that she was running a brothel house and had kept a boy who brought men to the said house for purposes of commission of offence of Zina-Petitioner contending that there was no evidence which could indicate that she was running a brothel housc-Held ; that: There being so far no evidence on the file which could lend support to the assertion that the two men who were found in the house so raided had paid any money to the petitioner-No money was recovered from her person- This being-Further held: A case of further inquiry-The Petitioner is allowed bail.
(Paras, 1 2)
For the Petitioner: Ch. Muhammad Ahad, Advocate.
For the State: Imran Nazir, Advocate.
Date of hearing: 27th June, 1989.
Rashid Aziz Khan, J.- Petitioner Mst. Shamim alias Aashce has applied for bail in a case registered against her and some others with Police Station Sanaa, Lahore for an offence under sections 13/14 & 18 of the Offence of Zina (Enforcement of Hadood) Ordinance, 1979, vide FIR dated 12.3.1989. The allegations as contained in the FIR, arc that the first informant Niamat Ali, AS1, received information that the petitioner was running a brothel house. She had kept a boy by the name of Riaz who brought men to the said house for purposes of commission of Zina. In pursuance of the said information, a raiding party was constituted which raided the premises, where the petitioner along with one Riaz was sitting in the court-yard. In a room there were two cots on which the co-accused of the petitioner were sitting and were preparing for the commission of zina.
It is contended by learned counsel for the petitioner that there is no evidence which could indicate that the petitioner was running a brothel house. Submits that at the time of commission of the offence, the petitioner was sitting in the court-yard, therefore, she cannot be held responsible for what was happening inside the room. Contens that the allegation that in one room two different men were found with two women naked, preparing for the commission of zina is most unnatural.
The contentions have been opposed by learned counsel for the State.
2. I have heard the learned counsel and perused the record. The allegation against the petitioner is that slm was running a brothel house, but so far there is no evidence on the file which could lend support to this assertion. There is no allegation that the two men who were found in the house so raided, had paid any money to the petitioner for the purposes of commission of zina with two other women, who were also co-accused. At the time of raid no money was recovered from the possession of the petitioner.
In these circumstances, I feel it is a case of further inquiry, therefore, she is allowed bail provided she furnishes security in the sum of Rs.25,000/- with two sureties, each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate concerned.
K.L.R 1989 Shariat Cases [Lahore] Present: Riaz Ahmad, J.
HAFIZ MAQBOOL AHMAD Versus THE STATE Cr.Misc No.l852/B of 1989, decided on 17th June, 1989 Offence of Zina (Enforcement of Hadood)
Ordinance VII of 1979 -Ss. 10 & 16 -Abduction and Zina-Complainant alleged that a week after the pronouncement of talaq the petitioner came to the village met Mst Shahnaz (divorced wife) and took her along with him to Sharqpur where he was seen lying with her on a cot which to Zina-Conversely Petitioner claiming that he had obtained Fatwa and could revoke the talaq-Likewise the complainant stated that he too had a Fatwa and alleged that the talaq had become final-Held that: The question of talaq becoming absolute or otherwise being a matter of further enquiry the petitioner be released on bail-.
(Paras, 2 3 & 4)
For the Petitioner: Ch. Masood Akhter, Advocate.
For the State: Muhammad Arshad Khan, Advocate.
Date of hearing: 17th June, 1989.
Riaz Ahmad, J.- The petitioner is accused of the commission of offence tinder section 10/16, of the Offence of Zina (Enforcement of Hadood) Ordinance, VII of 1979.
2. The allegation in the FIR lodged by the complainat Nawab Din, father of Mst. Shahnaz, (deceased,) is that Mst. Shahnaz (deceased) was married to Maqbool Ahmad, 8/9 years before the occurrence and no issue was born out of the wedlock. The petitioner Maqbool Ahmad had allegedly turned her out and had also received all the ornaments. It was alleged that on 13th August, 1988, the petitioner divorced Mst. Shahnaz and the complainant Nawab Din, the father of Mst. Shahnaz, was waiting for the expiry of Iddat period for the remarriage of Mst. Shahnaz, when, in the meanwhile on 20th August, 1988, a week of the pronouncement of talaq. The petitioner came to the village and through Mst. Khurshid, met Mst. Shahnaz and took her along with him to Sharqpur. In Sharqpur, it is alleged that the petitioner was seen lying on the cot with Mst. Shahnaz, which act, according to the complainant, amounted to Zina.
3. The petitioner claimed that he had obtained a fatwa and he can revoke the talaq. The complainant also obtained a Fatwa and alleged that talaq had become final and thereafter, the petitioner could not have any sexual intercourse with Mst. Shahnaz, and if he did so, then it amounted to Zina. On the basis of this allegation, a case was registered against the petitioner. In the meanwhile, Mst. Shahnaz was murdered by her parents.
4. Considering the case from all angles, in my view, the question of talaq becoming absolute or otherwise, is a matter of further enquiry and I need not comment upon the merits at this stage, lest it may prejudice either side. Therefore, I direct that the petitioner shall be released on bail provided he furnishes security in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of A.C/Duty Magistrate, Sheikhupura.
K.L.R 1989 Shariat Cases [Lahore] Present: Rashid Aziz Khan, J.
SABIR ALI Versus THE STATE Crl. Misc. No.2121/B/1989, decided on 26th June, 1989.
Prohition of Hadd-Order, 1979 -Ss. 3&4 -Allegation being that 15 grams of heroin was recovered- Petitioner contending that the case against him was absolutely false-Further submitting that the report of the Chemical Examiner not supporting the allegation that the heroin was recovered from his posscssion-Held: That the contents which were sent for analysis were intoxicant-No clear whether it was hcroing or was some other substance-The case-Further held Being of further inquiry the petitioner is allowed bail.
(Paras, 12)
For the Petitioner: Aish Bahadur Rana, Advocate.
For the Slate: Ch. Imtiaz, Advocate.
Date of hearing: 26th June, 1989.
Rashid .Aziz Khan, J.- Sabir Ali alias Manna petitioner seeks bail in a case registered against him for an offence under sections 3/4 Prohibition of Hadd Order, 1979, with Police Station Kahna, Lahore vide FIR dated 21.3.1989.
The facts in brief arc that the first informant Muhammad Sohail, Excise Inspector, received information that two persons were indulging in the sale of heroin; if raided, could be arrested. In pursuance of the secret information, a raiding-Parly was constituted which apprehended the petitioner. From his personal search 13 grams of heroin was recovered.
It is contended by learned counsel for the petitioner that the case against the petitioner is absolutely false. Submits that only 15 grams of heroin was recovered from the possession of the petitioner. Contends that the report of the Chemical Examiner does not support the lallcgation that heroin was recovered from his possession. The contentions have been .Opposed by learned counsel for the State.
2. I have heard the learned counsel and perused the record. According to the report of the Chemical Examiner, the contents which were sent for analysis were intoxicant. It is not clear whether the contents were heroin or any other substance which was intoxicant. In this view of the matter, the case of the petitioner requires further inquiry which entitles him to the concession of bail. The petitioner is allowed bail provided he furnishes security in the sum of Rs. 30,000/- with two sureties, each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate concerned.
K.L.R 1989 Shariat Cases [Lahore] Present: Fazal Karim, J.
SIKANDAR HAYAT Versus THE STATE Crl Misc. No.l880/B/89, decided on 12th, June, 1989.
Offenc against Property (Enforcement of Hadood) VI of 1979 -Ss.14 -Petitioner accused of having removed some Govt trees-The same later found at a saw mill- His co-accused since allowed bail-Petitioner also released on bail- (Para, 1)
For the Petitioner: Malik Nazar Farid Khokkar, Advocate.
For the State: Ch.Muhammad Mansha, Advocate.
Date of hearing: 12th June, 1989
Fazal Karim, J.-The petitioner, Sikanda,r Hayat, along with two others, Manda and Muhammad Shafique, are accused of having removed some Government trees; the trees were later found at a saw-mill. The petitioner's co-accused Manda was arrested and was allowed bail seven days after his arrest by the learned trial Magistrate. The petitioner has been in jail since 12.3.1989. I, therefore, allow him to be released on bail on his furnishing bond in the sum of Rs.15,000/- (Rupees fifteen thousand only) with one surety in the like amount to the satisfaction of the trial Court. ^ K.L.R 1989 Shariat Cases 5 [Lahore] Present: Fazal Karim, J.
AMJAD HUSSAIN ABID I Versus I THE STATE ; Crl. Misc. No. 3577/B/1988, decided on 5th November, 1988.
Offence of Zina (Enforcement of Hadood) Ordinance 1979 | -Ss l2 and Section 377 PPC Bail- Petitioner was arrested on 15.7.86 and has been in Jail for more than two years and the learned trial Judge is attending a course and will not resume duty till 8.12.88-. t (Para, 1) \ For the Petitioner: Ch. Liaqat Ali Sandhu, Advocate. , For the State: Abdus Samad Hashmi, Advocate.
Date of hearing: 5th November, 1988.
Fazal Karim, J.- The petitioner was arrested on 15.7.1986 and has been in jail for more than two years. Bail is, therefore, sought under section 497. Sub-section (1) third proviso, clause (a) Cr.P.C. It is stated that the learned trial Judge is attending a course and will not resume duty till 8.12.1988. I, therefor, allow the petitioner to be released on bail on his furnishing bond in the sum of Rs.
20,000/(Rupees twenty thousand) with one surety in the like amount to the satisfaction of the learned Additional Sessions Judge who is atending to the work of the learned trial Court.
K.L.R 1989 Shariat Cases [Lahore] Present: Khalil Ramday, J.
ASHFAQ AHMED alias SHAKOO Versus THE STATE Crl.Misc.No. 101/B-89, decided on 28th March, 1989.
Prohibition (Enforcement of Hadd) Order IV of 1979 -Arts 3&4 and u/S.14 (2) of the Dangerous Drugs Act of 1930-Petitioner applying for bail before the court below on more than one occasion but not succeeding-The contention of the Petitioner in support of his petition for bail being that despite a lapse of more than 11 months the challan had still not reached the trial court-Though the entire investigation stood almost completed at the spot except chemical analysis of the alleged "heroin"-Held: That it is for the courts to sharpen and to chisel the investigating agencies through the means provided to them by the law-Further held: That keeping in view the magnitude of the narcotics curse which is no less appalling the Federal Govt may consider the advisability of constituting Special Courts to deal exclusively with the cases relating to narcotics and also to consider legislative measures to make laws relating to this manace more Stringent- Petitioner praying for permission to withdraw his petition for bail-The same is allowed.
(Paras, 2 5 & 22)
For the Petitioner: Ch. Faqir Muhammad, Advocate.
For the State: Tassadaq Hussain Gillani, Addl: A.G, Date of hearintg: 28th March, 1989.
Khalil Ramday, J.- On receipt of secret information that a person was selling 'HEROIN' near Sabzi Mandi on Aurangzeb Road in the area of Police Station Delhi Gate of Multan, S.L Sarfraz Hussain of the Special Cell, along with a raid party consisting of some police officials, reached the area, spotted the suspected person and sent a fake customer who approached this suspect and was sold one gram of 'HEROIN' for Rs.40/. This suspect, who was later identified as Ashfaq Ahmad alias Skahoo, was arrested on the spot. His personal search led to the recovery of another ten grams of 'HEROIN' besides of course the recovery of the aforesaid amount of Rs.40/- which was received by him as the price of one gram of 'HEROIN'.
2. Consequently, a case bearing F.I.R. No.44 dated 1.3.1988 was registered at P.S. Delhi Gate on the complaint of Sarfraz Hussain S.L aforementioned for the alleged commisssion of offences punishable under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order IV of 1979 as also under section 14(2) of the Dangerous Drugs Act of 1930.
3. Having remained in custody since 1.3.1988, Ashfaq petitioner moved the learned Sessions Court for his release on bail on more than one occasion but without any success. He approached this Court for the purpose through Crl.Misc.No 1229/B-88 but elected to withdraw his petition on 8.11.1988. He went back to the learned Sessions Court, this time on the ground that despite a lapse of more than E1EVEN MONTHS the challan had still not reached the trial Court. The learned Sessions Court, however, once again rejected his prayer for being admitted to bail vide its order dated 10-1- 1989.
4. Hence this petition.
5. It is shocking that in a case such as this where the accused was known and stood arrested at the spot; where the objectionable material stood recovered at the time of the arrest of the accused; where the witnesses of the alleged commission of the offence in question and of the recovery of the material in question were mostly the police officials and where the entire investigatiod stood almost completed at the spot except chemical analysis of the alleged 'HEROIN'the Investigating Agency still required more than ONE YEAR to complete its investigation and to submit the challan before the trial Court. About the chemical analysis also, I am informed that a laboratory stands established at Multan and the samples no longer need to be sent to Lahore for their analysis, thus eliminating any possible delays on this score also. To say the least, this apathy on the part of the concerned police agency is unconscionable.
6. This is not the only case demonstrating extreme inefficiency and lethargy on the part of the investigating agency. I have come across other cases also depicting the same sad, unfortunate and apathetic story.
7. Shocked by this state of affairs, I directed the learned District Magistrate as also the learned Sessions Judge of Multan to submit their respective reports about the cases relating Jo narcotics and drugs which were pending trial before various Courts under their respective control. Having seen the speed and the interest with which these matters were handled at the investigating stage, the purpose of obtaining these reports was to ascertain the pace at which these cases progressed during the trial.
8. The facts revealed through these reports, which have since been received and examined, are no less alarming than the situation at, the pretrial stage.
9. One typical example is F.I.R. No. 91/88 of Police Station Qutabpur dated 30.3.1988. The accused was arrested selling 'HEROIN' at the spot. It took the challan SIX MONTHS to reach the learned Magistrate who took cognizance of the case on 8.9.1988. As per report of the learned trial Magistrate, the trial was fixed for at least NINETEEN dates of hearing between September, 1988 and March, 1989 and not a single witness had been examined during these six months. Out of these nineteen dates of hearing, at least on FIFTEEN occasions, the accused, who was in judicial lock-up, was not brought to the Court from the Jail and the trial had to be adjourned each time on that account.
10. The other main reason for inordinate delays in conclusion of trials which is strikingly apparent from the aforementioned reports is the non-appearance of prosecution witnesses before the trial Courts. A perusal of these reports paints a pitiable picture of the treatment being metted out to these cases. It is regretable that cases registered in the years 1987,1986,1985 and even in the year 1983 arc still being adjourned on account of absence of prosecution witnesses and in some of these cases not even a single witness has been produced by the prosecution so far. Needless to repeat that in suchlike cases, the prosecution witnesses are none-other than just the police officials.
11. These reports also reveal that in the District of Multan, 3402 cases are presently pending trial before the Courts of learned Magistrate and 184 cases are awaiting adjudication in the Courts of the learned Sessions and Additional Sessions Judges. This of course, does not include the cases which are still under investigation and which have not yet reached the trial Courts.
12. The enormous pendency of this category of cases is a definite pointer towards the proportions being attained by the drug menace in our society. But what I really wish to highlight more is that in almost every case the quantity of narcotics recovered from the accused persons is. No more than a few grams. Despite long periods of time consumed in its completion, no investigation appears ever to reach or even to reveal the local source i.e. The local 'BIG FISH' who are spreading this poison in every street of the city. The only ones always caught are these petty street peddlers.
Whether it is a case of just a deficient or negligent investigation or of a planned and deliberate design to screen the real source, the real 'BIG FISH' should be a food for thought for the law enforcing agencies and the ones in command thereof.
13. Reverting to the disturbing delays in the finalisation of investigations and the completion of trials, it may also be observed that the performance of Courts is not satisfactory cither.
14. The Courts of Law enjoy a pivotal position in the administration of criminal justice. At every step in the Criminal Procedure one would find a Court placed as a guard not only to prevent encroachments upon the rights of the individuals but also to check the mis-fcasance and the mal- feasance on the part of the polite authorities and the investigating officers. But, it unfortunately.
Appears that the Courts of Law have relegated themselves to f the position of mere silent spectators and have left themselves to the mercy of the police, the investigating, the prosecuting and the process-serving agencies.
15. It is true that the Courts normally exercise restraint in interfering with the investigations being conducted by the police, but this does not mean that the investigating officers have unbridled powers to do just what they . Want during the course of investigation and to take as long as they desire in rrtmplp.Ting the same. A perusal of section 61 and section 167 of the Code of Criminal Procedure would reveal that the law desires the investigation to be completed within 24 hours of the arrest of the accused and the maximum rimi allowed for the purpose is another 14 days whereafter the law expects the trial to commence. Beyond this period of fifteen days, it has to be a rare case of real good cause which could persuade the Court to postpone the commencement of the trial in exercise of its powers under section 344 Cr.P.C.. It has been repeatedly laid down by the Superior Courts that detention of accused persons beyond the initial period of fifteen days, in the absence of the submission of a complete or incomplete challan and in the absence of very extra ordinary reasons, is illegal. A strict adherence to these provisions and demanding strict compliance thereof by the Courts, appears to be the only answer to control the inordinate delays in the completion of investigations and the submission of challans which delays appear to have become the order of the day instead of being a rare exception.
16. Let it be reiterated for the guidance of the learned Magistrates and the learned trial Courts that they have to insist on submission of challans within fifteen days of the arrest of the accused persons and in the absence thereof the Courts ipust refuse to authorise further detention of the accused persons as also the postponement of trials unless a really valid and stisfactory cause is shown to deviate from his principle. I may add that in the situation prevalent today it is only a ruthless observance of the relevant provisions'^ law which can put the things b? .k on rails. The pre- occupation of police personnel in-other engagements or the insufficient number of investigating officers should not be treated, any longer, as a valid ground for the purposes of section 344 of the Cr.P.C. Such-like are the matters which are to be taken care of either by the executive or the legislature. Any laxity shown by the subordinate Courts in future in this area shall be strictly and severely dealt with by this Court.
17. Like-wise the subordinate Courts must also realise that they have ample powers to meet the increasing menace of non-appearance of the witnesses Or the non-production of accused persons from the Jail. These powers are bestowed upon the Courts for the purposes of being exercised and exercised effectively. Such luxuries on the part of the police, the prosecution, the jail authorities or the witnesses must be met by resort to coercive and penal measures against the delinquents. The posture of helpless, passive on-lookers adopted by the Magistrates and the trial Courts can not be countenanced by this Court and shall be met with exemplary measures.
18. All offences are criminal. But then there are certain offences which are more criminal than others and the offences relating to narcotics and drugs are one such category of most criminal of offences. The drug menace is a monster which is fast engulfing our society. The very survival of our future generations appears to be at stake and in serious jeopardy. A concerted effort has to be made to curb this evil before the situation becomes irretrievable. Merc holding of seminars, symposia, workshops and sending Jeople abroad for training is not going to help unless the same arc followed >y effective steps taken on the ground to meet this challenge.
I 19. Fruitful and expeditious finalisation of investigation, zealous prosecution of offenders, timely production of under-trial prisoners before the Courts and prompt appearance of witnesses is the obligation of the police. The District Superintendents of Police must ensure faithful and effective discharge of these obligations by their subordinates. They should devise means of periodical monitoring not only of investigations but even of the pursuit of prosecution of the offenders at the trial stage.
20. Being saddled with the maintenance of law and order within his local limits, the District Magistrate exercises control not only over the police administration in his district but is also the local incharge'Of the prosecution agency in his area. He must, therefore, also take effective steps to eliminate the incidence of lethargic and deficient investigations, the non-production of under trial prisoners and the non-appearance of prosecution witnesses before the leamed trial Courts.
21. The ultimate responsibility of administration of justice, however, rests with the Courts. The police and the investigating agencies are only the instruments provided to the Courts to assist them in the discharge of this responsibility. The Courts of Law must remember that they are operators and not the slaves of these tools. If the Courts, at any stage, feel that these implements have got blunted or rusted, then it is for the courts to sharpen and to chisel them through the means provided to them by the law.
22. Before I part with this order, I may also add that Special Courts stand established in our country to deal with cases of corruption, terrorist activities, customs, medicinal drugs and bank frauds etc. The magnitude of the narcotics curse is no less appalling. Therefore, the Federal Government may consider the advisability of constituting Special Courts to deal exclusively with the cases relating to narcotics and also to consider Legislative measures to make laws relating to this menace more stringent.
23. As for this bail application, the learned counsel prays for permission to withdraw the same.
24. Dismissed as withdrawn.
25. The file of this case be placed before My Lord the Chief Justice and if His Lordship so approves, copies of this order be circulated to all the leamed Sessions Judges, the District Magistrates and the District Superintendents of Police in the Province for their information, guidance and compliance.
K.L.R 1989 Shariat Cases [Lahore] Presentr Khalid Paul Khwaja, J.
MUMTAZ HAIDER Versus THE STATE Crl. Misc. No. 2423/B/1989, decided on 23rd July, 1989. Prohibition (Enforcement of Hadd) Order 1979 --Arts 3&4 -Complainant on patrol duty along with a police party receiving secret information that the petitioner was selling heroin-Recovery attested by the constablfes-In their statement u/S 161 Cr.P.C, they supporting the prosecution ease-Petitioner contending that recovery was fake-Held that: There was nothing on record to show that the complainant or any other police official was inimically poisedagainst him-Further the Petitioner's contention that the complainant was bound to associate witnesses from public with the recovery proceedings u/S 103 Cr.P.C, not tenable-This being not a case of search of any place-Petitioner's case not falling within the prohibitory clause of S. 497 Cr.P.C, his bail application-Further held: Is dismissed.
(Paras, 14 & 5)
For the Petitioner: Muhammad Sharif Butt, Advocate.
For the State: Ch. Muhammad Suleman, Advocate.
Date of hearing: 23rd July, 1989.
Khalid Paul Khwqja, J.:On 9.5.1989 a case under Article. 3/4 of the Prohibition (Enforcement of Hadd)
Order, 1979 was registered at Police Station Tibbi City, District Lahore against Mumtaz Haider petitioner at the instance of Muhammad Azam S.I.
2. It was alleged that the complainant who was on patrol duty along with a police party received secret information that the petitioner was selling heroin in Tibbi Gali. The complainant laid a raid on the petitioner and recovered from the pocket of his shirt a packet containing l2 grams of heroin.
The said packet was taken into possession and the petitioner was arrested who has now aplied for his bail.
3. I have heard the parties' counsel and have gone thrrough the record.
4. A sample out of the packet recovered from the petitioner was sealed into a parcel and sent to the Chemical Examiner for analysis who in his report has confirmed that it contained heroin.
According to the prosecution case the recovery of herion was effected by Muhammad Azam S.I (Complainant) in the presence of Sparas Ali and Muhammad Iqbal Foot Constables. The recovery memo was also attested by the said constables. In their statements under section 161 Cr.P.C, these witnesses have supported the prosecution case. Lcarnd counsel for the petitioner has contended that the recovery is fake and the petitioner has been falsely implicated in the present case. There is nothing on record to show that the complainant or any other police official was inimically poised against the petitioner and therefore, prima facie there is no reason to believe that the petitioner has been falsely implicated in the present case. The statements of the two attesting witnesses of the recovery memo sufficiently show that l2 grams of heroin was recovered from the possession of the petitioner. The petitioner has not brought any material on record to show that the recovery was fake or fictitious.
5. Learned counsel for the petitioner has further contended that in the present case no witness from the public was associated with the recovery proceedings and as such no sanctity could be attached to the recovery in question. He is of the view that the complainant in the present case was bound to associate witnesses from the public with the recovery proceedings under section 103 Cr.P.C. I am afraid the contention raised by the learned counsel is not tenable. This is not a case of a search of any place and therefore, the provisions of section 103 Cr.P.C are not attracted where under it. Is necessary for a police officer to call upon two or more respectable inhabitants of the locality to attend and witness the search, ln the present case on receiving secret information the complainant who was on patrol duty alongwith a police party, immediately proceeded to the place where the petitioner was reported to be present to lay a raid on him. In such a situation he could not be expected to first pursuadc people from the public to accompany him and witness the recovery proceedings. This would have delayed the action and the petitioner would have slipped away. I am, therefore, of the opinion that in the present case joining of the witnesses from the public to witness the recovery roceedings was not essential and omission in this regard docs not vitiate the proceedings.
6. Since the offence charged against the petitioner falls under the prohibitory clause of section 497 Cr.P.C, and there is sufficient material on record to show that he is a drug-pusher I do not feel myself inclined to release him on bail. His bail application is dismissed.
7. Observations made in this order shall not influence mind of the trial court while disposing of the case which shall be decided purely on merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.