' RAJA AFRASIAB KHAN, J. ---On 9-2-1965, the appellant, Muhammad Iqbal Zaman was appointed as Patwari in Irrigation Department. In lieu of good performance, he was promoted as Vernacular Clerk. In 1985, he was involved in a murder case vide F.I.R. No,160, dated 19-7-1985, Police Station Miryan, Bannu, and in consequence thereof on 10-11-1985, he was suspended from service by the respondent No,
1. An Additional Sessions Judge, Bannu vide his judgment, dated 22-8-1989 convicted and sentenced the appellant to imprisonment for life in the abovesaid murder case. On appeal, the Peshawar High Court, Circuit Bench D.I. Khan vide its judgment, dated 15-5-1990 acquitted him of the murder charge. The petition for leave to appeal filed by the complainant against the abovesaid judgment was dismissed by this Court on 6-5-1991. After his acquittal, pursuant to his application, he was reinstated in service on 14-7-1991. The prayer regarding arrears of pay relating to his suspension period was declined vide order, dated 4-7-1993, on the ground that he was not honourably acquitted but was given the benefit of doubt. He filed appeal before the respondent No,3, Chief Engineer, Irrigation Department, Peshawar on 15-7-1993, which could not be decided within the statutory period of 90 days. He filed appeal before the N.-W.F.P. Service Tribunal, which was dismissed by it vide its decision, dated 15-11-1994. Leave to appeal was granted to the appellant vide order, dated 8-11-1995, relying upon the dictum laid down in Mian Muhammad Shafa v. Secretary to Government of the Punjab, Population Welfare Programme, Lahore and another (1994 PLC (C.S.) 693) and Government of Pakistan through the Secretary, P.W.D. (Irrigation Branch), Lahore v. Mian Muhammad Hayat (PLD 1976 SC 202) to consider whether the Tribunal has correctly followed the dictum of this Court in the case of Mian Muhammad Hayat, (supra) in declining the claim of arrears to him holding that acquittal was not honourable.
2. Learned counsel appearing on behalf of the appellant has argued that it is established on record that the appellant, has been honourably acquitted of the murder charge. He has drawn our attention to the impugned judgment of the Tribunal wherein it has been observed that the appellant has honourably been acquitted. Learned Additional Advocate-General, N.W.F.P. Has argued that the impugned decision is unexceptionable, inasmuch as, a finding of fact has been recorded by the Tribunal that the acquittal of the appellant is based on benefit of doubt.
3. We have heard the learned counsel for the parties at some length and have perused the record with their assistance. We are of the view that the acquittal, even if, based on benefit of doubt, is honourable. Thus, an acquittal based on benefit of doubt does not become a hurdle in the payment of arrears of pay to the appellant herein regarding his suspension period, provided he has not been found to be gainfully employed during that period. Learned counsel for the appellant placed on record an information in writing to show that the appellant was not gainfully employed during his suspension period, which reads thus:-- "BEFORE THE SUPREME COURT OF PAKISTAN (Appellate Jurisdiction)
' C.A.No,1152 of 1995.
' Muhammad Iqbal Zaman---Appellant versus ' Superintending Engineer and others---Respondents ' Respectfully sheweth, ' As directed by this Hon'ble Court today during the hearing of the above apeal and as instructed by appellant it is submitted that during his suspension period appellant was not employed anywhere else and did not earn.
(Sd.)
(Abdul Aziz Kundi), Advocate-on-Record for Appellant, Islamabad ' 11-3-1999."
When faced with this situation, learned Additional Advocate-General was unable to rebut the argument of the learned counsel for the appellant. This being so, we are inclined to agree with the learned counsel that the appellant is entitled to receive the arrears of his pay for the suspension period inasmuch as he has not been found to be gainfully employed during that period. The Tribunal has failed to follow the view of the Service Tribunal in the case of Mian Muhammad Shafa (supra), which reads:-- "There is hardly any ambiguity in these provisions and they do not present any difficulty. We are in no doubt that the provisions of clause (a) are attracted by the facts on the ground that the appellant was acquitted of the charge against him. Although, the department claims that this was the result of benefit of doubt, we would hold that the acquittal is honourable within the meaning of this rule. As a matter of fact, all acquittals are honourable and the expression honourable acquittals' occurring in clause (a) seems to be superfluous and redundant. It is one of the most valuable principles of criminal jurisprudence that for a judgment of conviction it is the duty of the prosecution to establish its case beyond all reasonable doubt. If it fails to do so, the accused will be entitled to acquittal and such acquittal will be honourable, even if it is the result of a benefit of doubt. The expression 'benefit of doubt' is only suggestive of the fact that the prosecution has failed to exonerate itself of the duty of proving its case beyond all reasonable doubt.
' In the present case, therefore, the appellant's acquittal of the charge of misconduct and his consequential reinstatement in service entitled him to full pay and remuneration of the entire period from 6-10-1980 to 12-2--1986 under Fundamental Rule 54(a) of the Rules. We hold that the provisions of Fundamental Rules 54(b) are not relevant and that they could not have been pressed into service by the Department in deciding the matter." (Emphasis supplied) .
' The above view of the Tribunal was upheld by this Court in Dr. Muhammad Islam v. Government of N.-W.F.P. (1998 PLC 1430). Reference may also be made to Malik Azharul Haq v. Director of Food, Punjab, Lahore and another (1991 SCMR 209). It is evident that in the above precedent case, under almost similar circumstances, the appellant therein was acquitted. On the basis of the said acquittal, he was reinstated in service and back benefits were paid to him. In other words, this is the latest law declared by this Court on the controversy. The Tribunal was, therefore, bound to follow this law in letter and spirit under Article 189 of the Constitution of Islamic Republic of Pakistan, 1973.
We feel no hesitation to reiterate the above view because it is in consonance with law, principle of natural justice and equity. The appeal is, accordingly, accepted by setting aside the impugned judgment of the Tribunal with no order as to costs. The department shall pay the arrears to the appellant as expeditiously as possible, preferably within three months.