MUHAMMAD ILYAS LODHI (MEMBER).---The appellant, Amjad Pervez Butt, is aggrieved by the order, dated 6-5-1993 whereby he was removed from service.
2. Briefly, the facts of the case are that on 31-12-1991, the appellant conducted raid on Tanzanian national and recovered 400 grams heroine. An F.I.R. Was lodged against foreign national in the Police Station Pirwadahi. The case property weighing 400 grams was kept by the appellant in Almirah under lock and key at the JNTF Unit, Rawalpindi. On 8-1-1992, the appellant reported that the said heroine had been stolen from the Almirah, and an F.I.R. To this fact against Mr. Bashir Anjum and others was lodged in Police Station (which was sole cause of the proceedings taken against the appellant). Meanwhile Mr. Bashir Anjum raided the famous culprits Mr. Sarwar, Drug Dealer alias Sarwari (on statement in the Police Lock-up) and recovered the same from him. A preliminary inquiry was conducted by Director, PNCB, Headquarters on 22-1-1992 and the appellant was found guilty of this offence for indirectly supply of drug to Mr. Sarwari. He was removed from service vide order dated 6-5-1993. He filed a departmental appeal on 31-5-1993 which was rejected on 20-12-1993. Hence this appeal on 8-1-1994.
3. The learned counsel for the appellant rebutted all the allegations one by one. As regards allegations 1 to 3, they are mere fact and under no circumstances, the appellant can be held responsible for that as such the charges cannot be counted against the appellant. As regards allegation No.4, the appellant's counsel stated that an accused's statement under the custody of police cannot be relied upon. Under the admitted law that for reliance a statement under section 164, Cr.P.C. Is a must. As regards, the patronising case, the accused are normally given some favour to have the information of value from them so it cannot be attributed to cause misconduct. As regards, the statement of Sarwari, the heroine was given by the appellant to him is totally false as the heroine stolen from the almirah was recovered on 12-1-1992 and was deposited in Police Station Pirwadahi, therefore, this allegation has also no leg to stand upon. Regarding allegation No.6, the learned counsel stated that it does not relate to the appellant because it is about another, Mr. Muhammad Sharif Toor and the appellant cannot be held guilty for the charge. Regarding allegation No.7, the learned counsel argued that the appellant was reluctant to raid certain drug- dealers although the assistance of Police commandos was available is again wrong and un- justified therefore, he could not raid against drug-dealers. He submitted that all the allegations levelled against the appellant are fabricated and even the Inquiry Officer in his findings has not supported the version of the respondent-department. Since the appellant got Mr. Bashir Anjum against him as the report of stolen heroine was made by the appellant against him, therefore, on his behalf all the story made is a tainted story. He prayed that the appeal be accepted.
4. The learned counsel for the respondent-department refuted all the facts and law point raised by the learned counsel for the appellant and stated that the appellant is guilty of misconduct and deserves this punishment. He argued that no discriminatory treatment is meted out with the appellant. The action against Mr. Muhammad Sharif Toor a senior official was also taken as he was also involved in this matter. He was reduced to a lower rank in a time scale. He submitted that the action taken against him is justified and prayed, that the appeal be dismissed.
5. We have heard the arguments from both the sides and also examined the charge-sheet and the statement of allegations. Charges 1 to 3 as admitted by the respondent-department in their comments are statement of facts and not an allegations. The other charges are also of general nature and are not directly proved against him as neither in thecharge sheet nor in the statement of allegations the appellant has been charged that he has violated the rules of PNCB by not depositing the recovered heroine in the Police Malkhana. The Inquiry Officer while discussing the allegations against him has also not been able to prove the inefficiency and misconduct etc. His opinion/observations is based on the circumstances under which the heroine was stolen and again recovered and also the first statement of accused Sarwari in the lock-up made him to reach the conclusion that the appellant was indirectly involved as such the appellant committed misconduct. But on the other side the Inquiry Officer in his findings has also indicated that the accused Sarwari did not collaborate and backed out from his earlier statement that heroine was supplied by the appellant to Mr. Toor who then sold the same to Sarwari. Further the respondent- department could not produce any warning ever given to the appellant that he failed to perform his official duty or avoided to take responsibility of raiding some Drug- Trafficker. Thus the charge of corruption has also not been proved against him. In the eye of law to punish the individual merely on observation is not sustainable without having any documentary support.
6. In view of the above, we have come to the conclusion that though the appellant has not been held directly responsible for misconduct and corruption, but we feel that he was careless by not depositing the heroine on the same date with the Police Malkhana. We partly accept this appeal reinstating the appellant in service with stoppage of three increments without cumulative effect.
7. No order as to costs.
8. Parties be informed.