1. JUSTICE (RETD.) UNAWAR ALI KHAN (CHAIRMAN). -- The appellant, Ch. Muhammad Latif was Inspector of Police (Now S.I;) when he was dismissed vide order of Inspector General of Police dated 22-11-1993. The factual story-leading to the above order is as follows. The appellant entered Police Department as AS1 on lst November, 1976. Subsequently he was promoted as Sub Inspector.
2. On 23rd November 1992, he was. Served with a show-cause notice containing allegations of general nature. Although he submitted his reply to the said notice, yet he alongwith other police officers who were also given similar notices find Writ Petition No. D-3042 of 1992 in High Court.
3. Thereupon revised show- cause notice was issued to the appellant. He submitted his reply to the said notice. According to the appellant's version, two enquiries were conducted against him. One by Ch. Muhammad Ashraf Ghuman, DSP and another by Asad Jehangir DIGP and in consequence thereof the charges against the appellant were drooped vide order dated 24th May, 1993, and the case was decided accordingly by the DIGP. . Despite such decision, the IGP gave him final show- cause notice, exercising his powers of revision under rule l2 of the Sindh Police (Efficiency and Discipline) Rules, 1988 (hereinfter referred as the said rules). Th appellant submitted his reply to the said show-causticness'. The IGP ultimately passed the order of appellant's dismissal as mentioned, above. Left with no other alternative, the appellant find review petition to the IGP who refused to entertain the same vide his order dated 23-1-1994. Hence this appeal which has been find on 27-1- 1994.
4. The two learned counsel of the appellant namely M/s. M.L. Shahani and Muhammad Aqil Awan were heard, beside the Government counsel, Mr. Habib Rashid Submitted his arguments. We also went through the relevant documents carefully.
5. This case was started with service of show-cause notice dated 23-11-1992 on the appellant. In his detailed reply dated 4-12-1992, the appellant made categorical denial of the allegations. Despite that he alongwith twelve other police officers who were also given similar notices find Writ Petition No. D-3042 of 1992 in consequence whereof revised show-cause notice with elaborated grounds of action was substituted place of the original notice. In the revised show-cause notice dated 21 -3- 1993, the elaborated grounds of action are as under: " You Inspector Muhammad Latif Chauhdry allegedly have assumed style of lining beyond your ostensible means; enjoy persistent reputation of being corrupt and have in your possession following properties disproportionate to your 'known sources of income, which you have acquired through unfair means:-
(i) Own a bungalow No. 21 /30Vi highly decorated on 1000 Sq. Yard in Model Colony and have been residing there.
(ii) Invested huge amount at your native place on transport and purchase of Agriculture lands.
(iii) An accused Sultan Ahmed S/o Ch. Muhammad Akram has confessed before Army Authorities that you, daring your posting in CIA and Brigade Police Station had arrested him being a hardened criminal and his involvement in many heinous crimes, but he alongwith his gang was released by your after getting bribe.
(iv) Reportedly you have been patronising Car lifters/dacoits. You had picked up some daeoties/car lifters for their involvement in dacoities at Gulvers Travel Agency, Zeeshan Jweller and Season Jewllers. They have disclosed that they were previously picked up by you during your posting at P.S. Brigade for their involvement in dacoities. They have also confessed.
(a) Looting of KIL oil at Glias Mandi.
(b) Looting a General Store on Nishter Road Near Lasbela Chowk.
(c) Looting of delivery Van of Gold Leaf Cigarettes at Nazimabed.
(v) You had arrested about three gangs of dacoits about 20 in number and released them u/s 169 Cr.P.C, after taking bribe of Rs. 3.00,000/-.
(vi) You have been indulging in such practices during your stay at various Police Stations.
6. The above allegations against you constitute charge of "CORRUPTION" within the meaning of Rule 3(c) of the Sindh Police (E&D) Rules. 1988:"
7. Once again the appellant repudiated all the charges made against him hereinabove, accompanying the revised show-cause notice. The service of the show-cause notice instead of the charge sheet was indicative of the Authority's intention to adopt the procedure mentioned in sub-clause (i) of Clause (b) of sub-rule (3) of Rule 6 of the said Rules. Thus the procedure followed by the Authority did not envisage holding of a regular enquiry. However in para 5 of his memo of appeal the appellants statement is that two enquiries were conducted, one by Mr. Ch. Muhammad Ashraf Ghuman. DSP and the other by Mr. Asad Jehangir Khan DIGP. In the corresponding para-5 of the written statement all that has been admitted is that the DIOR Karachi got an enquiry conducted through Mr. Muhammad Ashraf Ghurnan DSP/SDPO Ferozaabad. We have also come across the said DSP's report dated 17-2- 1993 made to the DIGP, Karachi. In the concluding para of his report he has expressed his view in these words: "Inspector Chowdhry Abdul Latif is not at fault and found innocent. Hence no action against him is required." But the enquiry held by afore- mentioned DSP was not held in accordance with the said rules. Neither it was held in presence of the appellant nor any witness was examined in course of the enquiry nor the appellant was allowed any opportunity for his defence. Even a copy of enquiry report was not supplied to the appellant.
2. As for the other enquiry allegedly made by the DIGP, Asad Jehangir Khan of which the mention has been made by the appellant. In his memo of appeal it is not admitted by the other side.- Nevertheless our attention was invited to the Annexure 'G' at page-57 of the case file which obviously is a report submitted by the said DIGP to the Commander, Head Quarter, Corps Reserve 5 Corps Malir Cantonment, karachi. The said report is based on certain enquiries made with regard to the appellant. There is no trace on evidence before us to hold that the said report was the outcome of any enquiry personally made by the DIGP, Asad Jehangir Khan. In any case in the said report too die appellant has been exonerated. This is clear for the concluding para of the report, which reads as under: "From the enquiries it reveals that the allegations against Ch. Abdul Latif are based on presumptions and the allegations are unfounded and baseless."
8. The DIGP has passed the final order dated 24-5-1993 which is the culmination of the disciplinary proceedings taken out against the appellant. It may be pertinent to refer to last para of the order which reads as under: "5. In view of the above, it is not possible to take a decision unless documentary/her proofs regarding allegations are available. As such, it is recommended that a fulflaged departmental enquiry should be initiated and an E.O. Nominated to resolve this matter before final decision is taken. The; Inspector ha's already been released from suspension by the IGP Sindh vide Order No. 7171 /E.II, dated 4-5- 1993, will be decided later on."
9. It would be noticed that the above order is neither of punishment nor of exoneration of the appellant. It is rather a direction for holding a fresh full-dress enquiry in the matter for which Enquiry Officer was to be nominated. Keeping the DIGP's said order in view, the appellant's learned counsel submitted that the provisions of sub-rule (i) of rule l2 of the said rules under which the IGP has passed the impugned order were not attracted for upsetting the DIGP's said final order. The amended version of the said sub-rule is as under: "(i) The Inspector General. Additional Inspector General, a Deputy inspector General and a Superintendent of Police may call for and examine the record of any case and
(a) may award any punishment specified in sub-rules (a) and (b) of rule 4, in any case in which no punishment has been awardech and
(b) confirm, enhance, modify or annual the punishment in any case in which any punishment specified in sub-rules (a) and (b) of rule 4 has been awarded; and make or direct to be made further investigation before passing orders."
10. Alter going through the above Sub rule, we regret our inability to endorse the interpretation made by the appellant's learned counsel of the said Sub rule. The IGP had power under the afore said sub-rule to call for and examine the record of "any case" which in our opinion, includes even the case of the present nature in which the order involved is neither of punishment nor of exoneration but is of fresh proceedings.
3. However we are uhable to support the IGP's impugned order on merits. The reasons given by the IGP in support of his order are seemingly based on presumptions. No tangible evidence has been produced on record to substantiate his conclusions. In any case such evidence has not been brought to the notice and knowledge of the appellant nor has he been afforded opportunity to take care of the site. That is why the D1GP in his order had felt the necessity of holding a full- dress enquiry through Enquiry Officer. Because unless the evidence referred to in the IGP's order is formally produced before Enquiry Officer in cause of enquiry held in presence of the accused official (appellant) who is again given opportunity to counter the said evidence both through cross-examination of the witnesses producing such evidence and by examining his own witnesses in defence, it can not be used for the purpose of inflicting punishment on him.
4. Apart from above, as required by sub-rule (4) of rule 6 of the said rules, on receipt of the appellant's reply, as no formal enquiry has been heid in the present case, the Authority had to first determine if the allegations made against the appellant were proved and it was only in that case that he could proceed further to award any of the prescribed punishments to him. As stated above neither formal enquiry was held against the appellant in his presence nor any material in the nature of evidence was supplied to him alongwith the show-cause notice. Therefore only two documents namely the show-cause notice and appellant's reply were before the IGP for determining the guilt of the appellant. Any other material even if within the knowledge of the IGP could not be used against the appellant if it had not been first brought to the notice of the appellant, allowing him opportunity of defence against such material. In these circumstances the IGP was not in a position to hold that the charges made against the appellant were proved.
11. Moreover it was rather difficult to accept the un-corroborated and untested views of the IGP, about the appellant1 s guilt in the face of the clear findings of not only of the DSP. Muhammad Ashraf Ghuman who had made an informal enquiry but also of the DIGP, Karachi whose role in the present case was of Authority. Both the said officers are unanimous in declaring that the appellant could not be punished in. The material before them, though the authority (i.e. The DIGP) while passing the final order had directed that fresh full-fledged enquiry by held through Enquiry Officer to be nominated for the purpose. We .May also refer to the Supreme Court authority reported as Aslant Warraich versus Secretary Planning and Development Division (1991 SCMK 2330) wherein it was held: "In the light of the foregoing discussion we accept these appeals and remand the causes to the departmental concerned for consideration of the representations submitted from the respondent's side on merits and to decide the same by reasoned orders. And with the further directions that the reasons should also be conveyed to the respondents. The respondents shall be at liberty to amend their representations and include additional grounds either of facts as alleged in two Civil Petitions dealt herein or of law. There shall be no order as to costs."
12. The above authority clearly shows that the reasons that influenced the decision of the IGP as Revising Authority should have first been conveyed to the appellant giving him chance of meeting the same. In the light of above discussion we are inclined to agree with the DIGP^file. Authority, in this, case) that this is a fit case in which comprehensive enquiry be held taking care for strict (compliance of the requirements of the rules.! Accordingly we allow the appeal with no order as to costs and set aside the impugned order. The case is remanded back to the Authority- concerned for holding full-dress - enquiry beginning with service of necessary charge-sheet and statement of allegations on the appellant.
13. Given under our hands and the seal of this Tribunal this 13th day of April, 1994 at Karachi.