MALIK ABDUL AZIZ (MEMBER).--As would appear from the record of the instant appeal, two criminal cases i,e,, case No, 42, dated 10-3-1982, under section 344/365, P.P.C. at P.S. Pasrur and case F.I.R. No, 66, dated 14-3-1982, under section 364/302/201/34, P.P.C. at P.S. Ravi Road, Lahore were registered against Muhammad Saleem, S.I. appellant, then posted as S.H.O. P.S. Pasrur (and his accomplices i,e, Muhammad Hayat, A.S.-I. Ilam Din, A.S.-I. Muhammad Siddiq Constable No, 799 and Ata Ullah Constable No, 439; not appellants before this Tribunal); for allegedly kidnapping and keeping one Kamran Raza son of Syed Maqsood Ali in their illegal custody since 25-2-1982; and for allegedly subjecting him to torture, resulting in his death in their custody on or about 10-3-1982.
After registration of these cases, Muhammad Saleem appellant and his accomplices absconded and were declared proclaimed offenders. The S.P., Sialkot charge-sheeted Muhammad Salem appellant and his accomplices (in absentia, due to their absconsion) for "Misconduct" and appointed the D.S.P. Narowal as the Enquiry Officer. The Enquiry Officer, after conducting a regular enquiry, under the Punjab Police (E & D) Rules, 1975, submitted his enquiry report dated 10-4-1982 to the S.P., Sialkot holding all of them guilty of the charges; and recommended imposition of major penalty including dismissal from service, against all of them. Agreeing with the findings of the Enquiry Officer and keeping in view the grave nature of allegations and wilful absence of all the accused police officials including the appellant, the S.P., Sialkot in exercise of the powers conferred upon him under Rule 6 of the Punjab Police (E & D) Rules, 1975, vide his order dated 10-4-1982 (hereinafter to be referred to as "dismissal order") dismissed from service all the accused police officials, including the appellant, with effect from 10-4-1982 (F.N.). Against that dismissal order no appeal was filed by the appellant or by any of his accomplices, before the D.I.-G. Gujranwala Range within the limitation period of 30 days prescribed under the Punjab Police (E & D) Rules, 1975 and as such the dismissal order dated 10-4-1982 became final.
2. Subsequently, Muhammad Hayat, A.S.-I., Ilam Din, A.S.-J. and Muhammad Siddiq Constable, accomplices of the appellant were apprehended by the police and challaned to face their trial before the Special Military Court, which convicted and sentenced them to different terms of imprisonment, and beyond that their fate is not known from the record of this appeal. Muhammad Salem appellant and his accomplice Ata Ullah Constable, who had absconded, and had been declared proclaimed offenders were, however, arrested on 21-4-1986, were tried under section 302/364/201/139/147/149, P.P.C. by Mr. Saha Mohy-ud-Din Khan, Additional Sessions Judge, Lahore, and acquitted under section 265-K, Cr.P.C., vide judgment dated 22-6-1987 (hereinafter to be referred to as "Judgment"). It was only then that Muhammad Saleem appellant appealed against the dismissal order before the D.I.-G., Gujranwala who vide his brief order dated 19-9-1987 (hereinafter to be referred to as the reintatement order) set aside the dismissal order and reinstated him with effect from 10-4-1982, the date of his dismissal, with all back benefits; and the period during which he remained out of service subsequent to his dismissal was ordered to be treated as leave of the kind due, and the period of his suspension, if any, was ordered to be treated as duty period.
3. Accordingly the S.P., Sialkot vide his impugned order dated 8-10-1987 ordered that the period spent out of service by the appellant was to be treated as under:--
(1) From 10-4-1982 to 7- 8-1982120 days as on full pay.
(2) From 8-8-1982 to 25-3-1983.240 days as on half pay.
(3) From 26-3-1983 to 19-9-19874 years and 179 days as without pay.
4. Against the impugned order dated 8-10-1987 the appellant represented before the D.I.-G., Gujranwala, who vide his order dated 25-10-1987 filed the representation and held that his earlier order dated 19-9-1987 would hold good.
5. It is against the impugned order dated 8-10-1987 of the S.P., Sialkot and the impugned order dated 25-10-1987 of the D.I.-G., Gujranwala that the appellant came up in appeal before this Tribunal, under section 4 of the Punjab Service Tribunals Act, 1974.
6. The learned counsel for the appellant and the learned District Attorney have been heard at some length; and the relevant record produced before us, as well as the written objections filed by the respondents, in context of the present appeal, have been gone through carefully.
7. The main contention of the learned counsel for the appellant, is that in consequence of the reinstatement order the appellant was reinstated in service w,e,f, 10-4-1982 with all back benefits and therefore, he was entitled to full pay and allowances etc., for the period extending 10-4-1982 to 19-9-1987, and as such the impugned orders dated 8-10-1987 and 25-10-1987 required to be modified accordingly.
8. The learned District Attorney has vehemently opposed the aforementioned contentions of the learned counsel for the appellant, mainly on the grounds that since Muhammad Saleem appellant had absconded after the registration of the aforementioned two criminal cases on 10th and 14th March, 1982; that he was declared to be a Proclaimed Offender; that he had remained a fugitive from law till his arrest on 21-4-1986; and that he had remained wilfully absent from duty for that prolonged period; therefore, he was not at all entitled to any pay or allowances whatsoever.
9. From the arguments of the parties, and from the record of the case examined during hearing of the appeal, it is abundantly clear that the impugned orders dated 8-10-1987 and 25-10-1987 flow out directly from the reinstatement order dated 19-9-1987 of the D.I.-G., Gujranwala. Thus for proper adjudication of the points raised and the issues involved in the instant appeal, it would be only imperative to look into the propriety and the vires of the reinstatement order dated 19-9-1987.
10. To begin with, Muhammad Saleem appellant was dismissed from service, vide the dismissal order dated 10-4-1982, the operative portion of which vis-a-vis the appellant, reads as under:-- "S.I. Muhammad Saleem No, 102/GL, A.S.I., Muhammad Hayat No,479/SKT/A.S.I., Ilam Din No, - Constables No, 799 Muhammad Siddique and No, 439 Ata Ullah were charge-sheeted under the Punjab Police (E & D) Rules, 1975 for misconduct committed by them regarding the kidnapping, wrongful confinement and allegedly torturing Kamran Raza alias Nanna r/o Qila Laxman Singh, Ravi Road, Lahore, to death as under:-- I- Muhammad Saleem. Si. No, 102/GL.
During the tenure of his posting as S.H.O., Police Station Pasrur in the year 1982 he committed the following misconduct:-- On the night between 25/26-2-1982, he visited the house of Maqsood Ali r/o Qila Laxman Singh, Ravi Road, Lahore and brought Kamran Raza, his son with him. Maqsood Ali father of Kamran Raza visited the Police Station Pasrur and requested him to release his son but he directed him to come after 4/5 days. On 9-3-1982 one S.M. Iqbal and Gulzar Bukhari, Advocate residents of Lahore, approached the A.S.P./S.D.P.O. Pasrur for the release of said Kamran Raza from his custody. A.S.P., Pasrur visited the Police Station and checked up the lock-up and other premises. Only those persons were found in the P.S. Lock-up whose arrest was formerly recorded in the Roznamcha. On enquiry by the A.S.P., it was found that he had gone for "Chehlum" duty upon which the A.S.P. asked both S.M. Iqbal and Gulzar Bukhari, Advocate to come up on 10-3-1982 when you will be present in the Police Station. On the same day i,e,, 9-3-1982 at about 9.00 p.m. be contacted the A.S.P. on telephone, who enquired about the whereabouts of Kamran Raza but he showed his ignorance, upon which he was directed to remain in the Police Station on 10-3-1982 so that the matter is resolved in the presence of aforesaid persons. On 10-3-1982 at about 6.30 p.m. when A.S.P. came back from Sialkot he found S.M. Iqbal and Gulzar Bukhari, Advocate and father of Kamran Raza present in his office. When he was summoned by the A.S.P., he was found to have gone out of Police Station for the arrest of POs against the orders of A.S.P./Pasrur. The A.S.P. recorded the statements of all the three persons and got registered case F.I.R. No, 42 dated 10-3-1982 u/s 344/365 PPC at Police Station Pasrur for kidnapping and keeping Kamran Raza in his illegal custody since 25-2- 1982. He alongwith ASI Muhammad Hayyat, A.S.I. Ilam Din and Constables Muhammad Siddique No,799 and Atta Ullah No,439 allegedly subjected Kamran Raza to torture in the presence of Mushtaq Ahmad, Fazal Din, Mushtaq Changer, Muhammad Ashraf, Ishaque Christian and Muhammad Aslam as a result of which he died in his custody on or about 10-3-1982 due to torture within the sight of aforementioned persons. In this respect, case FIR No,66 dated 14-3-1982 under section 364, P.P.C. also stands registered at P.S. Ravi Road, Lahore against him and his subordinate Police officials.
The charge-sheets alongwith statement of allegations were issued to the accused Police Officers vide this office No, 164, 165, 166, 167 and 168/EC, dated 28-3-1982. The charge sheets alongwith statements of allegations were entrusted to the various police officials for service upon the accused Police officers. But the same could not be served upon them as all of them absconded immediately after the alleged death of Kamran Raza alias Nanna in Police custody. None of them was available at the known places of their Residence. However, the charge-sheets and statements of allegations were delivered to the wives of S.I. Muhammad Saleem and A.S.I. Muhammad Hayat, whereas those were pasted on the doors of the houses of A.S.I. Ilam Din, Constable Muhammad Siddique No,799 and Constable Atta Ullah No,439 in the presence of the respectable of localities by the officials deputed for this purpose on 30-3-1983, 30-3-1982 and 31-3-1982, 31-3-1982 and 30-3- 1982 respectively.
None of the accused Police Officers either submitted his written reply to the charge sheet nor appeared before the undersigned to explain his position.
It was therefore, decided to proceed against them ex parte. D.S.P. Narowal was appointed as the enquiry officer. He has submitted his findings dated 10-4-1982 after conducting the due proceedings and recording the statements of relevant prosecution witnesses.
He has held all the accused Police Officers guilty of the charges and recommended the major penalty including dismissal from service against all of them.
I agree with the findings of the enquiry officer. Keeping in view the grave nature of allegations and the wilful absence of all the accused Police Officers. I, hereby in exercise of the power conferred upon me under rule 6 Punjab Police (E & D).Rules, 1975 dismiss all the accused Police Officers mentioned below w,e,f, 10-4-1982 (F.N.):-
(1) S.I. Muhammad Saleem No, 102/GL.
(2) A.S.I. Muhammad Hayat No, 479/SKT.
(3) A.S.I. Ilam Din.
(4) Constable Muhammad Siddique No,799.
(5) Constable Atta Ullali No,439.
Issue Orders in OB and all concerned to note.
Sd/- Superintendent of Police, Sialkot.
11. It would be advantageous to also reproduce hereunder the reinstatement order dated 19-9-1987 of the D.I.-G. Gujranwala.
"Have read an appeal submitted by Ex-S.I. Muhammad Saleem No,102/GL against his dismissal from service ordered by the then S.P./Sialkot vide his order 13777-88, dated 11-4-1982 on the charge of misconduct regarding kidnapping, wrongful confinement and allegedly torturing Kamran Raza alias Nanna r/o Qila Lakshman Singh Ravi Road, Lahore to death and having been involved in case F.I.R. No, 42, dated 10-3-1982 under section 344/365, P.S. Pasrur and case F.I.R. No,66, dated 14-3- 1982 under section 364/302/201/34, P.P.C., P.S. Ravi Road, Lahore while posted as S.H.O., P.S. Pasrur, District Sialkot.
The parawise comments offered by S.P./Sialkot have been perused. The appellant has also been heard in person in Orderly Room on 13-9-1987.
The appellant in his appeal as well as during personal hearing pleaded his innocence. He has submitted an attested copy of judgment of Additional Sessions Judge, Lahore, Saba Mohy-ud-Din Khan vide which the appellant has been acquitted of the charge.
On the basis of the judgment of Additional Sessions Judge, Lahore I set aside the order of his dismissal passed by S.P. Sialkot and re-instate the appellant in service w,e,f, 10-4-1982 the date of his dismissal with all back benefits. The period he remained out of service subsequent to his dismissal shall be treated as leave of kind due and the period of suspension if any as duty period.
Order announced. Sd/- Muhammad Amin, Dy. Inspector-General of Police, Gujranwala Range, Gujranwala.
19-9-1987."
12. It would be seen that the dismissal order dated 10-4-1982 was passed against the appellant by the S.P. Sialkot as "Authority", under the Punjab Police (E & D) Rules, 1975, which provided for a limitation period of 30 days for filing an appeal with the "Appellate Authority" i,e,, D.I.-G.
Gujranwala but it took the appellant more than five years to do so. Thus he failed to file an appeal against the dismissal order dated 10-4-1982 within the prescribed time limit in the proper forum.
Even on being arrested as a Proclaimed Offender on 21-4-1986, he did not prefer any appeal before the D.I.-G. The appellant has not challenged the dismissal order even uptil now, either in any Court of law, or before this Tribunal. It was only after the pronouncement of the judgment dated 22-6- 1987 that he filed an appeal before the D.I.-G. Gujranwala who without taking any notice of the fact that by then the appeal had already become unjustifiably and uncondonably time-barred, readily passed the reinstatement order dated 19-9-1987. Though the appeal filed by the appellant merited outright dismissal on the point of limitation alone, yet the D.I.-G. Gujranwala proceeded to pass the reinstatement order dated 19-9-1987, in flagrant violation of the relevant mandatory provisions of the 'law of Limitation', as well as of the Punjab Police (E & D) Rules, 1975, regulating "Limitation". In the aforestated circumstances, it was obviously not competent for him to have entertained and admitted the appeal, and to have passed the reinstatement order dated 19-9-1987, without first deciding the question of 'Limitation', which was of paramount importance in the case.
13. The D.I.-G. Gujranwala has passed the reinstatement order dated 19-9-1987 entirely on the basis of the judgment dated 22-6-1987; without assigning any other reason or ground, factual or legal, whatsoever, for the same; and without appreciating that the dismissal order dated 10-4-1982 against the appellant had never been a matter or an issue sub judice before the learned Additional Sessions Judge, Lahore. As already stated the dismissal order dated 10-4-1982 had been based upon the Enquiry Report of the Enquiry Officer i,e,, D.S.P. Narowal, who had found the appellant (and his accomplices) guilty of the charges inquired into. The appellant never challenged the Enquiry Report and findings of the Enquiry Officer against him, either before any Court of law, or before this Tribunal, and the same have not been even touched upon by the D.I.-G. Gujranwala while passing the reinstatement order dated 19-9-1987. Consequently, the enquiry report and the findings dated 10-4-1982 of the Enquiry Officer, as against the appellant, still stand intact and undemolished. In this view of the matter, it was not competent for the D.I.-G. Gujranwala to have set aside, just summarily and arbitrarily, the dismissal order dated 10-4-1982.
14. It has been clearly admitted in the writer objections filed by the S.P. Sialkot and the D.I.-G.
Gujranwala, before this Tribunal, in context of the present appeal, that "the appellant after registration of the criminal case against him, during March, 1982, had absconded, and was declared a Proclaimed Offender. The appellant did not remain in Jail during the investigation, and hence he did not deserve full pay for the period of his absence." The appellant has not been exonerated by the learned Additional Sessions Judge, Lahore vide his judgment dated 22-6-1987, of the aforementioned disturbing traits of his personal conduct; normally, unbecoming of a civil servant or a gentleman. The charges against the appellant in the criminal cases, if correct, were certainly heinous. In addition abuse and misuse of official position was also involved. An innocent person implicated falsely in a criminal case would not abscond, but gracefully surrender to the due process of law, face his trial in the Court of law boldly, and prove his innocence there. But the appellant preferred to flout the law of the land, to the extreme. The reinstatement order dated 19-9- 1987 of the D.I.-G. Gujranwala is totally silent about those facts. He ought to have reviewed and justified these disturbing facts of the appellant's case, while passing the reinstatement order dated 19-9-1987; but he did not consider it proper; and the omission could be due to anything but chance error or ignorance of facts or law. It was, therefore, not fair, just and competent for him to have set aside the appellant's dismissal order dated 10-4-1982 arbitrarily; and pass a perfunctory reinstatement order dated 19-9-1987, just for rewarding the appellant; for his absconsion and wilful absence from duty, for more than five years; not only with his reinstatement in service w,e,f, 10-4- 1982, but also with all back benefits w,e,f, 10-4-1982 to 19-9-1987.
15. As would appear from the judgment dated 22-6-1987, Muhammad Hayat A.S.I., Ilam Din, A.S.I. and Muhammad Siddiq Constable accomplices of the appellant, in the two criminal cases were tried by the "Special Military Court"; convicted and sentenced to different terms of imprisonment, on their having been found guilty of the charges, brought against them, by the prosecution. Had the appellant not absconded and had he been tried alongwith his aforesaid accomplices, by the same Special Military Court, at the same time, his fate would not have been different. Earlier to that, and shortly after the registration of the criminal cases, they were all found guilty of the charges enquired into by the Enquiry Officer, who had recommended imposition of major penalty against all of them, in consequence of which the appellant had been dismissed from service vide dismissal order dated 10-4-1982. The judgment dated 22-6-1987 reveals that the appellant was apprehended as late as on 21-4-1986, after his absconsion during March, 1982, and he was acquitted of the charges under section 302/364/201/ 139/147/149, P.P.C. on 22-6-1987; fourteen prosecution witnesses were examined against him (and his accomplice Ata Ullah Constable) during their trial; out which three prosecution witnesses were formal; and all the remaining eleven prosecution witnesses had resiled. Syed Maqsood Ali, father of Kamran Raza, the victim of the alleged crime the complainant and the principal prosecution witness in the criminal cases against him was not examined during trial, because by then he had expired, as deposed by P.W. 11 Aamer Hameed during the trial. The Investigating Officer, who was the most material prosecution witness in the peculiar circumstances of the case, had also not been examined. The remaining prosecution witnesses were either given up or were not examined by the prosecution. The absconsion of the appellant paid him rich dividend, and came to his rescue, because during that fairly long period, whatever incriminating evidence had been brought on record earlier either during the departmental enquiry or during the trial of the appellants' three accomplices before the Special Military Court, had gone hostile. Resultantly, the trial of the appellant ended in fiasco due to the resiling of all the prosecution witnesses examined by the prosecution against him. Thus the acquittal of the appellant resulted solely due to resiling of all the Prosecution Witnesses examined; and due to non-examination of the complainant, Syed Maqsood Ali, as well as the Investigating Officer; and as such acquittal of the appellant was neither on merits, nor because of his innocence and, therefore, not honourable. Moreover, his dismissal was not under adjudication in the Court of learned Additional Sessions Judge, Lahore, who never exonerated him of the charges of misconduct, absconsion and wilful absence from duty for more than five years. It was, therefore, erroneous, incompetent and illegal for the D.I.-G. Gujranwala to have arbitrarily ordered reinstatement of the appellant, vide his order dated 19-9-1987, solely on the basis of the judgment dated 22-6-1987.
16. Resultantly, we find that the reinstatement order dated 19-9-1987 is arbitrary, illegal, ultra vires and of no legal consequence, and the same is therefore, hereby set aside. Consequently the dismissal order dated 10-4-1982 of the S.P. Sialkot is upheld, which having attained finality is still operative, as against the appellant, with the result that he continues to remain dismissed from service w,e,f, 10-4-1982.
17. Thus the instant appeal fails, and the appellant is therefore, not entitled to any of the benefits of service w,e,f, 10-4-1982. There will be no order as to costs. A copy of this decision may be furnished to the Inspector-General of Police, Punjab, Lahore for information and requisite action.