JUSTICE (RTD.) MUNAWAR ALI KHAN, (CHAIRMAN).- The appellant Tasdiq Waris was posted as ASI, Sindh Reserve Police, at Naushero Feroz when by the order dated 2-2-1992 of the S.S.P. Sindh Reserve Police, Sukkur, he was awarded major penalty of dismissal from service. He challenged his dismissal in the departmental appeal filed before the DIGP, Reserve Police Karachi. As the appeal remained undecided until after the expiry of 90 days' period, he approached the service Tribunal in the present appeal, with prayer that the impugned order be set aside and he be re-instated in service, allowing him the full back benefits.
2. The factual background of the appellant's dismissal as gleaned from the name of his appeal is as follows. Consequent upon recovery of two stolen motor vehicles from the garage of one Shahzado Abbasi, the FIR No.75/91 was lodged at city police station. Khairpur. It was disclosed by Shahzado Abbasi, that the said vehicles were parked in his garage by his close neighbour, Naveed Ahmad who was ultimately arrested by police and placed on trial in the Court of the competent jurisdiction. The appellant who was also arrested in connection with the theft of the aforesaid cars, was informed by the police that he had been involved by the accused Naveed Ahmad. As no such incriminating statement was made by the said Naveed Ahmad against appellant, the latter was let off. Nevertheless the appellant was placed under suspension vide S.P. Reserve Police Sukkur's order dated 20-8-1991. On the same day he was served with the show- cause notice, with allegations that it transpired in course of the investigation that two motor vehicles secured from Shahzado Abbasi were jointly stolen by him and Naveed Ahmad. The appellant submitted his reply to the above notice denying the allegations of theft of the cars. He was however given personal hearing and was thereafter Reinstated in service w.e.f. 13-10-1991. But to his great surprise he was suddenly dismissed from service by the impugned order.
We heard Mr. Muhammad Aqil Awan- for appellant and Mr. Habibur Rasheed submitted his arguments on behalf of the official respondents. We also went through the relevant documents.
3. The departmental action which culminated in the appellant dismissal was initiated with the service of the show-cause notice dated 20-8-1991 on him. The said notice reads as under.
In the exercise of the powers conferred under rules 6 (3) (b) of the Sindh Police (Efficiency and Discipline) Rules, 1988,1 Superintendent of Police, SRP, Sukkur, hereby call upon you. ASI Tasdiq Waris of Sindh Reserve Police, Sukkur to show-cause within 7 days of the receipt of this show-cause notice as to why any of the penalty as prescribed under rule 4 (b) of Sindh Police (E&D) Rules 1988 may not be imposed upon you for committing following acts of misconduct, inefficiency, corruption etc."
"That one Suzuki car No.200-975/Karachi was recovered which was stolen property wanged in Crime 59/91 u/s 14 EHO of Police Station Khawaja Ajmeer Nagri, Karachi and one Suzuki pick up No. C-1968, Karachi wanted in Crime No.145/91 u/s 14 EHO Police Station Khawaja Ajmeer Nagri were recovered from the house of Shahzado Abbasi resident of Khairpur by SHO Ranipur on 3-6- 1991.
During investigation it transpired to have been stolen by ASI Tasdiq Waris of SRP Sukkur with the association of co-accused Naveed of Khairpur."
4. That as reported SP Khairpur under his No.CB/8364-65 dated 10-8- 1991 you are reported to be mixed-up with thieves, and criminals.
2/- Now therefore as required under the said rules, you are called upon to explain your conduct within the stipulated period of 7 days stating therein clearly whether you wish to be heard in person.
3/- In case your explanation is not received within the stipulated period, it shall be presumed that you have nothing to say in your defence and action will be taken ex parte as required under rules."
The Sindh Police (Efficiency and Discipline) Rules, 1988, (hereinafter referred as the said rules) under which the appellant was proceeded against provide three modes of procedure: namely, (a)
Summary Proceedings (b) General Proceedings (c) Special Proceedings vide rule 6 of the said rules. As is clear from the aforementioned notice, the appellant's case was dealt with in accordance with the mode of 'General Proceedings' which inter alia provided that if enquiry was not deemed necessary the competent authority by order in writing shall inform the accused of the action proposed to be taken against him and the grounds of such action and he shall also be given opportunity of showing cause against the said action. As stated in the show-cause notice the allegation against the appellant was that in course of investigation of FIR No. 75/91 of City Police Station Khairpur it transpired that he in association with co-accused Naveed Ahmad had stolen the aforementioned motor vehicles. However, in his reply to the notice the appellant had vehemently denied the allegations of theft.
5. As required by such-rule (4) of rule 6 of the said rules on receipt of the explanation (reply) of the accused, the competent authority shall have to determine whether the charge has been proved arid in ease it has been proved the said authority may award one or more prescribed punishments.
The question arose what material the competent authority had before him for determining if the charge had been proved or not against the appellant. It goes without saying that no document whatsoever was supplied to the appellant while giving him show-cause notice. Even the notice itself is silent in this connection. In the circumstances the competent authority was obviously confined only to consideration of two documents namely the show-cause notice served on the appellant and the latter's reply to the said notice. The first mentioned document merely contained the allegations and the second one denial thereof. On consideration of these two documents alone, the conclusion to be reached by the competent authority could not be that the charge of theft had been proved against the appellant. For proving such charge tangible evidence was necessary which unfortunately was entirely missing in the case. If the charge was held as not proved, the question of awarding punishment to the appellant would not arise.
May be the competent authority was morally convinced from investigation papers of the theft case of the two motor Vehicles that the appellant was mixed up in the theft of the vehicles. But his moral satisfaction could not be accepted as legal proof of the charge nor could it be made as basis for the appellant's punishment. We are not Gn-aware that in those disturbed days some unscrupulous police personnel have established links with the criminals so much so that instead of performing their moral role as security agents, rather custodians of law, inspiring the much -needed confidence in the citizens of the country, they invariably joined hands with the criminal elements in committing various crimes . Both directly and indirectly. Even if we believe the police to be true in their thinking that the appellant was from the said criminal class of the police personnel and had hand in the theft of the two recovered' motor vehicles, yet he could not be punished without legal proof. As pointed out above, sub-rule (4) of rule 6 of the said rules which insists on strict proof of the charge has got to be complied with, in the case in which the departmental action was taken in accordance with the mode of "General Proceedings". No doubt the standard of proof required under the mode of "Special Proceedings" was comparatively same what lenient. As such the cases with weaker evidence could perhaps be effectively processed in accordance with the said proceedings. Whether the provision of the "Special Proceedings" in the said rules .Could stand the test of constitutional validity could be examined in the light of paragraph (a) of clause (3) of Art. 8 of the Constitution. For the better appreciation of this point clauses (1) and (2) and para t (a) of clause (3) of the said Article are reproduced as under: "8.(1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.
(3) The provisions of this Article shall not apply to:-
(a) any law relating to members of the Armed Forces, or of the police or of such other forces as are charged with the maintenance of public order, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them; or................"
It is clear from the above Article that the law relating to Armed Forces and Police Force need not be consistent with the fundamental rights. Thus in application of the law to the police force, the said force has been bracketed with , the Armed Forces. As separate laws and rules exist for the Armed Forces and separate Courts deal with the case of the said forces, similar arrangements could be made in case of Police Force. The criminal tendencies now-a-days found amongst the police force are too dangerous for internal peace and security of the country. Unless they are curbed with iron hand, the (Country's social fabric which has already suffered on account of criminal activities of the wayward police personnel, will in due course of time be completely destroyed. It is therefore high time that immediate effective measures be taken over hauling the police force, seeking radical improvement thereof. Amongst other steps, it would be advisable to frame special laws/rules for police force, and set up separate Tribunals to deal with their cases so that even the remote possibility of their getting the advantage of the leniency of the ordinary laws/rules could be avoided.
6. Reverting to the appellant's case, it would be noted that the only charge against him is of mixing up with the theft of two motor vehicles. But there is no evidence whatever to prove that charge. The appellant's name does not appear in the FIR relating to the theft of the motor vehicles. The stolen vehicles were recovered from Shahzado Abbasi's garage. According to him they were parked in his garage by his neighbour Naveed Ahmad. Thus Shahzado Abbasi has .Not implicated the appellant's name. Naveed Ahmad who was ultimately challenged in the said theft case was said to have given confession in course of the investigation of the case. We have perused the certified copy of his confession . Which clearly shows that he alongwith Saleem Baig and Irfan had stolen the two cars involved in the case under discussion. As regards the appellant he states: "As I and Tasdiq Waris son of Abdul Sattar by cast. Waris, resident of Khairpur were already displeased with each other over the cash dealing, due to this dispute I have given the name of Tasdiq Waris. He does not know about this offence". Thus the only culprit who was sent up in Court and had even confessed his guilt of having stolen the two cars in question exonerated the appellant in as much as that he did not know about the theft of the two motor vehicles. Moreover the appellant had not been challenged. Of course when he was arrested in theft case, he was informed by the police that Naveed Ahmad had involved him in theft of the cars. But as stated above, Naveed Ahmad contradicted the police, exonerating him from the theft of the two motor vehicles. On the contrary he made it clear in his confessional statement that he had taken the name of the appellant in connection with the theft due to his previous dispute with him over some cash dealings. With this clarification coming from accused Naveed Ahmad, no other evidence remains to prove the charge of the theft against the appellant.
In view of above discussion we have no alternative but to allow the appeal. Accordingly the appeal is allowed with no order as to costs and the impugned order is set aside.
7. Given under our hands and the seal of this Tribunal on 29th day of September, 1992 at Karachi.