1. ' MUNAWAR ALI KHAN (CHAIRMAN).---The appellant, Hamzo Khan Solangi was a Police Constable in the District Nawabshah when SP, Nawabshah, by his order dated 20th October, 1992 dismissed him from service. The factual background of the appellant's dismissal is as follows. The appellant was, proceeded against under the Sindh Police (Efficiency and Discipline) Rules, 1988 (hereinafter referred as the said Rules) for the first time when he was serving as Police Constable Sukkur District.
2. As a result of the said proceedings he was dismissed from service vide order of S.S.P., Sukkur dated 9-3-1987. The appellant went in appeal against the said order to the D.I.-G.P., Sukkur who by his order dated 26-3-1987 set aside his dismissal directing further that the legal requirement of final show-cause notice be fulfilled. Accordingly the appellant was reinstated in service and after giving him final show-cause notice, he was once again dismissed vide S.S.P., Sukkur's order dated 9-1- 1987. This order was also challenged in departmental appeal filed before the D.I.-G.P. Who by his order dated 9-8-1988 set aside the SSP's order on the ground that the appellant's reply to the final show-cause notice was not awaited. After due compliance of the legal formalities the S.S.P., Sukkur vide his order dated 15-8-1989 awarded to the appellant the major punishment of forfeiture of his two years' approved service beside, reduction in his pay. Thus the first chapter of departmental proceedings against the appellant was closed.
3. ' Thereafter the appellant was transferred to Nawabshah District. In the said District he was once again served with a charge-sheet dated 28-7-1992 accompanied by statement of as many as 14 allegations. The appellant in his detailed reply rebutted the said charges. However, Mr. Qadir Bux Rind, Inspector of the S.P., Nawabshah's office was nominated as Enquiry Officer to probe into the allegations against the appellant. After completing the necessary enquiry the Enquiry Officer submitted his report to the S.P., Nawabshah. Although the Enquiry Officer exonerated the appellant from all the charges, yet the S.P., Nawabshah by the impugned order mentioned above dismissed the appellant from service, basing the said order on unanimous resolution passed in the meeting of the Committee comprising the D.C., Nawabshah, the SP, Nawabshah and the Group Officer of Special Branch convened in pursuance of the instructions of the I.-G.P. The appellant challenged the order of his dismissal in the Departmental appeal filed before the D.I.-G.P. Who by his order dated 10-3-1994 rejected the same. Hence the present appeal which was filed on 10-4-1994.
4. ' We heard Mr. Abdul Sattar Mughal for the appellant and Mr. Abdul Ghani Sheikh on behalf of the official respondents. We also carefully went through all the documents relevant for the disposal of the appeal.
5. ' It would be pertinent to reproduce the list of allegations accompanying the charge-sheet served on the appellant. It reads as under:--
(1) You produced forged Sbhool Leaving Certificate at the time of appointment.
(2) You had unauthorisedly encroached upon the graveyard of Christians in Sukkur.
(3) You were sheltering the criminals and other Anti-Social elements.
(4) You brought two women in your house for immoral purpose at Sukkur.
(5) You were reported to be running gambling den.
(6) You extorted Rs. 50 from the son of Tanga-driver at Sukkur.
(7) You went to the house of Bhooral and forced him to give hand of his daughter to Usman and issue him threats of dire consequences.
(8) You committed theft from the house of one Khadim Hussain Shah at Sukkur.
(9) You entered in the house of brother of Moula Bux seeing his wife alone for immoral purpose.
(10) You were reported to be indulging in anti-social activities in the Mohallah.
(11) You were reported to be belonging to the gang of dacoits and robbers. You gangmen C/1551 Abid Shah and C/110 Allah Bux of Sukkur District were arrested in Cr. Case No, 134/89 under section 17/3, EHO PS B-Section, Sukkur. Besides you have got two brothers namely Abdul Fateh and Khadim Hussain and cousin who are also of dubious and shaby character and challaned in so many cases as per list attached.
(12) You have unauthorisedly occupied house belonging to Soomra tribe at Taj Colony, Nawabshah. You also unauthorisedly occupied several other houses and given on rent.
(13) You were residing in a house unauthorisedly occupied alongwith your brothers and reported to be involved in anti-social elements and criminal activities.
(14) Due to involvement in anti-social elemen6 and criminal activities you were transferred from Sukkur District and posted to Nawabshah District to mend your habits but did not take any care and complaints involving in criminal activities are received."
6. ' We have to see if the above charges were proved against the appellant. Because as provided in sub-rule (4) of rule 6 of the said Rules punishment could be awarded to him only on proof of the said charges. Admittedly detailed enquiry was held to ascertain the truth of the above allegations.
7. Mr. Kadir. Bux Rind, Inspector in office of the SP, Nawabshah was appointed as Enquiry Officer. We have perused the enquiry report submitted by the said Enquiry Officer. It would appear from his report that the appellant did not admit his guilt. After recording his such plea, the Enquiry Officer proceeded to discuss the allegations serialwise. His finding with regard to individual allegations are as under:-- "Here I would discuss serial wise allegations as there seems no material evidence against the defaulter C/1703 Hamzo Khan Solangi:
(1) As regards that defaulter has produced forged School Leaving Certificate at the time of enrolment in Police Department. He has produced attested copy of School Leaving Certificate of Government Primary School Nao Goth, Sukkur which is valid and thus 1st allegation could not be proved.
(2) No material evidence is on record. Hence could not be proved.
(3) No any proof or identity of the ladies is available.
(4) No material, evidence came-on record.
(5) The allegation of running of gambling den is not supported by any evidence.
(6) No Conga driver or his son is identified. Hence allegation could not stand.
(7) Whereabouts of Bhooral are not given/known. Hence could not be proved.
(8) This allegation regarding commission of theft from the house of one Khadim Hussain is denied so could not be proved.
(9) NO material evidence is on record.
(10) As above.
(11) This allegation is also not .Proved against the defaulter as he is not involved or challaned in the Case No, P-134/89 under section 17(3), EHO of P.S. Section, Sukkur. Brothers of the defaulter were involved by Khosa Community who are facing trial. This is the result of not terms between the two tribes. *(12) This allegation regarding unauthorisedly occupying the House belonging of Soomro tribe and other several houses given on rent could also not be proved as there is no circumstantial evidence on record.
(13) No criminal record is available against this constable.
(14) This allegation is also denied as in the transfer order issued by worthy D.I.-G., Sukkur for his transfer from District Sukkur to District Nawabshah clearly shows that this transfer order was made on the request of defaulter not due to his criminal activities but due to enmity of his brothers with Khosas he had made such request. (Copy of the Order No, B-II/18444-45, dated 10-10-1989 is enclosed."
8. ' Providing further the Enquiry Officer has recorded his comments in the following Words:- "Defaulter C/1703 Hamzo Khan Solangi was promoted to the Rank of Head Constable vide SP, Nawabshah's Order No, OB/2729, dated 9-12-1990 in recognition of his satisfactory performance as a special case (copy of the order is enclosed). The defaulter was suspended with effect from 19-7- 1992 vide order No, OB/1890, dated 19-7-1992 and still under suspension. The_defaulter was regularised in the Rank of Head Constable in his own pay and grade vide No, OB/1133, dated 8-5- 1991 on the retirement of NC/233 Muhammad Rafique as a special case. Case F.I.R. No, 75/87 under section 302/307/452/148/149, P.P.C. And 13-DAO of P.S. "B" Section, Sukkur dated 7-7-1987 lodged by Complainant. Muhammad 'Ibrahim father of present defaulter C/1703 Hamzo Khan Solangi shows that there was enmity between the tribes of Khosa and Solangi. The motive was running of Suzuki's on hire at Abad Suzuki Stand, Sukkur. On the day of incident viz. 7-7-1987 at 09-00 hours persons of Khosa Community namely Bajar Khoso, Ashique, Wazir, Nizam, Ayub and Fareed all by caste Khosa trespassed the house of complainant (father of present defaulter) duly armed with deadly weapons and made direct firing with the result (Mst. Nooran) mother of defaulter and brothers, son named Abid Hussain were injured seriously. They were taken to Sukkur Hospital for treatment but they both expired on the way. Hence this F.I.R. (Copy of F.I.R. No, 75/87 of P.S. "B" Section) is enclosed herewith.
9. ' Defaulter has also submitted copy of judgment of the Court of IVth Additional Sessions Judge, Sukkur vide Sessions Case No, 390/83 Cr. No,105/83 under section 307, P.P.C. Read with sections 114/34 and 504 of P.S. "B" Section, Sukkur, in which defaulter Hamzo Khan and his father Muhammad Ibrahim were stated as accused, the Hon'ble Court was pleased to acquit the accused under section 345, Cr.P.C. And their bail bonds were not at liberty. (Copy of the judgment is enclosed herewith).
10. ' Defaulter Hamzo Khan, alongwith his two brothers, Khadim Hussain and Abdul Fateh were challenged in the Court of joint Civil Judge and FCM, Sukkur vide case F.I.R. No, 160/86 under section 380/457, P.P.C. And 14, Hudood Ordinance of P.S. B-Section, Sukkur and after usual trial the Hon'ble Court was pleased to acquit all the three (3) accused under section 245(i), Cr.P.C. And cancelled their bail bonds (copy of the judgment is enclosed herewith).
11. ' As regards the remaining cases as per list attached against the brothers and father of defaulter, from perusal of enquiry papers, it revealed that cases were registered by the Khosa due to previous enmity and deponents in the cases,are facing trial in the concerned Courts."
12. ' In the end of his report the Enquiry Officer recorded his findings as under:-- "In view of the foregoing discussion and enquiries conducted by the undersigned. I am of the opinion that defaulter C/1703 Hamzo Solangi at Police Lines, Nawabshah may be exonerated from the charges and his suspension period may be decided as duty as the allegations levelled against the defaulter could not be proved."
13. ' After careful perusal of the enquiry report, we are in no doubt that the Enquiry Officer was fully convinced that there was absolutely no case against the appellant who has therefore, teen completely exhonerated by him from all the charges. Despite such clear-cut findings of the Enquiry Officer, the appellant has not only been punished but he has been awarded the extreme penalty of dismissal from service. Since the charges made against the appellant were not proved, the question arose what material formed the basis of the appellant's major punishment? For answer to this question we will have to look into the impugned order. For this purpose it may perhaps be helpful to reproduce the said order in verbatim reads as under:-- "In pursuance of the Inspector-General of Police Sindh, Karachi's Letter No, 18567/E. V., dated 8-9- 1992, a Committee comprising of Deputy Commissioner, Nawabshah, Superintendent of Police, Nawabshah, and Representative of Special Branch viz. Group Officer, Nawabshah was convened and its meeting was held in the office of the undersigned on 13-10-1992 at 10-00 hours to review the case of C/1793 Hamzo Khan Solangi. The instructions of the Inspector-General of Police, Sindh, Karachi contained in the Letter No, U.O./21106-9/E.V., dated 11-10-1992 received under Ends. No, PA/415, dated 14-10-1992 of the Deputy Inspector-General of Police, Sukkur were also kept in view. It was resolved in the said meeting unanimously that C/1703 Hamzo Khan Solangi of this District came in purview of Category of 'D' involved in criminal cases; and involved in the following cases:--
(1) F.I.R. No, 24/89 under sections 353 and 332, P.P.C. Of P.S. Rohri.
(2) F.I.R. No, 100/89 under sections 307 and 353, P.P.C., P.S. Rohri.
(3) F.I.R. No, 101/89 under section 13, E.H.O. Of P.S. Rohri.
(4) F.I.R. No, 50/83 under sections 323 and 147, P.P.C. Of P.S. B-Section, Sukkur.
(5) F.I.R. No, 105/83 under sections 307 and 34, P.P.C. Of P.S. B-Section, Sukkur.
(6) F.I.R. No, 160/86 under sections 457 and 380, P.P.C. Read with section 14 of P.S. B-Section.
(7) F.I.R. No, 147/86 under sections 457 and 480, P.P.C. Of P.S. B-Section, Sukkur.
(8) F.I.R. No, 5/85 under sections 457, 511 and 506(2), P.P.C. P.S. A-Section, Sukkur.
14. ' His brothers namely Khadim Hussain, Abdul Fateh and Cousin were also involved in so many cases. He is also involved in so many other bad elements viz. Running, of gambling dens, bringing women for immoral purpose, sheltering to the criminals, trespassing the houses illegally. He had also occupied so many houses in Taj Colony, Nawabshah unauthorisedly and given on rent.
15. ' In view of the above facts, the committee arrived at the decision that he would not prove to be a good Police Officer in future and recommended for his dismissal from service. There is such approval of the Government of Sindh, I.-G.P., Sindh, Karachi and D.I.-G.P., Sukkur also on record. In view of the decision of the Committee, he is dismissed from service with immediate effect. His suspension period from 19-7-1992 to 20-10-1992 is treated as such."
16. ' It is clear from the above order that it was based on extraneous consideration which could not be held as substitute for the proof of the charges made against the appellant. He could not be punished on mere allegations or his mere involvement to criminal cases nor any punishment could be awarded to the appellant on the basis of unanimous resolution passed by the High-ups of District whatever be their opinion that alone could not be made the basis of the appellant's punishment. In absence of the convincing proof of the allegations made against the appellant the impugned order of his dismissal from service was not legally sustainable. As such we allow the appeal and set aside the impugned order with no order as to costs.