1. ABDUL MAJEED KHANZADA (CHAIRMAN).---The appellant through this appeal has challenged the impugned order, bearing No,SOV.(S&GAD) IX-20 of 1987, dated 21-4-1996, conveyed by the then Chief Secretary, Sindh where under the competent authority has imposed the penalty of reduction to lower post of Mukhtiarkar (B-16) for a period of two years, with immediate effect.
2. The appellant against that impugned order filed 'review petition' before the then Chief Minister, Sindh on 16-5-1996. After waiting for statutory period, he filed this service appeal.
3. The counsel for the appellant stated that he was recruited directly, as Mukhtiarkar (B-16), through Sindh Public Service Commission , on 25-5-1978. He was promoted as Assistant Commissioner (B- 17) on 17-6-1987, (after, 9 years). According to him, 'except the penalty sought to be set aside, the appellant's service record throughout remained clear'.
4. Chronologically, the 1st Additional Sessions Judge, South Karachi on 15-3-1992 issued a show cause notice to the appellant then posted as Additional City Magistrate Court No, VI, West Karachi, why proceedings should not be initiated against him under section 197, P.P.C. (issuing a false certificate) with reference to the heirship certificate, dated 20-2-1992 issued by the appellant in respect of one Muhammad Salim, who expired at Civil Hospital Karachi in a murder attack on 18-11-1991 without mention and commission of certain heirs, who resided at Multan). The appellant was also directed to appear before 1st A.D.J., South, Karachi. According to the appellant, he submitted his written reply and the show-cause notice was filed, after his personal appearance.
5. On 31-12-1992, the appellant was charge-sheeted by the Authorised Officer for the charges mentioned therein. Additional Secretary (Coordination) was appointed as Inquiry Officer, who submitted his Inquiry Report after 2-1/2 years stating therein that charge No,1 was fully proved and charge No,2 was partially, proved against the appellant. After completion of prescribed formalities, the competent Authority reverted him back/reduced in rank, from Assistant Commissioner (B-17) to Mukhtiarkar (B-16).
6. The main arguments of the counsel for the appellant are basically of technical nature such as Inquiry against him was not held in accordance with various provisions of Sindh Civil Servants (Efficiency & Discipline) Rule, 1974 such as no prosecution witness was examined in his presence, no evidence against him was adduced in his presence, the inquiry was not conducted on day-to- day basis etc and the Inquiry Officer's report is based on mere conjectures, surmises etc. ignoring the 'good faith' of the appellant. Otherwise according to him, there was no restriction on issuing heir ship certificate by a Magistrate 1st Class. It was issued on the application of one of the legal heirs, duly supported by affidavit submitted through an advocate practicing at Karachi. None of the documents, according to him, gave even an iota of doubt with regard to the genuineness of the request.
7. The Senior Member, Sindh Service Tribunal at this juncture inquired, whether the appellant was aware of the standing order/practice that at district headquarters only Assistant Commissioner (Revenue) issues heir ship certificate and that, too, only to the heirs of deceased Government servants/employees of Government administered/controlled organization, which is not valid for transfer of immovable properties for which, Succession Certificate from the competent civil Court is required. The counsel for the appellant, after verification from the appellant, who was present in the Court, replied in 'Negative'.
8. Mr. S.M. Sayedain Zaidi, A.A.G. Sindh maintained that the impugned order was issued after complying with the prescribed legal procedure and hence, appeal, according to him, was liable to be dismissed. He was asked to produce the personal file of the appellant along with the concerned heir ship certificate which has been produced before us and has been perused carefully.
9. According to record, the show cause notice, dated 11-3-1992 was issued by the 1st Additional Sessions Judge, South Karachi, wherein it was stated that during Court proceedings in Sessions Case No,401 of 1991 under section 302/324/147, P.P.C., F.I.R. No,227 of 1991 (P.S. Kalri Distt. South, Karachi), it transpired that other legal heirs such as mother of the deceased and others were also alive which implied that appellant concealed the same while issuing the legal heirship certificate. It was not understood as to how he, being ACM., had issued the legal heirship certificate particularly when the parties were also reported to have resided at Multan. This showed that he had deliberately and intentionally issued incorrect/false certificate and that, too, in a murder case. He was directed to show cause why proceedings should not be initiated against him for the offence punishable under section 197, P.P.C. 1st Addl Sessions Judge South Karachi brought it to the notice of the Chief Secretary Sindh vide No,lst ADI/S/163 of 1992, dated 30-9-1992, for necessary action as may be deemed fit and proper, which established that he was not satisfied with the explanation of the appellant though criminal proceedings under section 197, P.P.C. did not materialize.
10. In fact, there are two heir ship certificate in the same matter-one dated 29-2-1992 issued by the appellant as A.C.M. Court No,VI West Karachi and other, dated 10-3-1992 by the Magistrate 1st Class/A.C.M. Court No,1, Karachi South. The heir ship certificate issued by the appellant only shows 5 brothers as legal heirs whereas in the other, 9 heirs are shown. Heir ship certificate issued by the A.C.M.1 Karachi (South) - 5 brothers, 3 sisters and one mother are shown as legal heirs. Show cause of A.D.J. South also mentioned that the appellant has not mentioned the name of the deceased's mother and some others. Hence, prima facie the Heir ship Certificate issued by the appellant was incorrect to say the least. The application for heir ship certificate was moved on 28-2-1992 by one Muhammad Ramzan S/o Hayat Muhammad stating himself to be the cousin of the deceased, Muhammad Saleem S/o Muhammad Latif yet in the heir ship certificate issued by the appellant one Muhammad Ramzan is shown as brother/legal heir. There is a joint affidavit of Messrs Muhammad Hanif S/o Haji Rehmanullah and Muhammad Hanif S/o Allah Ditta before an Oath Commissioner. One Muhammad Sabir, Advocate had identified the deponents. Actually, the appellant should have recorded the statement of the witnesses himself, ascertained their veracity and should have issued the certificate only if he was satisfied about the genuineness of the facts.
11. He, however, did not exercise due care and vigilance and hence, it is obvious that the heirship certificate issued was with mala fide intention and not a bona fide act. While going through the personal file of the appellant, it was noted that the appellant had a checkered record. In summary bearing No,SOV (S&GAD) IX-20 of 1987, dated 25-2-1996, it was recorded that the appellant (then under suspension) was facing three disciplinary action cases viz: (i)Illegal attestation of such blank documents on stamp papers, which could be misused for fraud and forgery purposes. dropped on the report of A.I.G. Criminalestic Division that 'the signatures on the blank affidavit of Mr. Gulfam Mohiuddin have not tallied with the documents signed which alonge suffices to negate any claim incriminating Gulfam Mohiuddin with the wrong doers'. The report was received through D.C. (South) Commissioner, Karachi. It is pertinent to note here that the opinion of a handwriting expert is not a conclusive evidence and shows that the case was not properly investigated with corroborative evidence.)
12. (ii)Involvement in case, F.I.R. No,16 of 1987 of A.C.E. Larkana for attestation of wrong entries in Revenue Record. This case also fizzled out as prosecution could not produce any P.W.S. (iii)Incorrect issuance of a heirship certificate, for which major penalty was awarded.
13. A.C. (Rev) office of the Commissioner, Karachi has sent a copy of office order No,DCE/PA/127/97, of D.C. East, showing that only Asset. Commissioner (R) was authorized to issue heir ship certificate under the treasury rules. Similar orders exist in other Districts of Karachi as verbally confirmed to Sr.
14. Member Sindh Service Tribunal. Even otherwise, an A.C.M. (Addl. City Magistrate) dealing with criminal cases/administrative law and order duties is not authorized to issue such heir ship certificate being outside the prescribed duties of his office/posting '& jurisdiction. All such Magistrates, though Assistant Commissioners in rank, cannot issue such certificates of heir ships by these ACMS/Traffic Magistrate/K.E.S.C./or Railway Magistrate). We are of the considered view that a judicial office, who does not know what is within and what is beyond his jurisdiction is unfit to hold that office. The appellant was promoted as Assistant Commissioner in 1987 and at the time of such promotion all Assistant Commissioners are imparted Treasury Training--part of in service training.
15. Having worked till 1992 i,e, for 5 years as Assistant Commissioner, he should have been well aware that an heirship certificate is issued under treasury rules mainly to enable the heirs of a deceased Government servant/pensioner or employee of Government organization to draw their service dues. Ignorance of law is no excuse. It is not issued for any other purpose. Heirship certificate, if issued carelessly and without mention of prescribed purposes, could be easily misused for transfer of immovable property. The act of the appellant does not come within the definition of a bona fide act because no adequate safe guards were taken to forestall its misuse. The grant of an heirship certificate on the application of 'a cousin' instead of a legal heir is an additional proof of his mala fides. The murder of deceased Muhammad Aslam took place in Kalri Police Station within South Karachi and the family was ordinarily resident of Multan while appellant was A.C.M. VI Karachi West.
16. Thus, by no stretch of imagination, the matter fell within his territorial jurisdiction. We regret to observe that those dealing with this case had been "too kind" to the appellant for reasons best known to them. The technical objections about disciplinary inquiry are immaterial because the appellant has never denied the issuance of a wrong heir ship certificate in any proceedings including this service appeal. What he has been taking is about his self-acclaimed 'bona fide' action which in view of our above discussions was undoubtedly a malaise action, as he acted without jurisdiction, without proper authority and without due vigilance and care that could facilitate misappropriation of the share of omitted legal heirs. It is immaterial whether that offence actually did take place or not as discussed at length in P.P.C. in chapter offences by Government/public servants.
17. We, therefore, dismiss this appeal with no order as to cost.
18. Given under our hands and the seal of this Tribunal this 6th day of April, 1998 at Karachi.