JUDGMENTABDUL HAMID KHAN, MEMBER. Shah Muhammad ASI/25 while posted in District Multan in 1987 was proceeded against departmentally on the following charge:- You AS1 Shah Muhammad No. 25 are reportedly instrumental in making P.W. Rasool Bakhsh ( the only public witness of historical case of recovery of 21 Kilo Heroin, 50 Kilo Opium and 1 Kilo Charas) as hostile. Rasool Bakhsh is recovery witness in case FIR No.154 dated 28.5.1987 u/s 3/4 Tmli Munashiat Act, P.S. Lohari Gate. This witness has also got his statement u/s 164 Cr. P.C. Recorded in the court of R.M. Lodhran, denying the factum of recovery and this was done with your connivance."
2. A show cause notice containing the above charge was served on the appellant which was denied by him. After taking into consideration the defence produced by the appellant the Authority i.e. Sr. Superintendent of Police, Multan/Respondent No.1 imposed on him the major penalty of reduction in pay by to stages. The departmental appeal Tiled by him before the D.I.G.Police Multan/Respondent No.2 was also rejected. He has now filed the instant appeal before this Tribunal under section 4 of the Punjab Service Tribunals Act, 1974 against the aforesaid impugned orders dated 1.2.1988 and 5.3.1989 of Respondent No.1 and Respondent No.2 respectively.
3. We have heard the counsel for the parties and have also examined the relevant record produced before us. The learned counsel for the appellant's main contention was that this was a case of no evidence and that the entire proceedings had been conducted without any basis or material and the show cause Notice was based on presumptions and suppositions. There was nothing on record to show the appellant's connivance in the matter of the statement. In fact, by the lime the departmental proceedings were initialed against the appellant nothing had happened which could indicate that Rasool Bakhsh had turned hostile. The .Learned counsel for the appellant further submitted that this was a case which involved a factual controversy as to whether the statement in question was got recorded with the connivance of the appellant which charge had been denied by him and this controversy could only be resolved by holding a regular inquiry. This was, therefore, not a fit case to dispense with the regular enquiry by resorting to shorter proceedure of show cause notice. No motive has been attributed. According to the learned counsel for the appellant the most glaring aspect of these proceedings was that both the impugned orders have been passed when the real background relating to the statement of Rasool Bakhsh under section 164 Cr.PC was fully known to both the Respondents as the matter had comprehensively been thrashed out in the judgement dated 21.12.1987 of the Sessions Judge, Multan wherein it was clearly stated that the said statement had been given bv Rasool Bakhsh under coercion. It was, therefore, obligatory upon the respondents to take notice of the fact of which judicial conisancc had been taken.
4. The learned D.A. In his reply to the above contentions of the learned counsel for the appellant mainly relied on the written objections submitted by the respondents and stated that the appellant was guilty of misconduct as he was instrumental in making Rasool Bakhsh, the only public witness to recovery, turn hostile.
5. The contention of the learned counsel for the appellant that the show cause notice was based on presumptions and suppositions and there was nothing on record the show the appellant's connivance in this matter has not been controverted in any manner by the respondents beyond saying that the appellant's explanation to the show cause notice was found unsatisfactory. There is no evidence available on record connecting the appellant with the aforesaid statement of Rasool Bakhsh P.W. Under section 164 of Cr. P.C. The record made available to the Tribunal by the respondents also no-where indicates that Rasool Bakhsh was associated with the departmental enquiry. During the course of theproceedings the appellant was not confronted by prosecution with any witness or documentary evidence which could conned him with the statement to establish that he had really been instrumental in making Rasool Bakhsh give the statement under section 164 of Cr.P.C. This could have been done only if a regular enquiry had been held in which both the parlies were given an opportunity to prove or rebut the charge through evidence and cross examination. The matter being controversial and the charge being of serious nature was not a fit case to dispense with the regular enquiry and adopt the shorter procedure. On these to counts we are fortified in our views by the judgments in PLD 1989 SC 335 Samiuddin Qureshi Vs. Collector of Customs 1989 SCM R 561 Abdul Ghaffar Qureshi Vs. Federation of Pakistan and this Tribunal's judgement in case No.537/70 of 1984 Amir Khan Vs. S.P. Jahlum and D.I.G. Police, Rawalpindi.
6. In view of the fact that there was no direct/lcgal evidence to show that the appellant had influenced P.W. Rasool Bakhsh in giving statement under section 164 of Cr.P.C, the impugned orders have evidently been passed on presumptions and suppositions. Since the misconduct attributed to the appellant has not been established on the basis of any positive evidence beyond reasonable doubt, we proceed to accept the appeaj and set aside the impugned orders. There are no orders as to costs.
Copies of the signed judgement be released to the parties according to the procedure of the Tribunal.