' ABDUL HAMID KHAN (MEMBER).----The appellant, Wali Muhammad Khetran while serving as Assistant Excise and Taxation Officer at Jhang was charged-sheeted as under:- "(1) That while posted as Assistant Excise and Taxation Officer, Jhang you submitted a self- made/bogus Raid Report bearing No, 364 forwarded by the Excise and Taxation Officer, Jhang, vide his Office Memo No, 3967/EX, dated 2-6-1990 to the Director, Excise and Taxation, Faisalabad Division, Faisalabad, under- Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, against one Tahir Abbas son of Muhammad Siddique, caste Sheikh, Basti Ata-wali, Jhang Sadar, showing recovery of 45 Grams of Charas in a case F.I.R. No, 148, dated 14-4-1990 of Police Station Kotwali, Jhang. While, in fact you did not conduct any raid in the company of the staff mentioned in your raid as is evident from the original F.I.R. Registered in the Police Station Kotwali, Jhang.
(2) That in order to show your performance in the detection work of Excise crimes, you have had changed the original entries of the F.I.R. No, 148, dated 14-4-1990 of Police Station Kotwali, Jhang and after erasing/tempering with the original entries of the F.I.R. Entered your name as a member of the Raiding Party by omitting the name of Mr. Mulazim Hussain No, 546/FC of Police Department and made a photo copy of it. The same was submitted to the Excise and Taxation Department (E&TO, Jhang) alongwith your Raid Report No, 364, to show your performance in the detection of Excise crimes by making forged entries in the F.I.R. No, 148 of Police Station Kotwali, Jhang. Thus, you produced a made up document to the Department to be used as genuine and hence defrauded the Department.
(3) That you submitted another self-made/bogus raid report bearing No, 413 of F.I.R. No, 205, dated 12-5-1990 of Police Station Kotwali, forwarded by the Excise and Taxation Officer, Jhang, vide his Office Memo. No, 398/Ex, dated 2-6-1990 under Article 3/4 of Prohibition (Enforcement of Hadd)
Order, 1979, against one Muhammad Nawaz son of Muhammad Bakhsh, caste Kasab of Jhang City showing recovery of 45 grams of Char as. While in fact you did not conduct any raid or accompanied with the other Raiding Party of Police Department as is evident from the-original F.I.R.
No, 205, dated 12-5-1990 of Police Station Kotwali. Thus, you indulged in fabricating the bogus raid report.
(4) That you have had changed the original entries of F.I.R. No, 205, dated 12-5-1990 of Police Station Kotwali, Jhang and after erasing/tempering with by using some unfair means entered your name as a member of the Raiding Party by erasing the name of Mr. Abdul Majeed No, 1106 of Police Station Kotwali. After making the forged entry, you have planted a forged raid report with a photo copy of the made up F.I.R. No, 205 and submitted to the Excise and Taxation Officer, Jhang. By this way you produced a bogus/made up document to the Department to be used as genuine and hence defrauded the Department."
2. On the conclusion of the proceedings he was compulsorily retired from service vide order dated 26-11-1991 by respondent No, 3/Director General, Excise and Taxation, Punjab. His departmental appeal was also rejected by respondent No, 4/Secretary, Excise and Taxation vide order dated 5-8- 1992. These two orders have now been impugned by the appellant in the appeal before us.
3. The appellant contended that the impugned orders suffered from certain legal infirmities and factual in occurrence. His main contentions were firstly that the statement of the witness was not taken on oath and secondly that the impugned order suffered from jurisdictional error as respondent No, 4 had charge-sheeted the appellant in his capacity as Authority and had also given him personal hearing whereafter the former was promoted as Secretary and, therefore, should not have acted as appellate authority in the interest of justice as the appeal had arisen out of the same proceedings. The respondents have elected to give no response to these contentions and have thus conceded the same by keeping silence on these issues.
4. Rule 12 of the Efficiency and Discipline Rules, 1975 provides inter alia that: "(1) For the purpose of an enquiry under these rules the Inquiry Officer and the Inquiry Committee shall have the powers of a Civil Court trying a suit under the Code of Civil Procedure, 1908 (Act V of 1908) in respect of the following matters:
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(2) The proceedings under these rules shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Pakistan Penal Code (Act XLV of 1860)."
5. It follows that the proceedings conducted under the Efficiency and Discipline Rules are judicial proceedings, that the Inquiry Officer/Inquiry Committee conducting the enquiry constitutes a Civil Court and that the evidence given before the Inquiry Officer/Inquiry Committee has to be given on oath.
6. Under its Article 1 "the Qanun-e-Shahadat extends to all judicial proceedings in or before any Court or other authority exercising judicial or quasi-judicial powers of jurisdiction ". Under Article 2 of the Qanun-e-Shahadat "Court" includes "all Judges and Magistrates and all persons except arbitrators, legally authorised to take evidence".
7. The Oaths Act, 1873 provides that "oaths and affirmations shall be made by the following persons:
(a) all witnesses that is to say all persons who may lawfully be examined , or give or be required to give evidence by or before any Court or person having by law or consent of parties authority to examine such persons to receive evidence;
(b) (c) ...........................................................................
8. Although rule 12 of the Efficiency and Discipline Rules is specific and self-contained but reading the above provisions of the Efficiency and Discipline Rules, the Qanun-e-Shahadat and the Oaths Act together there remains no doubt in the mind of the reader that in the case of a witness whose evidence is to be recorded by an Inquiry Officer during the course of the departmental proceedings being conducted by him under the Efficiency and Discipline Rules, it has to be recorded on oath. At the same time, however, section 13 of the Oaths Act lays down that "no omission to take oath shall invalidate any proceeding or render inadmissible any evidence " It clearly implies that an omission to administer oath or affirmation to a deponent is merely an irregularity which is cured by section 13. "An omission to administer an oath even to an adult goes only to the credibility of the witness and not to his competency " and that an "omission to take oath does not affect the admissibility of the evidence". (1974 PCr.LJ 237).
9. In the case before us although the Inquiry Officer omitted to administer oath to the witness, yet his evidence cannot be treated as inadmissible although it has to be taken with a grain of salt as its credibility has been impaired by the aforesaid omission. Its reliability has become all the more questionable as the appellant has been punished on the testimony of a lone witness without any corroboration.
10. The respondents have not contested the appellant's claim that the impugned order suffered from jurisdictional error inasmuch as respondent No,4 had acted as Authority in this case and after receipt of the recommendations of the Authorised Officer had also given him personal hearing whereafter the former was promoted as Secretary and, therefore, should not have acted as appellate authority as the appeal had arisen out of the proceedings which had been pending before him previously as Authority. They have simply stated that "respondent No, 4 disposed of the departmental appeal on the basis of the material facts before him" which is an implied admission of the appellant's contention. In the case cited as 1973 PLC 308 (Lahore) (Haji Ghulam Mustafa v.
Secretary to Government of the Punjab, Agriculture Department), it was observed by Nasim Hasan Shah, J. Of the Lahore High Court, now Chief Justice of the Supreme Court of Pakistan, that "the law in this country is well-settled that where a person has expressed his opinion about a matter at some stage while dealing with it in one capacity, he is disqualified from hearing and taking part in the decision of the same matter in some other capacity". In Ghulam Rasul v. Crown (PLD 1951 FC 62) the then Federal Court of Pakistan had observed that ".... Nothing should be allowed to happen in a case which may give rise to a reasonable apprehension in the mind of an accused person that he would not or did not have fair trial. It is essential that justice must not only be done but must manifestly seem to be done". In yet another case reported as Mubarik All Bhatti v. Fayaz All Khan and others it was held that "even if there had been no such rule the hearing of an appeal by an Authority who has himself participated in the original' proceedings is contrary to the rules of natural justice. We had no doubt that the removal of the petitioner should be set aside on this ground". As was held in the aforesaid case of Haji Ghulam Mustafa the impugned order in the instant case too are thus "against law" and "without legal authority".
11. Another important aspect of this case is that while it is admitted on all sides that certain documents were forged, no effort whatsoever has been made prove their authorship and the appellant has been held responsible for the same without any credible proof. These documents were not even referred to the handwriting expert find whether the interpolation was made by the appellant. The respondents have argued that "since the appellant himself admitted his signatures on the said report submitted by him, therefore, the version of the appellant is not correct. They have conveniently ignored the simple fact that it was not the appellant's signatures which were to be compared but the interpolations made in the F.I.Rs, etc. The signatures have not been disowned by the appellant. As observed in the case reported as 1974 Cr. LI 39 in cases of forgery it is the duty of prosecution to produce the best available evidence in support of the allegation. Forgery is a question of fact and must be proved by evidence and not on surmises. In the case of Muhammad Hussain v. The State (1977 SCM R 109) in which the appellant had admitted his signatures on the receipts but had denied the alleged entrustment of monies the Hon'ble Court had held that despite his denial "no handwriting expert was examined, nor was this writing compared with any of his admitted writings. In the circumstances we are unable to agree with the Courts below that the entrustment has been established beyond any reasonable doubt.' It is based on pure surmise".
12. In these circumstances we do not consider that the charge has been established against the appellant beyond any reasonable doubt. We, therefore, find no reason to sustain the impugned orders. The appeal is accordingly accepted and the impugned orders are set aside. No costs.
' ANNO UNCED MEMBER-II CHAIRMAN MEMBER-I 28-12-1993
13. We have carefully glanced through the observations made by the learned Member-I in the preceding paragraphs. We do subscribe to the view taken by him that the credibility of the evidence produced before the Enquiry Officer in this case had been impaired as it was not recorded on oath, although it could not be treated as inadmissible, and that its reliability had become all the more questionable as the appellant had eventually been punished on the testimony of a lone witness without any corroboration. The learned Member has also rightly observed that while it had been admitted on all sides that certain documents had been forged, no effort whatsoever had been made to procure a tangible proof by referring the documents to the handwriting expert to confirm as to whether the appellant was really the author of interpolation alleged to have been made in the F.I.R. By him. In our opinion, the above flaws in conducting the enquiry proceedings by the Enquiry Officer call for the initiation of de novo enquiry proceedings including consultation with the handwriting expert and re-recording of evidence of the witness n oath against the appellant rather than straightaway acquitting him of the charge of forgery brought out against him. Moreover, the view that the appellate authority's order suffers from a serious legal lacuna as much as the Appellate Authority had remained associated with these proceedings as Authority during its earlier stages as well, lends support to the submissions made above that there was indeed a good case for initiating the enquiry proceedings afresh in the matter.
' In view of the above, we agree with the learned Member-I to the extent that the legal flaws/lacunae in the conduct of the enquiry proceedings in question at various stages have vitiated the legal validity of the impugned orders which are indeed fit to be set aside. However, the entire record produced before us fails to confirm that the appellant had been wrongly implicated in the instant enquiry proceedings. In fact, it remains to be proved, in an unequivocal manner, as to whether the appellant had indeed not been guilty of the charge of forgery/interpolation brought out against him. In view of the above, we allow the appeal, set aside the impugned orders, reinstate the appellant in service and direct the Authority/Authorised Officer to hold de novo enquiry proceedings in accordance with the Rules against the appellant on the charges already framed against him. The appeal is allowed and the case is remanded by majority view.