1. ABDUL MAJID KHANZADA (CHAIRMAN).---The brief facts as stated in the present appeal are that the appellant was recruited in Police Department in 1986. That while performing his duty at Police Station Nasirabad the appellant was arrested by the Law Enforcing Agency on 23-8-1992 and was confined to Army Cell for interrogation purpose. That on 17-11-1992 the custody of the appellant was handed over by the Law Enforcing Agency to Mr. Mumtaz Ali A.S.I. of Police Station Nasirabad. It is the case of the appellant that on 20-11-1992 the appellant was falsely implicated in criminal case by Veehar Police Station and booked under section 13-D Arms Ordinance and a K.K. and live rounds were foisted and was challenged in the Court of Special Judge under Suppression of Terrorist Activities Act,. Larkana, in special case No,218 of 1992. That during the proceeding, the S.S.P. Larkana initiated the departmental proceedings against the appellant and issued show-cause notice vide No,.25985, dated 7-12-1992 under Rule 6(3)(b)(i) of the Sindh Police (Efficiency & Discipline) Rules 1988 without waiting the verdict of trial Court. That the grounds shown in show-cause notice are as under:-- "It has been reported by S.H.O. Nasirabad Police Station vide his letter, No,1460, dated 24-11-1992 that you (appellant) have been challenged in Crime No,20 of 1990 under section 13-D. Arms Ordinance at Police Station Veehar and PR No,22 of 1992 under section 110, Cr.P.C. at Police Station Veehar. This shows your gross misconduct and dereliction of duty."
2. That the appellant was called upon through said show-cause notice dated 7-12-1992 to show cause within 7 days of the receipt and further states that in view of the allegations called for any one or more punishments as defined in rule 4 of the aforesaid rules. That the above cited show- cause notice was served on the appellant on 2-3-1993 through Jail authorities and the reply of the same was submitted by the appellant on 3-3-1993 through Jail authorities. He denied the allegations and demanded fair inquiry into the allegations, but the respondent No.2 failed to discharge his obligatory duty and did not conduct any inquiry, before awarding major punishment of dismissal from service on 6-11-1993. It is also the case of the appellant that the special Court under S.T.A. Act Larkana convicted the appellant on 27-6-1993 and sentenced him to suffer for four years and fine of Rs.5,000 or in default to suffer RI for one year more under section 13-D. Arms Ordinance. It is also the case of the appellant that respondent No.2 did not wait for the decision of appeal which was a legal right of the appellant. Respondent No.2 dismissed the appellant from service on 6-11-1993 from the date, i.e. 17th November, 1992 when he was arrested. That the respondent No.2 passed the order as under:- "P.C./Mashooque Ali of Larkana District while posted at Nasirabad Police Station was placed under suspension with effect from 26-11-1992 and was issued show-cause notice vide this office No.SSC of 25985, dated 7-12-1992 on the following allegations. It has been reported by S.H.O. Nasirabad Police Station vide his letter No.1460 dated 24-11-1992, that you have been challaned in Crime No.20 of 1990 under section 13-D. Arms Ordinance of Police Station Veehar and Cr. No.22 of 1992 under section 110, Cr.P.C. at Police Station Veehar.
3. That the appellant submitted his reply as stated above which was found unsatisfactory by the respondent No.2 as the appellant was challaned in two criminal cases; hence he was not to be retained in this disciplinary force. Respondent No.2 also relied on a letter of Inspector-General of Police Sindh Karachi No.9732/E.II, dated 29-5-1991 wherein the police officials involved in criminal cases should be dismissed from service. Accordingly the respondent No.2 awarded major punishment of dismissal from service with effect from the date of arrest viz. 17-11-1992. That the appellant filed appeal before the High Court of Sindh, Circuit Court Larkana against the order of STAA Court Larkaana. That the High Court of Sindh gave benefit of doubt to the appellant and acquitted him on 31-1-1995. That after the release from the Jail, appellant filed a departmental appeal on 15-3-1995 before respondent No.1 which was rejected by respondent No.1 vide order No.EII/9235 of 1996, dated 10-6-1996. Against this the appellant has preferred the appeal before this Tribunal.
4. We have heard the learned counsel Mr. Abdul Majid Pathan for appellant and Mr. Sher Muhammad Shar, A.A.-G. at length and have also perused the record. The learned counsel for the appellant has argued that the appellant was arrested on 23-8-1992 and was remanded with the Law Enforcing Agency up to 17-11-1992. According to him the appellant was handed over to d. Mr. Mumtaz Ali of Police Station Nasirabad on 17-11-1992 and K.K. and live rounds foisted and case was registered being F.I.R. No,20 of 1992 at Police Station Veehar. He has argued that the show-cause notice was served to appellant on 2-3-1993 and the same was replied on 3-3-1993 through Jail authorities wherein the appellant has requested for fair inquiry. That no inquiry was conducted as requested by the appellant nor he was heard in person, neither final show-cause notice was issued, as such the appellant has been condemned unheard and no fair chance has been afforded to the appellant. He has further argued that the appellant was convicted by STA Court Larkana on 27-6- 1996 and was acquitted on 31-1-1995 by Honourable High Court. That respondent No,2 without giving any opportunity to the appellant and waiting for the decision of the proceedings sub juiced before the Honorable High Court awarded major penalty of dismissal from service on 6-11-1993 which is bad in law. The learned counsel has relied upon: 1993 PLC (C.S.) 460, 1994 PLC (C.S.) 1384, 1991 PLC (C.S.) 444, PLC (CS) 1996 page 1054, 1993 PLC (C.S.) .1291 and lastly SCMR 1983 page 160. Mr. Sher Muhammad Shar A.A.G. has argued that the appellant was arrested on 12-10-1992 and not on 17-111992 as stated by the appellant. The fact is also corroborated by the F.I.R. produced bearing the F.I.R. No,20 of 1992, dated 12-10-1992. According to him the appellant was arrested in a Nakabandi along with one K.K. and 80 live rounds. According to the teamed A.A.G. the appellant is a member of the gang of dacoit Gulab Ali Jiskani. He has also been challaned under section 110, of Cr.P.C. According to him the High Court has acquitted him and has given him only the benefit of doubt. We have heard the arguments of both counsel and with their assistance perused the record and also considered the citations relied upon by the advocate for the appellant minutely. We are of the considered view that the department has miserably failed to observe the legal formalities and have not afforded effective opportunities to the appellant as required by law. Hence, we accept the appeal with no order as to costs and the impugned dismissal order, dated 6-11-1993 of respondent No,2 is set aside and the appellant is reinstated in service with back benefits. It would be open to the Departmental authorities to hold fresh enquiry strictly in accordance with the relevant service rules.
5. Given under our hands and Seal of this Tribunal this 1st day of October, 1997.