1. MUNAWAR ALI KHAN (CHAIRMAN): --In this appeal, the Ex---ASI Zulfiqar Ali Wagan, has called in question the order of his dismissal from service, which was passed in the circumstances as follows.
2. While the appellant alongwith three Constables namely C/7072, Amir Bux, C/2556 Muhammad Saiful and C/8091 Mulazim Hussain were detained for Special duty at Bodlo Bridge of Rohri Canal, on 7-11-1989, they left their duty at their risk and went to the village Mubarak Lashari about two Kilometres away from the place of their duty and opened fire in the said village as result of which one villager Mubarak Lashari, died. The FIR was registered at the P.S. Padiedan and the said Police party including the appellant and three Constables were taken into custody. On the aforesaid ground, the appellant was served with charge-sheet accompanied by statement of allegations. In his reply, he categorically denied all the above allegations. Thereupon the DSP, SRP, Sukkur was appointed as Enquiry Officer. The DSP, Saleem Hussain Shah submitted his findings and recommended for awarding punishment to the appellant. However, the enquiry was further entrusted to R.I. SRP, Larkana who after completing the verification and perusal of the case file, recorded his findings recommending severe punishment for the appellant. Agreeing with his recommendations the SSP of the Sindh Reserve Police, Sukkur, vide his order dated 8-2-1992, awarded to the appellant major penalty of dismissal from service. He challenged the said order in his departmental appeal dated 28-5-1992, made to the DIGP, SRP, Sindh, Karachi. But the same was rejected by the DIGP's order dated 5-4-1993. It is from this- order that the present appeal was filed before this Tribunal on 6-5-1993.
3. We heard the arguments of Mr. Abdul Sattar Mughal for the appellant and Mr. Abdul Latif Ansari, AAG for the official respondents. With their assistance we also went through the relevant documents.
4. The statement of allegations which provides the basis of this case reads as under:-- "You ASI Zulfiqar Ali for Sindh Reserve Police, Headquarter Sukkur (now under suspension) has committed the acts of gross misconduct, inefficiency, dereliction of duty and corruption in that:
(1) You ASI Zulfiqar Ali Wagan alongwith C/8094 Mulazim Hussain C/7073 Amir Bux, C/2556, Muhammad Saifal were detained for duty at Bodlo Bridge of Rohri Canal. On 7-11-1989 at about 20- 15 hours 4 you alongwith above constables left duty on your own risk and went in the village Mubarak Leghari Deh Dal, PS Padiedan where you have fired with Government weapons and one villager namely Mubarak Lashari was injured., and later died. As such case FIR was registered against you vide No. 118/89 under section 307/302/34, P.P.C. At Padidean and you were arrested.
5. Hence liable for disciplinary action..
6. It goes without saying that the appellant has denied the above allegations in his detailed reply. As disclosed in the impugned order of the appellant's dismissal from service, regular enquiry was held by two Enquiry Officers; initially by Saleem Hassan Shah, DSP, SRP, Sukkur and then by R.I. SRP, Larkana. Both of them are shown to have submitted their findings, manifestly holding the appellant guilty and recommended for awarding severe punishment to him. However, the plea taken by the appellant in paras. 11 and 12 of his memo of appeal reads as under:-- "11.That the appellant thereafter on several occasion time and again had appeared before the aforesaid Enquiry Officer namely Salim Hussain Shah, DSP, Sindh Reserve Police, Sukkur but neither his statement was recorded nor any witness was examined before him nor any other process was being taken into consideration for the purpose of enquiry proceeding 12 --------------------------------------------------------------------------------------- -- The appellant V such again approached the Enquiry Officer who had returned the enquiry papers vide his letter No. Nil, dated .23-9-1991 without recording or examining or even completing the enquiry proceedings against the appellant but with recommendation of award of severe punishment. It is again pertinent to mention here that the aforesaid illegal void, baseless enquiry proceedings were not even supplied to the appellant for his reasonable defence."
7. No doubt in paras. 8 and 9 of the written statement, the appellant's above plea has been refuted.
8. But when the learned AA.-G. Was asked to show us the enquiry papers including the statements recorded by both the Enquiry Officers and the reports (findings) submitted by them, he expressed his inability to do so, as according to him such papers were not available on record. Again his reply to our further question if copies of Enquiry Reports submitted by two enquiry officers were supplied to the appellant was in the negative. He also admitted that following the completion of the enquiry, no show-cause notice was given to the appellant calling upon him to show cause why in the light of findings of the Enquiry Officers specific punishment should not be awarded to him. With all these legal flaws in the disciplinary proceedings taken out against the appellant, the order of punishment emerging from such proceedings cannot be legally supported.
9. On the above ground perhaps the wiser course would be to remand the case back to the Authority concerned for fresh hearing. But we are sorry to note that even merit-wise the departmental case stands on weak wicket. Of course the allegations against him are that he alongwith his abovementioned three constables had made firing in the village Mubarak Lashari as a result of which one villager had died and even a criminal case was registered against him which is still pending in the Court. The important point for our consideration was if the said charges were proved against the appellant independently of the Court's case. Admittedly the criminal case in respect of the charges, which are the subject-matter of this appeal has not yet been decided. It would be premature to anticipate the decision of the Court. It was not claimed even by the learned AA.-G. That these charges were proved in course of the enquiry held by the two Enquiry Officers. As per order of punishment, all that was proved against the appellant was that he was implicated in the criminal case and the punishment of dismissal had been inflicted on him on his mere involvement in the criminal case. In this connection the instructions received from CPO Sindh, Karachi have been cited in the punishment order. In pare. 3 of the order it is stated:-- "In accordance with the instructions received from the C.P.O. Sindh, Karachi, vide his number 10062/C/II, dated.3-6-1991 received through Range Office, Karachi ends. No. SRP/Admin.7009-16, dated 6-6-1991 that all the officers/men who are facing criminal process are to be dismissed from service irrespective of the judicial process as the departmental proceedings are different subject- matter-------"
10. It is true that as stated in the above instructions, the departmental proceedings and Court proceedings are two independent proceedings even though both the proceedings may relate to the same charges. But that does not mean that proving of the charges should not be insisted upon in the departmental proceedings and mere involvement of the accused official in Criminal Court proceedings should be acted upon as the sufficient basis for his punishment in the departmental proceedings. Such a criterian will surely set a dangerous precedent, as it would become easier for the opponents to file a false criminal case against any police official and on that basis seek his ouster from service regardless -of ultimate decision in that case. Moreover, it would militate against the express provision of the rules (vide sub-rule (4) of rule 6 of the Sindh Police (Efficiency and Discipline) Rules, 1988) that punishment is awarded on proof of the charges and not otherwise.
11. Despite our views expressed above, we cannot be oblivious of present state of crime prevailing in the country. There has been general complaint that some unscrupulous members of security forces join hands with the criminals in committing crimes of robberies, dacoities and snatching of motor vehicles. Even otherwise it looks rather shocking that police personnel who are considered as custodians of life, honour and property of the citizens should themselves indulge in committing crimes, against them and ultimately end up in Jail. So if the high-ups of Police Department desire to Make mere involvement of police official in a criminal case, a basis for his punishment necessary amendment would have to be made in Sindh Police (Efficiency and Discipline) Rules, 1988, expending the scope of the definition of "misconduct" to include even involvement or implication in any criminal case. Until such amendment is made, it is not possible to base punishment merely upon the involvement or implication of police official, in any criminal case. The criminal charges should either be independently proved in the departmental proceedings by leading proper evidence in course of the enquiry or the decision of the Criminal Court be awaited and in case of conviction, necessary action be taken against the accused official even departmentally.
12. For the foregoing reasons, the appeal is accepted with no order as to costs and the impugned order of appellant's dismissal is set aside. As has been observed above, it would be open to the departmental authorities to hold fresh enquiry strictly in accordance with the aforesaid rules and prove the allegations against the appellant as contained in the statement of allegations, independently of the Court case, unless they decide to wait for Court's decision and then punish him in the light of that decision.