MR.MOHAMMAD MEHMOOD ASLAM PIRZADA, CHAIRMAN. - Muhammad Nisar Khan, Ex-Additional District and Sessions Judge, has filed this appeal under Section 4 of Punjab Services Tribunals Act 1974 impleading Government cf the Punjab, through Chief Secretary, Government of the Punjab, SGA & Information Department, Lahore and the Chief Justice and Honorable, Judges of Lahore High Court, Lahore through Registrar, Lahore High Court, Lahore as respondents. Through this appeal the appellant has prayed that impugned order dated 4.8.1983 whereby the appellant has been retired compulsorily from service be set aside and the appellant be declared to be in the continuous service.
2. Salient features of this case preferably are that in the year 1978 while appellant was posted as Additional District & Sessions Judge Mianwali, one Aman Ullah Khan Shahani made an oral complaint to the Chief Justice of Lahore High Court alleging that appellant owned a lot of land bearing No. 367 in Rakh Hyderabad Tehsil Bhakkar, District Mianwali and was getting it cultivated through his influence without any payment. On 19.3.1978, learned Chief Justice deputed Mr. Justice S.S. Jan to make a spot enquiry into the matter. The learned Judge visited the spot and recorded statements of some persons. He found that prima-facie a case exists against the appellant.
Consequently appellant was transferred from Mianwali to Bahawalnagar. The High Court also directed the appellant to submit his reply regarding the allegations levelled against him. Appellant submitted his reply on 13.6.1978 and on finding his reply unsatisfactory the appellant was suspended and a full-fledge enquiry was ordered, into the matter. Accordingly the appellant was served with a chargesheet alongwith the statement of allegations as under:- i) that while posted as Additional District & Sessions Judge Mianwali, he abused his official position.
In that he by himself as well as through the local police compelled the residents of the district in which he was posted to provide tractors and labour free of charge and without any compensations for the development and cultivation of Lot No. 367 in Rakh Hyderabad in Tehsil Bhakkar of District Mianwali. ii) That when, called upon to state his connections with the aforementioned lot, he in his explanation dated 13.6.1976 addressed to the Registrar of High Court stated that he had not been arranging cultivation of the aforementioned lot which did not belong to him while he knew that the statement made by him was not true.
3. After getting the reply of the charge sheet from the appellant the then Chief Justice appointed Mr. Justice Gul Baz Khan to hold an enquiry. The learned Judge after recording the statement of witnesses found the appellant guilty of charge No.1 whereby the authorized officer (Chief Justice) agreeing with the findings of enquiry officer recommended to the Government, compulsory retirement of the appellant from service. The case was examined by Secretary SGA & Information Department who opined that no connection of the appellant has been established with the land, therefore, the appellant was entitled to exoneration and it was proposed that he may be exonerated of the charge. The Chief Secretary recorded a note dated 19.4.1979 and submitted to the Governor, which was approved and Mr. Saeed Ahmad Qureshi, Chairman P&D Board, Punjab was deputed to exercise the powers of authority in the case against the appellant. The authority heard the appellant and give his verdict that the appellant has no interest with the land as the enquiry was held by the Judge of High Court and Chief Justice acted as authorized Officer, the best course would be to remand the case to the Chief Justice for further probe in to the matter.
Accordingly approving the recommendations of the Chairman P&D Board, the Governor remanded the case to the authorised officer. As no reply was received from the authorised officer, a summary was placed before the Governor for re-instatement of the appellant in the ground that he could not be retained under suspension for indefinite period. As such the appellant was reinstated on 7.7.1982. The learned Chief Justice, however, informed the Governor that enquiry officer was not inclined to record further evidence and the evidence already recorded was sufficient material against the appellant. It was suggested that the appellant be served with a show cause notice and he also an opportunity of personal hearing. The appellant was accordingly served with show cause notice and was heard in person by the Addl Chief Secretary acting on behalf of Chief Secretary who vide his note dated 13.3.1983 recommended that he be exonerated from the charge so bevelled against him. The Chief Secretary marked his case for examination to the Additional Secretary (Services) who vide his note dated 27.7.1983 found that the finding of the Additional Chief Secretary were with respect to charge No. 1. Consequently, he submitted the case to the Chief Secretary who passed the following order:- "I have gone through the record of enquiry and other material on record. I do not agree with the views expressed by the A.G.S. His reasoning is not send. To be contrary I agree with enquiry officer and the authorised officer. The accused officer may be relied compulsorily from service."
Against the order dated 4.8.1983 appellant filed review petition before Governor and as the same was not decided within a period of 90 days. The appeal on behalf of. Appellant was filed before this Tribunal which was accepted by majority judgment dated 28.6.1984. Civil appeal No. 164 of 1985 was preferred before Supreme Court which decided on 10.5.1988, the operative portion of the judgment reproduced below: "We have heard the learned counsels for the parties, by going through the evidence on record, we are of the opinion that the majority of the learned Members of the Tribunal was influenced by technical flanes existing in the case and did not have the occasion to thoroughly examine evidence on record as regards charge No.1. The evidence recorded in case is to be examined in order to determine whether the respondent was to oblige his Khaloo in the matter of cultivation of the land through the people of the locality without payment as alleged against him. This allegation is very conspicuous on the face of the record and the evidence has been recorded in this behalf but the learned Tribunal did not have the occasion to go into this aspect of the case in order to determine the guilt or otherwise innocence of the respondent with respect to Charge No.1 in the light of the definition/connotation/corruption and misconduct: On the view of the matter that we set aside the impugned order and while accepting this appeal, we remand the case to the Tribunal with direction to attend to the case on the lines set out above and decide the case one way or the other. There will be no order as to costs."
4. In the light of the Judgment of Supreme Court of Pakistan I have heard the learned counsel for the parties at length and have perused the entire record of this case with care. During the course of arguments learned counsel for the appellant has vehemently assailed the impugned order dated 4.8.1983 mainly on the following grounds:- i) that learned Enquiry Officer did not appreciate the evidence and the appellant was illegally held guilty. ii) that the learned Enquiry Officers had totally ignored the evidence of summoned police officer who fully denied the charge and made it clear that the appellant was victim of Malik Gul Sher and Aman Ullah Khan Shahni leading Zimindars of Illaqa whom he annoyed. iii) That once it was held by Enquiry Officer himself that the appellant was neither the owner nor cultivating the land, the allegations that the appellant had been arranging for its cultivation is not borne out from the relevant record. iv) that there was no direct evidence on the record to connect the appellant with charges levelled against him.
On the other hand Malik Azam Rasool learned counsel for the respondent No.2 as well as learned D.A. Have fully opposed the appeal and submitted that the appellant had rightly been held guilty of charges No.1 on the basis of evidence available on the file. Both the learned counsels prayed that the appeal be dismissed.
5. I have given my anxious thought to the arguments advanced by the parties and find that learned Enquiry Officer relying on the evidence of Ahmad Ali P.W. 25, Zafar Ali, P.W. 30 Shahswar P.W.
31 had come to the conclusion that lot No. 367 did not belong to the appellant. In view of this finding. I will not discuss the statements of these P.Ws, aforementioned. I am now left with charge No.1 that the appellant through good offices of the police officers was sending tractors as well as un-skilled labour on this lot in order to improve its conditions and get it cultivated, in this regard I will discuss Nasarullah Khan I.W. 1 and Abdul Wahid Gill I.W. 2, according to their statement the party of Ghulam, Rasool Bombewala and Gulsher is headed by Aman Ullah Khan Shahani. They daily visit Police Station with a work. They denied that the appellant ever asked them to provide any labour for the said land and for its development. They further state that police officers who did not at according to the wishes of Gul Sher and his party-men, complaints were made against these police officers. They also state that there were 2 factions in Mankera and Rakh Hyderabad and each group wishes that police should work as tool in their hands. Both the witnesses have corroborated each other on material particulars.
6. With evidence on record of these to witnesses before the learned Enquiry Officer the motives of Aman Ullah Khan Shahani and his party men Gul Sher etc have been clearly established. Mulazim Hussain P.W.8 owned landed property at a distance of one furlong from the lot of Mirza Zafar Ali who has categorically stated that this land belonged to Mirza Zafar A1; and he did not see the appellant to get the land cultivated. He has given the reasons of the visit of the appellant, which the appellant himself accepted in his explanation that 'Khaloo' of the appellant was an employee of Mirza Nisar and Zafar Ali, therefore, his visits were of personal nature. He also did not notice tractor of any person except that of Mirza Zafar Ali plying in the field. Similar is the statement of Muhabat Ali Khan P.W.9, I am now left with the witnesses who came up to implicate the appellant directly by stating that the appellant himself asked them to do job. These are Faqir Muhammad P.W. l2 and Pehlwan P.W. 22 and Ghulam Rasool P.W.
23. The first 2 are considered to be unworthy of notice by the Enquiry Officer himself. Perusal of statement of P.W. 23 does not lead to any convincing impression. He claims that although he was not friendly with the appellant the appellant used to make tea with him at a hotel near his 'arbat shop' his version lacks credibility.
There is lot of evidence to this effect that land belongs to Mirza Zafar Ali and his brother Mirza Nisar has been supervising the operations. In case these persons had transferred their interests to the appellant, they need not have actively participated in the operations, the enquiry report is silent on this aspect. Viewed in this context I have no hasitation to reject their evidence as motivated as well as unbelievable as they state at the instance of Gul Sher who has been proved to be a party men of Aman Ullah Khan Shahani. After making analysis of the evidence on record, the appellant has fully proved the connection of witnesses with Aman Ullah Khan Shahani and Gul Sher. It is also established from the evidence that they belong to Rakh Hyderabad and Mankera which is a place of Gul Sher, Ghulam Rasool Bombewala and Muhabat Khan and it would be convenient for these witnesses to be the party-men of Aman Ullah Khan Shahani as well as grudge against the police who easily managed this sort of evidence before the learned Enquiry Officer. It would be very difficult for the Police to arrange to supply agricultural machinery when they had strained relations with regard to the statement of Process Sarver Suleman P.W. 7 the evidence is not confidence inspiring. Similarly I do not find in the statement of Zafar Ali stating him any where that he took help of the appellant for levelling the send dunes.
7. As regards admission of the appellant that he has been visiting his 'Khaloo' would be natural for human being to keep in touch with relatives who were placed in a situation which demanded attention from a better person in life like the appellant. The conclusion drawn by the learned Enquiry Officer that it was the appellant on whose instance to police officers have been compelling witnesses to work in field are based upon conjectures as there was no direct evidence to the effect that the appellant had asked Nasar Ullah S.H.O and Abdul Waheed Gill A.S.I and they had done so in order to oblige the appellant. It would be hardly believable that the appellant ever asked the certain officers to look-after his 'Khaloo' just to save the meagre salary of Rs. 300/- and would render himself vulnerable to such like charges.
8. After analysing the whole case I am fully convinced that the appellant has been wrongly held guilty and senior officers of the Government of the Punjab were fully justified to exonerale the appellant.
9. In the light of above discussion I proceed to accept the appeal, set aside the impugned order and direct that the appellant be reinstated in service. The period during which he remained out of service shall be treated as leave without pay. There will be no order as to costs.