' NOOR MUHAMMAD MAGSI (MEMBER).---Appellant Muhammad Sharif Toor has filed this appeal before the Service Tribunal against the PNCB's order dated 6-5-1993 regarding his reduction to lower rank from Inspector (BPS-14) to FIO (BPS-11) passed by the Chairman, PNCB and order dated 31-1-1994 of rejection of departmental appeal by the Appellate Authority (Secretary, NCD), with the following prayer:-- "In view of the foregoing, it is respectfully prayed for and on behalf of the petitioner/appellant that the impugned orders dated 6-5-1993 and 31-1-1994 may kindly be set aside. It is further prayed that the respondents may also be directed to allow the appellant to draw his salary accruable to him during the aforesaid period of suspension. Any other relief which this learned Tribunal may deemed to be just and fair in the circumstances of case may also graciously be granted to the appellant alongwith costs."
2. The brief facts of the case are as under:-- "A case F.I.R. No, 394, dated 31-12-1991 under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 was registered in the Police Station Pir Wadhai, Rawalpindi. The case was investigated by Mr. Amjad Pervaiz Butt, Ex-FIO, JNTF, Rawalpindi. The case property i,e, heroin was kept by Amjad Pervaiz Butt, Ex-FIO in his almirah under lock at the premises of JNTF Rawalpindi on 8-1-1992. Mr. Amjad Pervaiz Butt reported that the case property placed in his almirah had been stolen. A preliminary inquiry was conducted by Director(Intelligence), PNCB Headquarters. The inquiry was under process, in the meantime Mr. Bashir Anjum, FIO, Rawalpindi alongwith other staff members conducted another raid on 22-1-1992 and recovered 1 Kg. Heroin and 300 grams Charas from a notorious drug dealer namely Sarwar alias Sarwary. The case F.I.R. No, 50, dated 221-1992 was registered against the accused at Police Station Viaris Khan, Rawalpindi (Anexure II). During investigation the accused Sarwar stated in his statement .That he was being patronized by two PNCB's Officers, JNTF, Rawalpindi vis-a-vis Mr. Sharif Toor (appellant) and Mr. Amjad Pervaiz Butt, Ex-FIO. The accused also revealed that out of 1 Kg. Heroin recovered from him 350 grams heroin was given to him by Mr. Sharif Toor (appellant). After getting stuff from Mr. Amjad Pervaiz Ex-FIO's resident at Bakra Mandi, Rawalpindi, Rs,14,000 were paid by him to the appellant. The Director (Intelligence) during the inquiry recorded statements of witnesses and submitted the following findings to the Chairman, PNCB:
(i) From the statements recorded, it has been proved beyond any doubt that Muhammad Sharif Toor, appellant had very close relations with drug dealer Sarwar alias Sarwary, who is a very well known drug dealer. Sarwar also runs a prostitution den in Rawalpindi.
(ii) The statement of Sarwar is very clear about the involvement of Sharif Toor, appellant and Amjad Pervaiz Butt, Ex-FIO in the drug business.
(iii) Muhammad Sharif Toor, appellant had gone to Police Station Civil Lines, Rawalpindi to meet the accused Sarwar and threatened him of dire consequences if he divulged anything against him.
Sharif Toor admitted this even before Regional Director, Islamabad.
(iv) Muhammad Sharif Toor, Appellant has been running around in helping the Sarwar's release from the PNCB, which can be clearly seen from the statements of Nadim Mir and others. .(v) There is evidence to prove that Sharif Toor and Amjad Pervaiz Butt are involved in the theft of 350 grams of heroin from the Almirah and its sale to Sarwar.
' Upon the findings of the preliminary inquiry Chairman, PNCB ordered to proceed departmentally against the appellant and appointed Director (Enforcement) as Authorised Officer under Government Servants (E&D) Rules, 1973. The Authorised Officer served a charge-sheet dated 13-4- 1992 alongwith statement of allegations on the appellant (Annexure III). The appellant submitted his written reply to the Authorised Officer on 3-5-1992 (Annexure IV). The Authorised Officer appointed an Inquiry Officer under Rules 5(2) of the Government Servants (E&D) Rules, 1973. The Inquiry Officer conducted the inquiry as required under rule 6 of the Government Servants (E&D)
Rules, 1973. The Inquiry Officer cross-examined the appellant and provided him every opportunity of self-defence. The Inquiry Officer submitted his report dated 22-12-1992 to the Authorised Officer.
The Authorised Officer served a final show-cause notice dated 11-1-1993 alongwith a copy of the inquiry report on the appellant (Annexure V). The appellant submitted his written reply dated 24-1- 1993 (Annexure VI). He was also heard by the Authorised Officer in person but he could not adduce anything in his defence. The Authorised Officer after going through the findings of the inquiry report and reply to the final show-cause notice found the appellant guilty for inefficiency and misconduct and recommended imposition of major penalty of reduction to a lower post or time scale as defined in Rule 4(1) of Government Servants (E&D) Rules, 1973. In the light of the recommendations of the Authorised Officer, the Chairman, PNCB in the capacity as Authority passed the order of his reduction to lower post (from Inspector BPS-14 to FIO BPS-11)."
3. We have heard both the parties and their counsel. The learned counsel for the appellant reiterating the grounds of appeal alleged that impugned orders dated 6-5-1993 and 31-1-1994 are unlawful, illegal, arbitrary, unreasonable, without jurisdiction or in excess of jurisdiction, and the same be declared a nullity and of no legal effect in the eye of law as the appellant was awarded a major penalty of reduction in rank without adopting the legal procedure. He further argued that the alleged 350 grams heroin, which was allegedly sold by the appellant and Pervez Butt, FIO to accused Sarwar for Rs,14,000 which formed the sole basis of this departmental inquiry against the appellant, was deposited by Pervez Butt, FIO in the "Malkhana" Pir Wadhai Police Station on 12-1-1992 as per para. 1 of page 18 of the Enquiry Officer's report (Annexure "D"). The Enquiry Officer simply observed that the fiction of deposit of the said heroin was not brought to the notice of Senior Officer. In view of the matter, Pervez Butt, FIO can be held responsible and not the appellant. He further alleged that as regards allegations Nos. 4 and 7, the Enquiry Officer on page 18 of his report has observed:-- "The rest of the allegations Nos. 4, 5, 6, 7 and 9 are based on the statement of accused Ghulam Sarwar before PNCB officials of the JNTF, Rawalpindi ' The statement recorded by the Enquiry Officer of the accused Sarwar when he was in custody of PNCB and that too during preliminary inquiry held by Irshad Hussain, Director (P.W.). As such the same had no evidentiary value against the appellant particularly when the same was made during the preliminary inquiry and the same was later on retracted before the Enquiry Officer (respondent No,4). It is a cardinal principle of law that only those statements of witnesses can be relied upon which are made during the regular inquiry conducted in accordance with the provisions of Rule 6 of Civil Servants (E&D) Rules, 1973. Further the learned counsel stated that at page 12 of the inquiry report the Enquiry Officer has observed:-- "He (Sarwar, accused) deposed in his statement during the course of Departmental Inquiry in the presence of accused officials that he was compelled by PNCB staff for giving statement against Muhammad Sharif Toor (appellant). He was beaten in a room of PNCB Office and Bashir Anjum, Nagar and Sohail Nadeem (PNCB officials) instigated him for giving such a statement and thus he will get release Then due to fear he stated the same as directed by Bashir Anjum (Investigating Officer)."
' Statement made by accused Sarwar and Bashir Anjum to the Enquiry Officer fully supported the above version of the accused that allegations contained in the chirge-sheet were forcibly extracted from him against the appellant by the PNCB officials/officers. As such these are totally false and baseless and the appellant cannot be condemned on the basis of such so-called confessional statements. The accused Sarwar (P.W.) who was challaned in a case F.I.R. No,50/92 of Police Station Pir Wadhai and was subsequently convicted and sentenced to life imprisonment and this case related to the recovery of one kilogram and 30 grams of heroin from Sarwar, accused (P.W.) out of which 350 grams heroin was allegedly supplied by the appellant and Pervez Butt.
During the investigation of this case, the said Sarwar accused (P.W.) in his statement before the Investigation Officer did not utter a word against the appellant, hence the allegations are totally false and baseless. The statement given by Sarwar accused (P.W.) involving the appellant was made before a "person in authority" and that too was in consequence of promise made to him by Bashir Anjum, FIO, the Investigating Officer of Case No,50/92 and other officer of PNCB. As such even that statement is inadmissible in evidence under the provision of Articles 37 and 38 of Qanun- e-Shahadat and cannot be relied upon. Besides the statement of accused Sarwar was recorded by Mr. Arshad Hussain, Director (P.W.) on the back of the appellant and no opportunity of cross- examination was given to him nor any copy of it was provided to the appellant. The respondent No, 2 has not given any opportunity of hearing before awarding the aforesaid major penalty which was essential in the interest of justice. The order dated 31-1-1994 of respondent No, 1 rejecting appellant's departmental appeal is not a speaking order as no reasons were given therein, nor the same was communicated to the appellant which violates the mandatory provisions of Rule 6 of Civil Servants (Appeal) Rules, 1977 and thereby vitiates the impugned orders. In the last the learned counsel argued that the appellant was falsely involved in the departmental inquiry under reference and that merely based on a retracted statement of the accused Sarwar (P.W.), which was made during the preliminary inquiry. As a result the appellant was convicted illegally and was awarded major penalty of reversion in rank.
4. In rebuttal the respondents had filed their written objections in which the allegations levelled against them by the appellant have been vehemently denied and stated that the appellant was given personal hearing by the authorised officer and also personal hearing by the appellate authority and appeal was rejected by the appellate authority after due consideration. The departmental decision is not harsh, in fact is commensurate with the partial charges proved against the appellant. The sale of 350 grams heroin by the appellant and Amjad Pervez Butt, FIO to accused Sarwar alias Sarwary for Rs,14,000 was not only the sole basis of departmental inquiry against the appellant but there were also other allegations which led to the departmental inquiry against the appellant. The punishment awarded to the appellant is based on the quantification of allegations which have been proved against him. The allegations Nos. 4, 5, 6 and 9 levelled against the appellant are not based on the statement of Sarwar alias Sarwary (accused, P.W.) but all prosecution witnesses have corroborated the statement of the accused P.W. Sarwar. The visit of appellant during his medical leave to JNTF, Rawalpindi and Police Station Civil Lines at mid-night after arrest of Ghulam Sarwar proved his close association with drug dealer which is evident from the appellant's statement dated 28-1-1992. The association of appellant being custodian of law with drug dealer doubts his integrity. The appellant in spite of knowing the activities of the notorious drug dealer did not take any action against him due to his personal connection which tentamounts to misconduct on the part of the appellant. The accused Sarwar later on in his statement before the Inquiry Officer had stated that he was patronised by PNCB Officers, appellant and Amjad Pervaz Butt. The appellant has mis-stated his position. He remained under suspension during the period from 25-3-1993 to 21-4-1993 in connection' with non-compliance of his posting order for Gilgit. He was re-instated in service with effect from 2-4-1993 vide PNCB's Order No:7(64)PNCB/I/92(B), dated 22-4-1993. The appellant did not file any appeal against the said order with the departmental authorities. The allegation was established against the appellant that he was reluctant to raid certain drug dealers even when he was provided assistance of Police Commandos, instead of arresting the drug dealers for the arrest of whom the Police Commandos were provided to him by the Regional Director, PNCB, Islamabad, the appellant utilised them somewhere else and did not raid/arrest the required drug dealers. The departmental action taken against him is justified and commensurate with the partial charges proved against him. In the prayer they stated that the appellant being custodian of law himself involved in the drug business and patronised the drug dealer, cast doubts on his integrity. The appellant had also shown reluctance in raiding certain drug dealers even he was provided assistance of Police Commandos by the Regional Director, PNCB, Islamabad which proved his inefficiency. It is prayed that the honourable Tribunal may reject his appeal with cost.
5. Now after perusing the objections and counter-objections of the parties, though the respondents have covered in rebuttal all the points, even then we feel necessary to discuss the same as under:- -
(i) The points raised by the learned counsel for the appellant that the appellant was awarded a major penalty of reduction in rank without adopting the legaI procedure.
' In this connection the record shows that charge-sheet alongwith statement of allegations was given to the appellant on 13-4-1992. The appellant submitted his written statement/reply on 21-1- 1993, denying the charges/ allegations. The Authorised-Officer finding reply of the appellant unsatisfactory, appointed Mr. Fazal Habib, Assistant Director as Enquiry Officer. The Enquiry Officer after recording the evidence produced by the both sides and particularly the appellant was given full opportunity to cross the P.Ws. And he crossed all the P.Ws. The Enquiry Officer held the appellant guilty of charges Nos.1 to 4, 7, 8 and 10 vide inquiry report dated 22-12-1992. The conclusion of finding of the Enquiry Officer is as under:-- "There are sufficient grounds and evidence which have established the acts of misconduct and inefficiency on the part of Mr. Muhammad Sharif Toor, Inspector (under suspension), while the charge of corruption is not proved."
' After this the appellant was served with a show-cause notice dated 11-1-1993 by the Authorised Officer as to why a major penalty of dismissal from service might not be awarded to him (appellant). The appellant replied the show-cause notice and the order dated 6-5-1993 was passed by the Chairman, PNCB in which the appellant was awarded major penalty of reduction in 'Rank from the post of Inspector (Grade-14) to the post of FIO (Grade-11). Thus the appellant was given full opportunity to produce his D.Ws. And was personally heard by Authorised Officer (Director). Both the Enquiry Officer and Competent Authority found the appellant guilty of charges of misconduct and inefficiency and awarded major penalty of reduction in rank' under the Government Servants (E&D) Rules, 1973.
' In the light of the above adopted procedure we are unable to understand that procedure laid down under Rule 6 of Government Servants (E&D) Rules, 1973 had not been adopted.
(ii) According to record, the inquiry officer had recorded statements of about 23 witnesses all of them have involved the appellant. The appellant was given chance to lead the defence and he did so. The appellant was also given chance/opportunity to cross examine all the witnesses. Therefore, the question of not giving the opportunity to the appellant does not arise.
(iii) A case F.I.R. No,50/92 dated 22-2-1992 of stolen heroin about 350 grams was recovered from accused Sarwar alias Sarwary. During investigation the accused Sarwar admitted that the stolen heroin 350 grams was given to him by one Amjad Pervaiz Butt, FIO and appellant, in Rs,14,000. The accused Sarwar, according to record, is a "Mukhbar" and informer of the appellant and he had stated in his statement before the Enquiry Officer that he was "Mukhbar" and informer of the appellant and got arrested Zafar and Pervaiz for possession of 10 grams heroin -and 100 grams heroin, respectively. He also informed the Enquiry Officer that he had remained with the appellant every time and seen the recovery of heroin and weighing of the same. This shows that the accused Sarwar had a close connection with the appellant, as stated above.
(iv) According to statement of accused Sarwar the appellant had come to him when he was in lock-up in connection with F.I.R. 50/92 dated 22-1-1992 and threatened him that if he had given any statement against him he will be responsible for dire consequences. The appellant in his reply dated 21-1-1993 to the show-cause notice at page 6, had admitted that he met the accused Sarwar at Police Station Civil Lines. After this the accused Sarwar made changes in his statement so may times as it is natural for the accused to escape from the liability of being punished and due to the threat of the appellant. The appellant in his statement in connection with show-cause notice had also stated that he remained on leave from 27-12-1991 to 31-12-1991 and from 4-1-1992 to 11-8- 1992 on medical ground. During this leave the alleged occurrence had been occurred and he met with accused Sarwar in Civil Lines Police Station on 5-7-1992. On the same date the statement of the accused Sarwar was recorded by the Enquiry Officer in which he had given the statement in favour of the appellant which is outcome of the meeting of the appellant with the accused Sarwar and threatening him of the dire consequences. This shows close intimacy of the appellant with a notorious smuggler of narcotics and runner of prostitution den etc.
(v) Record shows that the accused Sarwar was asked to record his statement under section 164, Cr.P.C. But he refused to do so as he was tutored by the appellant not to give 164, Cr.P.C. As he has intimacy with the accused, therefore, the requirement of sections 37 and 38 of Evidence Act has not been completed. In the circumstances, he was not forced to record his statement forcibly as alleged by the appellant that he was forced to give the statement against him.
(vi) According to statement given by the appellant to the Enquiry Officer in which he has stated that he had moved an application for transfer of the Enquiry Officer, but the same application is not available on the record nor the appellant had produced the same. Therefore, the moving of an application is a matter of afterthought.
(vii) The allegation of the appellant that the statement of accused Sarwar was recorded by Arshad Hussain, Director (P.W.) on the back of the appellant and no opportunity to cross-examine was given to him, nor any copy was provided to the appellant.
' In this connection no such statement recorded by Arshad Hussain, Director, is available on the record. Therefore, the question of giving the opportunity to cross-examination by the appellant does not arise.
(viii) The appellant had requested the Narcotics Authorities to provide Police Commandos as he was reluctant to raid certain drug dealers. He was provided assistance of Police Commandos, instead of arresting drug dealers, for the arrest of whom the Police Commandos were provided by the Regional Director, PNCB, the appellant utilised the same somewhere else and did not raid/arrest the drug dealers, reasons best known to him. It also involves the appellant in dealing with the drug smugglers. The appellant being custodian of law himself involved in the drug business and patronised the drug dealers cast doubts on his integrity.
6. In view of the above circumstances, we are unable to accept the appeal of the appellant alongwith prayer. It is hereby rejected. No order for costs. Parties be informed.