JUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN). In this appeal, appellant Ghulam Hussain Baloch has called in question the Excise and Taxation Department's order dated 22.9.1990 where by punishment of reduction to the minimum of BPS-11 inflicted on him for a period of to years was curtailed to become effective for one year. The factual background of the impugned order may briefly be described as follows. The appellant entered Excise and Taxation Department in 1973 as Excise and Taxation Inspector, which post was redesignated in 1985 as Excise and Taxation Inspector (BPS-11). He detected to cases; one co 'ered by FIR NCf: 59/84 (State Vs. Raja Muhammad Yakoob) ( hereinafter referred as 84-case) and another relating to FIR NO: 32/86 (State vs. Jagat Ram) (hereinafter referred as 86-case). In the 84-case 2 Kgm heroin was recovered whereas in the 86-case the recovery made was 1 Kgm heroin powder, After due investigation both the cases were sent up for trial in the court of law. They ended in the conviction of the accused persons. The convicts went appeal before the Federal Shariat Court. Pending the conclusion of their appeals, the appellant got the case property involved in the said cases destroyed. On .Account of pre-mature destruction of case property he was charge-sheeted vide charge- sheet dated 21.7.1987, which was also accompanied by statement of Mr Abdul Ghafoor Shaikh, Director (Legal/Inspection) was appointed to hold enquiry into the charges made against the appellant. In his report dated 23.7.1988, the said Enquiry officer held the appellant guilty of three out of four charges. After giving him final show-casue notice, the Director General by his order dated 28.9.1988 dismissed the appellant from service. He preferred appeal to the Secretary, Excise and Taxation Department from the order of his dismissal whereupon the punishment awarded to him was converted into reduction to the minimum of BPS-11 for to years. He challenged the said order in his appeal No.14 of 1990 filed before this Tribunal. Once again his said punishment was reduced to become effective for one year. Consequently, the appellant withdraw his aforesaid appeal vide his application dated 11th October, 1990 and filed fresh appeal namely the present appeal on 18.10.1990.
The detailed arguments of the learned counsel for the appellant and the learned Govt, counsel, Mr. M. M. aqil Awan were heard and all the necessary documents relevant for disposal of the appeal were also perused.
The statement of allegations which reflects the charges against the appellant is reproduced hereunder: "STATEMENT OF ALLEGATIONS. i) That he malafidely got one kilo gram heroin powder destroyed during the destruction ceremony held 8.1.1987 which was involved in Case F.I.R.NO.32/87 although the same was neither included in the list of confiscated narcotics received from Excise and Taxation Officer, District South Karachi and nor there were any orders of the director General to this effect. ii) That he deliberately managed the destruction said 1 kilo gram Heroin powder of case F.I.R.No32/86(Slate-vs-Jagat Ram) during pendency of an appeal before Federal Shariat Court. iii) That he malafidely proposed the destruction of 2 Kilo grams heroin involved in Case FIR NO:59/84 (State Vs. Raja Muhammad Yaqoob) despite his Knowledge that an appeal was pending before Federal Shariat Court. iv) That while deliberately counseling the fact about pendency of appeals he got the properties destroyed so as to spoil the cases/evidence."
2. In his report the Enquiry Officer found the appellant guilty of only last three charges. Since the Enquiry Officer's findings were made the basis for the appellant's punishment, the discussion would be confined to assessing of the merits and demerits of such findings. As disclosed in the Enquiry Report to witnesses namely Mr. Mumtaz Ahmed Hanafi, Excise and Taxation Officer (HQ) and Mr. Niaz A. Baloch. Excise and Taxation Officer (South) were examined in proof of the charges. While explaining the procedure followed for periodical destruction of the narcotics involved in the cases ETO (HQ) told the Enquiry Officer that the list of the case properties required to be destroyed was received from the ETO, South and the said list was absolutely silent with regard to pendency of the appeal, in the to relevant cases whose properties had also been earmarked for destruction.
Confirming his statement, ETO South, Mr. Niaz Baloch deposed before the Enquiry Officer that the list of the case properties refered to by ETO Mumtaz Ahmed was drawn up on the basis of the particulars furnished by the Investigating Officer. The appellant was admittedly the Investigating Officer of the to cases under discussion, it was admitted by ETO, Niaz Baloch in his cross examination that the list of case property furnished by the appellant included both the cases of Jagat Ram (No:32/86) and Raja Mohammad Yakoob (No.:59/84). He however, clarify that due to typographical error the case No: 32/86 was written as No; 24/1986. Thus it was established from the evidence of the above witnesses that heroin involved in aforesaid to cases was destroyed although the appeals were still pending in those cases.
The destruction of case property in the said cases was not denied even by the appellant himself.
The relevant portion of his reply to the charge-sheet is as under: "3. In the circumstances, I deny the allegations that I deliberately managed the destruction of the said one kilogram heroin powder of case FIR No: 32/86 (Slates-]aguiram) during pendency of an appeal before the Federal Shariat Court.
I respectfully submit that no intimation whatever of the filing of the appeal was communicated to me and as such I had no knowledge of pending appeal before Federal Shariat Court.
4. With respect to case FIR No: 59/84 (State-v- Raja Mohammad Yaqoob) involving 2 Kilograms heroin, I submit that this case was detected on 3.7.84. The accused was challaned in the court of Sessions Judge, South, Karachi. The case was decided on 15.3.1986 and the accused was convicted and sentenced to 10 years R.I. Fine Rs.5000/- and 10 stripes. Against this sentence the accused appears to have filed appeal before Federal Shariat Court. It would appear that during the hearing of the appeal Federal Shariat Court called the case property on 15.12.86. The said 2 Kilogram heroin was produced by me in court and the court directed re-examination of the entire quantity of 2 Kilograms heroin involved in the case by the chemical Analyser. The said heroin was accordingly handed over to the chemical Analyser on 18.12.86. Fresh report of chemical Analyser was directly submitted to the Federal Shariat Court and the heroin involved was returned to me by Chemical Analyser. I respectfully submit that no further intimation as to the result of the said appeal was brought to my knowledge nor instructions regarding case property were given to me."
3. Apart from appellant's above reply, he was also examined by the Enquiry Officer. Even before the Enquiry Officer, the appellant took more or less same plea as mentioned in his reply to the charge sheet. In this connection reference may be made to Enquiry Report. The relevant portion of the report reads as under: "Mr. Ghulam Hussain Baloch in his statement had denied all the charges. While explaining his position he was stated that since he had no intimation till that day viz 28.12.86 if any appeal was filed by accused Jagatram in case FIR No:32/86 against judgement dated 6.11.86, he presumed that no appeal was filed within normal period of thirty days prescribed in similar cases and hence he reported the case property for destruction in good faith. The case of accused Raja Mohammad Yakoob also he has denied about the alleged malafide intention stating that at appellate stage he had sent the entire property comprising of 40 packets to chemical Examiner as during investigation Chemical Examiner had examined and opined in respect of only one packet. Since the cases in appeal are normally decided on the basis of trial court's record of evidence and because there had been no occasion in the past if the appellate court had required the production of the case property, he believed that it was no more required to be retained. Basides there being no proper arrangements for safe custody of narcotics due to insufficient space in Malkhana the case property had to remain in the personal custody of Investigating Officer. He therefore did not consider it proper to retain the property any longer and reported for its destruction in public interest so as to avoid the chance of pilferage."
In view of the above concessions made by the appellant both in his reply to the charge- sheet and before the Enquiry Officer there is no doubt that the case property in the above to cases was got destroyed by the appellant during pendency of the appeals in the said cases.
4. Having arrived at the above conclusion the next point to be considered is the extent of appellant's liability for such destruction of the ease property. His learned counsel was vehement in submitting that his client did not incur any liability on this account. His first argument was that the case property in question was destroyed with approval of the higher authorities and as such the appellant could not be held responsible for premature destruction of the case property, he stated that once the list of properties prepared by the appellant for the purpose of destruction went through the scrutiny of the higher authorities and got their approval, the appellant stood absolved from all the responsibility of destruction of the properties. The learned counsel further submitted that mala fide intention attributed to the appellant in the charge-sheet was not borne out by the material available on the record. On the contrary, he went on to say, the criminal cases filed, against the appellant: one on recommendations of Federal shariat Court and the other arising from private Complaint of the accused Jagatram were decided in the appellant's favour vide judgement dated 5.1.1989 of Assistant Commissioner/SDM,(Garden) South, Karachi and order dated 28.2.1987 of IIIrd Addl. Sessions Judge (East), Karachi. Basing his arguments on the decisions of these cases, the appellant's learned counsel expressed the view that the appellant was in no way responsible for premature destruction of the case properties under reference.
5. As for the case decided by the SDM, it was obviously initiated on direct complaint filed by Mr. Mumtaz Ahmed Hanafi, ETO, u/s 201 PPC. While disposing that case, the learned SDM made the following observations: - "I find undoubtedly that to prove a case of intended concealment of material evidence in order to give benefit of any sort to the accused Raja Mohammad Yakoob, the present accused Ghulam Hussain would not have sent twice the entire property to the Chemical Examiner. It was the accused Ghulam Hussain who could have sent 5 gms in the first instance for testing to the analyser. As observed earlier I am therefore of the considered opinion that in criminal law presumptions are always presumptions, they do not form a legal proof.
"From the evidence on the record, I am satisfied that the prosecution had failed to prove its case against the accused Ghulam Hussain for , any offence. The accused is therefore acquitted from the charge under section 245 Cr.P.C, having found not guilty."
6. The charge against the appellant in the above case was that he knowingly caused the disappearance of 2 kilograms of heroin in order to secure acquittal of the accused Raja Mohammad Yakoob. No doubt as per above judgement of the learned SDM the said charge was not proved against the appellant. Similarly the direct complaint filed by Jagatram that the appellant in order to misappropriate the huge amount of money he had recovered form him foisted one kilogram of heroin and challaned him in the court on 'the false charge was also dismissed by the learned IIIrd Addl. Sessions Judge, holding that "no case has been made out against the respondents/accused persons above named and therefore he complaint is hereby dismissed."
7. Tie dismissal of the Jagatram's complaint clearly indicated that his allegatum of foisting 1 kg. Of heroin on him by the appellant was found to be without truth. Despite the favourable decisions in the above to criminal cases, the fact remained that the case properties in question were prematurely destroyed on the initiative of the appellant. The approval of the higher authorities for destruction of the said case properties who also not materially help the appellant because the said approval was also based on the information furnished by the appellant himself. 1h this connection, it may be pointed out that as soon as the appellant sent up the cases of Jagatram and Raja Mohammad Yaqoob for trial in the court of law, the property involved in the said cases was entirely at the disposal of the court concerned. It had to be preserved and kept in tact until the court made any specific order as regards its disposal. The appellant who had investigated the above to cases was obliged to ascertain about the court's orders with regard to disposal of the case property involved in the said cases. Instead of doing so, he showed so much callousness that despite the pendency of the appeals in the Federal Shariat Court he included the said cases in the list compiled by him . For destruction of the case property. As for the case of Jagatram his plea is that since he did not receive any intimation about filling of appeal on expiry of normal period of 30 days from trial Court's decision, he presumed that no appeal had been filed. Such presumption not only reflected his ignorance about correct legal position but also exhibited his negligence of the worst order. The Enquiry Officer has been right in observing in this connection that had he eared to check up from the trial court before forwarding the property for destruction, the undesirable happening could have been avoided Moreover he correctly noted that the limitation for Tiling appeal was sixty days and not 30 days as had been presumed by the appellant. So far the case of Raja Mohammad Yakoob was concerned it is appellant's own admission that appeal had been filed in the Federal Shariat Court. Not only that but he was required send the entire property for retesting by the Chemical Examiner After compliance of such directions from the court, the whole quantity of heroin was handed over to him. Despite such knowledge, he did not wail for final adjudication of the case by the appellate court. Instead he got the property destroyed prematurely. His explanation that due to shortage of space in the malkhana, the property had to be destroyed in public interest was also far from convincing. In such eventuality the appellant was supposed to have obtained the court's orders for safe custody of the property or in the alternatives for its destruction. He could not arrogate to himself the power of the court and decide at his own level about destruction of the property.
8. For above reasons the appellant was certainly negligent as he did not care to enquire about the court's order with regard to disposal of the case property. As such he was responsible for premature destruction of the case property. The punishment awarded to him is already lenient and does not call for any interference. Since the appeal is liable to be dismissed on merits, it does not appear necessary to dilate upon the legal defects, if any. Accordingly the appeal is dismissed with1 no order as to costs.
Given under my hand and seal of this Tribunal this 27th day of April 1991.