1. ' WAJIHUDDIN AHMED, J.---This civil appeal arises from an order of the N.-W.F.P. Service Tribunal, based at Peshawar, in Appeal No,367 of 1993, whereby the appellant's service appeal was dismissed.
2. ' The facts, in brief, consist of the appellant having been the investigating officer in the murder case of Mian Abdur Rashid, his wife Mst. Hamdam Sultana, his daughter Sabina alias Spogmai and his servant Sahibzada. Mst. Hamdam Sultana was a sister of the Lt.-Genaal Fazl-e-Haq, a former Governor of the N.-W.F.P., and the murders, apparently, significantly stirred up public concern. The sons of a maternal uncle of such lady, namely, Fazal Azam, Mir Azam, Muhammad Azam and Muhammad Alam were tried under section 302/120-B/449/404/34, P.P.C. Before the Special. Court for Speedy Trials, Peshawar. There was no direct or ocular evidence of the crime. The prosecution case was that accused Fazal Azam was in love with Sabina, aforesaid, was proved to be writing love letters to her, Mian Abdur Rashid and his wife had declined to give their daughter in marriage to him and, having, thus, been antagonized, conspired to commit the murders in retaliation. The trial Court acquitted the accused for insufficiency of evidence. The role of the appellant, as the Investigating Officer, however, also figured in the process and the trial Court found that there was also some amorous correspondence addressed, attributed to Syed Kamal Shah, who was the then D.I.-G., Peshawar Range, which, the appellant had suppressed and which made the case against Fazal Azam accused equivocal. Correspondingly, the then D.I.-G., Peshawar Range, filed a Constitutional petition in the High Court seeking to clear his name, which, apparently, was supported by the appellant, maintaining that there was no love letter attributable to the D.I.-G., as addressed to Sabina, aforesaid. In an acquittal appeal taken by the State against the accused before the Supreme Appellate Court, as it then subsisted, the remarks and observations of the trial Court, pertaining to D.I.-G. Syed Kamal Shah were expunged, on the latter's application. However, on the administrative plane, the appellant was charge-sheeted and such charges in the statement of allegations are as under:-- "(1) Wrong preparation of memo. Containing false contents for sealing a parcel. As a matter of fact he was not supposed to prepare a fresh recovery memo. He wrongly described a letter actually written by Fazal Azam accused to the deceased Mst. Sabina as love letter of Syed Kamal Shah, D.1.-0. Of Police, to the deceased against the facts on record.
(2) Wrong description in case diary No, 24, dated 1-6-1991 issued by the said Inspector in his own handwriting in case F.I.R. No, 281, dated 5-5-1991 under section 302/404/449/120-B/34, P.P.C., Police Station University Town.
(3) False statement before the Speedy Trial Court in case mentioned above and causing damage to the reputation of a very Senior Police Officer of the rank of D.I.-G. For having no fault on his part."
3. ' Correspondingly, the appellant was suspended from service vide an order dated 10-5-1993. The enquiry was conducted per order dated 25-5-1993 and a report was submitted. The appellant was served with a final show-cause notice on 26-7-1993, to which he replied on 31-7-1993. On 10-8-1993, the appellant was compulsorily retired from service. He preferred a departmental appeal, such being dismissed on 28-11-1993. Appeal No, 367 of 1993, being taken before the Service Tribunal, N.- W.F.P. On 14-12-1993, was itself dismissed on 31-8-1994. In Civil Petition No,465 of 1994, leave was granted by this Court on 21-2-1995 to consider, inter alia, whether the evidence on the record was misread and at any event whether in view of A.U. Musarrat v. Government of West Pakistan, PLD 1977 SC 21, the penalty imposed, was not excessive.
4. ' In this consequent civil appeal, a number of contentions have been raised by Mr. Muhammad Ibrahim Satti, the principal of which are that the appellant was denied a personal right of hearing and besides the appellant neither had any malice to drag D.I.-G. Syed Kamal Shah in the prosecution nor did he in fact do so.
5. ' Examining the proceedings, we do find that the manner and mode in which the appellant was departmentally proceeded with has left much to be desired. There are elements in the proceedings which suggest that adequate hearing was not accorded to the appellant and the order of his compulsory retirement, dated 10-$-1993, passed by the incumbent D.I.-G., Peshawar Range, apparently successor of D.I.-G. Syed Kamal Shah came to transpire in the face of a Notification dated 9-8-1993, whereby the then incumbent was transferred "with immediate effect as Commandant, F.R.P., N.-W.F.P." with "no joining time" having been allowed. Serious allegations were made by the appellant in his departmental appeal, out of which, what he brought out in para. 6 of the grounds in the memo., is significant and reproduced below:--
46. That the outgoing D.I.-G. Malik Navid Khan inflicted the punishment when he was already under transfer and under the rules could not have taken such major decision at such juncture. He in fact invited the appellant and asked him to patch up his matter with Syed Kamal Shah, D.I.-G. And appellant submitted that he has nothing personal with Syed Kamal Shah and nor has any dispute with him and nor has done anything beyond the scope of law."
6. ' Nonetheless, without duly examining the appellant's contentions and without so much as making a reference to ground 6, above, the Inspector-General of Police, N.-W.F.P. As the appellate authority, surely rejected the appeal by recording the pithy order as appears hereunder:-- "In view of the above it is evident that incorrect sealing memo: incorrect facts contained in ' Zemni' and his misstatement in Court (for which he blames the Court) was based on either his mala fide intention or serious negligence. He involved senior officer's name in the case without having any cogent reason by way of oral or documentary evidence and has caused aspersions on the integrity of the Court also for misreporting his statement.
7. ' I, therefore, see no reason to accept his appeal. The appeal is rejected."
8. None of the foregoing aspects were examined by the Tribunal and for such reason alone the findings of the Tribunal are not sustainable. It is now well-settled that a departmental appeal is not a mere formality. Such equally applies to an appeal under Rule 11 of the N.-W.F.P. Police Rules, 1975.
9. It is understandable that where the order of the appellate authority is affirmative of the findings in an inquiry such may be brief. Still matters of substance need to be addressed. Justice should not only be done but must appear to have been done. In the peculiar circumstances of this case, where a comparatively small officer was pitched against the ostensible ire of a superior, placed way up higher than him, it was obligatory upon the departmental functionaries to have exercised their powers in a manifestly just, reasonable and impartial manner. The conditions do not appear to have been satisfied. Our own experience shows that such departmental inquiries usually consume a good. Deal of time, something which remains a cause of concern. Yet, when an enquiry, in which a high officer is concerned, one way or the other, and in which serious matters, such as interpretation of several orders of Courts, are posed, is shown speeded up and results in conclusion, including the appeal within months, the development cannot go un-noticed.
10. ' The departmental officers thus, in the overall circumstances, do not appear to have acted in a transparent and non-controversial manner, imparting a manifest infirmity to the proceedings, which cannot stand the test of judicial scrutiny.
11. ' Coming to the merits of the controversy itself, the appellant has throughout squarely stated that it was a slip on his part to have signed the disputed memo. In which one of the documents was (erroneously) described as under:-- {{URDU TEXT}} ' The trial Court was of the view that there was another such letter marked as Q/R, which had been suppressed. The appellant does not seem to have been pointedly questioned as to such supposedly suppressed letter but has since maintained that there was nothing apart from document Q/K above. Examining the documents ourselves, we have found that such letter is admitted to have been in the handwriting of accused Fazal Azam, though the accused explained it saying that the same was forcibly got written from himd by the police. The letter, as a fact, does mention D.1.-G. Syed Kamal Shah and in words which, to say the least, are not complimentary of the D.I.-G.
12. ' Then, there is the question that the appellant made the following statement before the trial Court, where, according to the department he came to implicate the D.I.-G. In these words:-- "It is correct that a letter was recovered from the room of Mst. Sabina Rashid alias Spogmai which contained love message froth Kamal Shah along with other chits and were taken into possession vide recovery memo. Ext. PK/1."
13. ' The appellant, as already seen, had supported D.I.-G Syed Kamal Shah in his Constitutional petition, whereby he sought to clear his name. What is more, the appellant went to the extent of applying to the Supreme Appellate Court for rectifying the record so as to read the word "correct", in the deposition, reproduced hereinabove, as "incorrect", a request which was turned down by the learned Judges of the Supreme Appellate Court, since they declined to go into the matter, as it did not pertain to the guilt of the accused.
14. ' Much the same is true of the (wrong) description in diary No, 24 of 1-6-1991 as of the memo from which the foregoing vernacular portion has been reproduced.
15. ' All and all, it does not seem that the appellant had any malice against D.I.-G. Syed Kamal Shah and none seems to have been established in the departmental or other proceedings. On the contrary, the appellant was found responsible by the learned Presiding Judge of the trial Court as having shielded such D.I.-G. At any event, that is a past and a closed chapter because the observations of the trial Judge have since been expunged at the behest of Syed Kamal Shah by the Supreme Appellate Court.
16. ' It is also equally incorrect that the four accused were let off on account of any lack of efficiency, competence or due pursuit at the hands of the appellant. It is unfortunate that the Service Tribunal did not await the verdict of the Supreme Appellate Court in the matter and proceeded to dismiss the appellant's service appeal. As it transpired, the Appellate Court dismissed the acquittal appeal on the ground that there was nothing against the four accused except a mere suspicion and a person could not be convicted on mere suspicion.
17. ' In addition to what has been observed above, it remains to be said that even if the appellant was found guilty of a slip or two, the way he has been proceeded against and punished in an extreme measure cannot commend itself to a neutral and impartial mind.
18. ' Considering all aspects of the matter, it seems to us that the departmental proceedings involved material irregularities going to the root of the matter and the decision of the Service Tribunal, besides being premature, not having awaited the verdict of the Supreme Appellate Court, and founded, as it was, on patent misapprehension of the evidence, the punishment visited on the appellant cannot be upheld. This appeal, therefore, is allowed. The appellant is reinstated in service with all back benefits, including due incidents of such service.