1. JUSTICE (RETD.) MUNAWARALI KHAN (CHAIRMAN).---In this appeal, Mr. Atta Muhammad Awan, the ex-Assistant Superintendent, Jails has called in question the order of his compulsory retirement from service dated 24th January, 1987, made by the I.G.P. Prisons, Sindh.
2. The facts leading to the passing of the impugned order are briefly stated as follows. On 3-7-1984 the appellant was incharge of the Dadu Jail when 12 prisoners escaped from the said jail.
3. According to the appellant's version as given in the memo. Of his appeal, the jail was overcrowded and certain notorious dacoits confined in the jail were waiting for execution of punishment of lashes inflicted on them. Apprehending the seriousness of the situation, the appellant apprised the highups including the Deputy Commissioner, Dadu, Superintendent of Police, Dadu and the I.G.P.
4. Prisons, Sindh of the situation, requesting them for making proper security arrangements. However, nothing was done. On the contrary after the escape of the prisoners from the jail, the appellant was taken into custody and was challenged to face the trial before the Military Court. He was ultimately convicted and sentenced to 3 years' R.I. And fine of R.5 lacs. As stated in para.8 of the memo. Of appeal, the appellant preferred petition under section 7(1) of MLO 107 for grant of pardon and on recommendations of various Martial Law Authorities the MLA Zone "C ultimately granted him pardon. Meanwhile on the basis of his conviction, the appellant was dismissed from service vide IGP, Prisons' order dated 19-7-1984. After the appellant was pardoned by the MLA, Zone "C his penalty of dismissal was converted into that of compulsory retirement by the impugned order. The appellant preferred departmental appeal dated 25th August, 1990 to the Secretary, Home Department which was however rejected by the order, dated 3rd September, 1990. Within 30 days of that order, the appellant came up in the present appeal.
5. We heard the arguments of Mr. Syed Zaki Muhammad on behalf of the appellant and Mr. Hayat Qureshi appearing for the official respondents. We also went through the relevant written material available on record.
6. It is an admitted position that the major penalty of dismissal from service which was subsequently converted into that of compulsory retirement, was awarded to the appellant in consequence of his conviction by the Military Court. It was complained by the appellant's learned counsel that prior to imposing of the said penalty, the appellant was neither given show-cause notice nor was afforded the opportunity of personal hearing. While making this argument, the learned counsel seemed to have overlooked clause (a) of Rule 8 of the Sindh Civil Servants (Efficiency and Discipline) Rules, 1973. For comprehending the implication of the above clause, it is reproduced as under:-- "(a) where the accused has been convicted by a Court and sentenced to imprisonment of fine on the charges involving moral turpitude, in which case the competent authority shall, on receipt of intimation of the conviction, make an order dismissing or removing the accused from service or reducing him in rank as it deems fit, provided that in case of conviction on charges of corruption the accused shall be dismissed from service."
7. It is thus clear that as soon as the intimation of the appellant's conviction was received, he was straightaway dismissed from service in terms of the above rule which obviously provides no scope for show-cause notice or personal hearing.
8. The next submission of the learned counsel for the appellant was that although it was declared in unambiguous terms by the impugned order itself that the appellant was not criminally liable for the escape of the prisoners from the Dadu Jail yet he was not allowed the consequential relief by way of reinstatement in service. The learned counsel stressed that the appellant was entitled to reinstatement in service automatically on the strength of the impugned order whereby he was exonerated from the only liability for the prisoners' escape from the jail. In view of this argument, we called upon the appellant's learned counsel to tell us if his client had challenged his conviction in the competent appellate Court and if so what was the result of his such move. We noticed that the learned counsel avoided giving a straight reply to our above querry. Instead he informed us that the appellant was pardoned by the MLA Zone "C.
9. It may be pertinent to refer to para. 8 of the memo. Of appeal which evidently throws light on our above question put to the appellant's learned counsel. The said para. Reads as under:-- "8. That the appellant preferred petition under section 7(1) of MLO No. 107 for the grant of pardon which was recommended by different Martial Law Authorities to the Martial Law Administrator Zone "C and ultimately the appellant was pardoned."
10. In the same context, reference may also be made to para. 2 of the appellant's petition, dated 6-10- 1985 addressed to the MLA Zone "C which reads as under:-- "(2) That the petitioner has submitted review petitions dated 28-4-1985, 8-5-1985, 14-5-1985 to the Deputy Martial Law Administrator, Sector 2, Hyderabad and dated 6-6-1985 (copy enclosed for ready reference) to the Martial Law Administrator Zone "C Karachi to set cede the convictions on the facts and grounds explained therein and to ~t4nstate the petitioner in services, but in spite of the fact that a long ,period of six months has passed, the decision of reinstatement of the petitioner still remaining held up."
11. From the appellant's above recitals we are convinced that no proof was forthcoming with regard to filing of regular appeal by the appellant against the order of his conviction. All that he had repeatedly prayed for was that he be pardoned and reinstated in service. So there is absolutely no indication available in record nor the appellant's learned counsel was able to show us any copy of judgment/order of the competent Court to the effect that the appellant's conviction was set aside.
12. It would appear that the appellant's efforts succeeded only partially inasmuch as that on recommendations of the various Martial Law Authorities, he was granted pardon.
13. The question arose if the "pardon" earned by the appellant had the effect of his acquittal of the charges. The reply to this question would obviously be in the negative. The pardoning of the appellant was meant to say that while retaining his conviction, the remaining period of his imprisonment was terminated and he was in consequence released from jail. Since his conviction remained intact the appellant could not claim reinstatement in service. As pointed out above, the appellant's conviction by the Military Court was the sole basis first for his dismissals from service and then for his compulsory retirement. So long the said basis was left undisturbed, the appellant could not be taken back in service. Nevertheless, with allowing "pardon" the penalty of dismissal awarded to him was also reduced to that of compulsory retirement. Coming to the observations made in the impugned order that the appellant was not criminally liable for escape of the prisoners from the jail, it may be pointed out that such observations could not be construed as his complete exoneration from that charge. As a matter of fact the departmental authority, how high so ever, had no jurisdiction to give such verdict about criminal liability of the appellant. Having been found guilty of the aforementioned charge and consequentially convicted by lower Military Court, it was only within the jurisdiction of the higher appellate Court to hold that he was not criminally liable and consequentially set aside the conviction and sentence passed against him.
14. Accordingly the said observations are of no legal consequence and are liable to be ignored.
15. In view of the above discussion, the appeal is dismissed with no order as to costs.