1. ' PIR ABDUL HAQUE JAN SIRHINDI (MEMBER).---The appellant Ashraf Ali was a Police Head Constable and In charge Police Post Mahi Makool (P.S. Kambar) District Larkana. He was firstly proceeded against under Sindh Police (E&D) Rules. 1988 by issuing charge-sheet on 31-8-1985 along with summary of allegations on account of case Crime No,39/84 under section 302/304/305/307, P.P.C.
2. At Bakrani Police Station, which was registered on account of murder of Gul Hassan Jalbani against A.S.I. Allah Ditto and others. The appellant replied the said charge-sheet on 15-9-1985 and refuted all the charges against him. Later on S.D.P.O. Was appointed as Enquiry Officer whose recommendations are reproduced as:-- "That departmental proceedings is pending since 23-7-1984 and police personnel have suffered lot and have been dragged unnecessarily. Under the above circumstances I am of view that the departmental proceedings may be closed till decision of the criminal cases."
3. ' Superintendent of Police, Larkana on 2-8-1988 issued first show-cause notice against the appellant which was served on him on 2-5-1989 while in judicial custody in case Crime No, 66 of 1989 of P.S. Taluka Larkana. The contents of show-cause notice are produced as under:-- "You HC/392 Ashraf All while posted as Incharge at PP Mahi Makool (P.S. Kambar) were involved in a murder case F.I.R. No,99/88 under section 302/325/344/348/331 of Kambar P.S. Registered on 24-6- 1988 and since the registration of this case, you remained large. Your previous record shows that you were also sent up in a murder case vide F.I.R. No, 39/84 under section 302/307/325/34, P.P.C. Of Bakrani P.S. And the case is pending in the Court of law. This shows that you have proved yourself hardened criminal than a Police Officer.
4. ' You are directed to submit your reply within 7 days of the receipt of this notice as to why one or more punishments as mentioned in these rules should not be imposed upon you as pet above rules.
5. ' In case your explanation is not received within stipulated period, it shall be presumed that you have nothing to say and ex parte action will be taken.
6. ' Charge-sheet already issued under this Office No, SSC/8021, dated 27-6-1988 on the above allegations is hereby withdrawn.
7. (Sd.)
8. Superintendent of Police , Larkana."
9. ' The appellant submitted his detailed reply to the above show-cause notice denied and refuted the aforesaid allegations therein. The S.S.P., Larkana again issued second show-cause notice against the appellant under Rule 2(ii)(viii) of the Sindh Police (E&D) Rules, 1988 on 22-8-1989 which is reproduced as under:-- "You while posted at Police Lines, Larkana were involved is a murder case F.I.R. No, 66 of 1989 under sections 302, 148, 149, 34, P.P.C. And 13 D.A.O. Taluka P.S. In the past you were also involved in two murder cases vide case F.I.R. No, 39 of 1984 under sections 302, 307. 325, 34, P.P.C. Of Bakrani P.S. And F.I.R. No,99 of 1988 under sections 302, 325, 344, 348, 331 of Kambar P.S. For which you have already been issued charge-sheet and show-cause notice respectively. This shows that you have proved yourself a hardened criminal than a Police Officer.
10. ' By reasons of above you have rendered yourself liable for disciplinary action under the above rules.
11. ' You are directed to submit your reply within 7 days of the case of this notice as to why one or more punishments as mentioned in these rules should not Le imposed upon you as per above Rules.
12. ' In case your explanation is not received within the stipulated period, it shall be persumed that you have nothing to say and ex parte action will be taken.
13. (Sd)
14. Superintendent of Police; Larkana."
15. ' In reply to the allegations of show-cause notice the appellant on 3-6-1989 denied the allegations contained therein and prayed that since the abovementioned criminal cases are still pending before Humble Sessions Court. Larkana, hence show-cause notice issued against him may kindly be vacated and tiled in the interest of justice. The Superintendent of Police, Larkana, who was obviously not satisfied with appellant's reply passed an order dated 4-7-t989, dismissing him from service. The appellant challenged the order of his dismissal in departmental appeal filed before the Deputy Inspector-General of Police, Larkana, who after lapse of much time at last on 12-12-1994 rejected the appeal of the appellant by passing the order which is briefly reproduced as under:-- "The appeal merits no consideration till the judicial verdict. The appellant is involved in number of criminal cases which are still pending trial in Court. His appeal is rejected and papers filed."
16. ' After rejection of departmental appeal as mentioned above the appellant filed the present appeal before this Tribunal on 11-1-1995.
17. ' We heard Mr. Abdul Sattar Mughal on behalf of the appellant and Mr. Zawwar Hussain Shah. A.A.- G. For official respondents. We also went through the relevant documents available in the record.
18. ' The appellant's learned counsel argued that the impugned orders passed by S.S.P. And D.I.-G.P., Larkana against the appellant on account of involvement of the appellant in criminal cases.
19. Involvement in criminal cases during police service does not fall within the ambit on definition of misconduct as provided under Sindh Police (Efficiency and Discipline) Rules, 1988. As such the orders impugned are nullity in law. That the impugned orders have been passed in spite of the recommendations of the Enquiry Officer that the departmental proceedings may be closed till decision of criminal cases by the Court of law, as such impugned orders are against the spirit of law, liable to be set aside, that mere alleged involvement of appellant in criminal cases which are yet pending in the Court of law and not decided so it is against the spirit of law that appellant be awarded major punishment of dismissal for police service under Sindh Police (E&D) Rules, 1988. So learned counsel for appellant prayed that appeal of the appellant be accepted in the interest of justice.
20. ' The learned counsel for official respondents Mr. Zawwar Hussain Shah, A.A.-G. Also conceded with the plea of the learned counsel of appellant that during pendency of criminal cases the appellant cannot be awarded major punishment. Such as dismissal under Sindh Police (E&D) Rules, 1988 is not justified.
21. ' It is an admitted position that a detailed enquiry envisaged by the Sindh Police (Efficiency and Discipline) Rules, 1988 was not held. Instead the show-cause notices reproduced hereinabove were served on the appellant. On perusal of the appellant's reply to both show-cause notices it would appear that he did not accept any of the allegations made against him in the show-cause notices.
22. As regards the criminal cases in which it is alleged that appellant is involved has neither been decided, proved, nor he has been convicted in any such case. At this stage the case reference may be made to sub-rule (4) of rule 6 of the said rules. It reads as under:-- "(4) On receipt of the findings of the Enquiry Officer or where no such officer is appointed on the receipt of the explanation of the accused, if any the authority shall determine whether the charge has been proved and in case the charge has been pr6ved, the Authority may award one or more punishment."
23. It is clear that in the instant case on the receipt of appellant's explanation, the Authority had to first determine of the charges made against the appellant were proved and if it was so the authority would proceed to award one or more punishment to the appellant. In this case since criminal cases have not yet been proved so at this stage appellant may not be held accused in the eyes of law. Consequently the question of awarding major punishment to the appellant would not arise.
24. Therefore, the impugned order by which the appellant was dismissed from the service was not legally sustainable.
25. ' It is common ground that the only allegation against the appellant as mentioned in two show- cause notices dated 2-8-1988 and 22-5-1989 is that the appellant is involved in three criminal cases. It is further admitted that appellant has been acquitted in one of the said cases and acquittal judgment has also been produced and is available in case file.
26. ' In view of the above discussion we accepted the appeal of the appellant with no order as to costs and the impugned order of dismissal was set aside vide short order dated 15-6-1995.
27. ' Given under our hands and the seal of this Tribunal on this 15th day of June, 1995 at Karachi.