1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973, has been preferred seeking leave to appeal against the judgment dated 30-3-2000 passed by Federal Service Tribunal, Islamabad, in Service Appeal No,113(R) of 1999 filed by the petitioner against his dismissal from service..
2. ' The facts leading to this petition in small compass are that the petitioner being Member of Police Service of Pakistan was holding the duel charge as S.S.P. As well as D.I.-G. CIA, Karachi during the period from December, 1990 to January, 1992. In view of the poor performance of petitioner, the Competent Authority decided to initiate proceedings against the petitioner under Government Servants (Efficiency and Discipline) Rules, 1973 and consequently he was suspended on 26-1-1992 and was issued a show-cause notice on 9-6-1992 containing 21 allegations which as per opinion of Competent Authority would constitute the act of misconduct, inefficiency, corruption and persistent reputation of being corrupt in terms of Rule 3(a), (b) and (c) of the ibid Rules and would be sufficient for imposing the major penalty of dismissal from service. The petitioner, submitted reply to the show-cause notice and denied the allegations. The Competent Authority having found the reply not satisfactory charge-sheeted the petitioner in August, 1993. In the meantime, an inquiry into the above-said allegations against the petitioner was conducted by the Prime Minister's Inspection Commission ,in which the petitioner was not associated. In addition to the departmental action, the petitioner was also proceeded against criminally in four different cases registered against him on the basis of same allegations but was subsequently acquitted. The regular inquiry against the petitioner due to the change of Inquiry Officers remained pending which could only proceed in September, 1997 and was completed by Mr. Zahid Mura, P.S.P. Officer who while exonerating the petitioner from all charges contained in the charge-sheet except charges Nos.8 and 19 submitted his report on 16-5-1998 with the following conclusions:--.
3. ' .The accused officer, however, cannot be completely absolved of poor supervision and lack of control over subordinate staff who were carrying out poor investigations, with strong probability of mala fide intentions while exercising powers under section 54 and section 169, Cr.P.C. Which amounts to misconduct within the meaning of Efficiency and Discipline Rules, 1973."
4. ' The Prime Minister's Inspection Commission in the inquiry conducted in relation to the same allegations against the petitioner concluded as under:-- ' "CIA under Mr. Samiullah Marwat as its Acting D.I.-G. Resorted to illegal confinements and tortures, registered false cases with ulterior motive and are guilty of harassment for extorting money or other favours. Though the law (section 54, Cr.P.C.) empowered a police to arrest without warrant any person against whom reasonable suspicion existed of his having been involved in a cognizable offence, yet this power has been used by CIA with ulterior motives and in a most mala fide and callous manner. Merely by recording in the diary of case under investigation that according to the informer/spy's information (name not mentioned) such and such person was involved in the crime the socially well placed personalities. Such information from an informer could not be considered sufficient to cause reasonable suspicion against the person. Moreover, when the information of the so-called informer/spy proved incorrect and the arrested person was found innocent no action under section 182 of Pakistan Penal Code was taken against the informer/spy. In the opinion of the Inspector under section 54, Cr.P.C. It was the duty of Mr. Samiullah Marwat, D.I.-G., CIA to ensure that no illegal confine and harass persons whose only fault appearing to be their high financial position and who could be squeezed for ulterior motives. Mr. Samiullah Marwat miserably failed in his duty,"
5. ' In pursuance of the findings given by the Inquiry Officer in the regular departmental inquiry and the report of Prime Minister's Inspection Commission the Authorized Officer (Secretary Establishment Division) having formed the opinion that petitioner was guilty of the charges at Serial Nos.1 to 8, 18 and 19 in the charge-sheet which related to inefficiency, corruption and misconduct served upon him the final show-cause notice on 3-8-1998 proposing the major penalty of dismissal from service. The petitioner submitted reply to the final show-cause notice, in the light of his explanation to the charges contained in the charge-sheet, the Competent Authority having provided personal hearing to the petitioner and satisfying himself to the correctness of the allegations contained in the charge-sheet in the light of the report of the Inquiry Officer and the evidence produced in support thereof dismissed the petitioner from service and in consequence thereto a notification dated 17-9-1998 was issued by the Cabinet Secretariat, Establishment Division. The departmental appeal preferred by the petitioner was not decided within the prescribed period, therefore, pending disposal of said appeal petitioner filed an appeal before the Federal Service Tribunal under section 4 of the Service Tribunals Act, 1973 and later the departmental appeal of the petitioner was also dismissed. The Federal Service Tribunal in the light of the findings of the Inquiry Officer and the report of Prime Minister's Inspection Commission dismissed the appeal of petitioner through the impugned judgment.
6. ' The learned counsel for the petitioner has contended that the dismissal of the petitioner on the basis of the inquiry conducted by the Prime Minister's Inspection Commission was illegal as the said inquiry was conducted ex parte without associating the petitioner and further the said inquiry being not part of departmental proceedings initiated against the petitioner under Government Servants (E & D) Rules, 1973, would not be relevant to be used as evidence against him in the departmental proceedings and consequently the penalty of dismissal from service. On basis of said report would be without lawful authority. The learned counsel submitted that neither the petitioner was associated in the inquiry conducted by Prime Minister's Inspection Commission nor the report in question was put to him in the departmental inquiry and therefore, the use of it as evidence against the petitioner would amount to condemn him unheard. Learned counsel for the petitioner, however, conceded that the Inquiry Officer in the departmental inquiry found the petitioner guilty of charges Nos.8 and 9 relating to the loose control on his subordinates, inefficiency and involvement in illegal arrests and investigation of the political opponents of the then Government independently on the basis of evidence brought in the said inquiry. The learned counsel, however, argued that the allegation regarding the acts of subordinates of the petitioner would not as such-be a valid ground to proceed against the petitioner and fix his responsibility for major penalty of dismissal from service. The learned counsel emphasized that the Competent Authority being prejudiced by the report of Prime Minister's Inspection Commission proceeded to award major penalty of dismissal from service to the petitioner which was further maintained by the Service Tribunal without any legal justification.
7. ' We have heard the learned counsel for the petitioner at length and also anxiously considered the contentions raised by him in support of this petition.
8. In the departmental inquiry, the Inquiry Officer has found the petitioner guilty of charges Nos.8 and 19 on the basis of evidence brought in said inquiry and in the light of the findings of Inquiry Officer, the petitioner was issued final show-cause notice and the Competent Authority having considered the matter passed the order of dismissal of petitioner from service under Government Servants (Efficiency and Discipline) Rules, 1973. However, we have noticed that Departmental Authorities in addition .To the report of Inquiry Officer have also considered the report of Prime Minister's Inspection Commission. There can be no exception to the rule that the material which was not brought on record in the proceedings before the Inquiry Officer and was not put to the accused officer in the inquiry could not be used against him as evidence by the authorized officer and the Competent Authority and consequently the reference of the report of Prime Minister's Inspection Commission made by the Service Tribunal in impugned judgment was not proper and legal, therefore, the contention of the learned counsel to that extent was not without force we, therefore, without treating the report of Prime Minister's Inspection Commission as material against the petitioner for the purposes of inquiry under Government Servants (Efficiency and Discipline) Rules, 1973, proceed to examine the legality of the impugned action in the light of findings of the Inquiry Officer in the departmental inquiry. The perusal of inquiry report submitted by the Inquiry Officer would show that allegations under charges. Nos.8 and 19 relating to inefficiency, loose control over subordinates and victimization of citizens through the illegal arrests, detentions and registration of false cases, were proved by the evidence brought on record in the inquiry. Charges Nos.8 and 19 against the petitioner as contained in the charge-sheet are reproduced hereunder:-- Charge No,8 ' "That the CIA officials, at your instance, forcibly got a blank cheque signed by Mr. Aslam Chaudhary ex-Manager, Colony Sarhad Textile Mills, Karachi, that delivery orders for cloth was also got signed forcibly from his son which was later lifted with the help of CIA officials. That CIA officials also looted his sons's office record, including foreign exchange bearer certificates worth rupees
(sic) million and share certificates worth Rupees one lac and that both of them were confined by CIA officials unlawfully and were implicated in false criminal cases."
9. Charge No,19 ' "That you got the following persons picked up by the CIA officials and afterwards released them on payment of heavy bribes:
(1) Mr. Naeem Dad and Badshah Khan.
(2) Mr. Qaiser Khan.
(3) Mr. Amjad Hussain, Ex-M.D. P.S.O.
(4) Haji Ayub, Fisherman Ibrahim Huydri.
(5) Mr. Akhtar Javed Peerzada of Air International Travel Agency, Karachi.
(6) Mr. Muhammad Rafi, Muhammad Shehzad and Dora.
(7) Mr. Arshad Jamal, an employee of a local Security Agency Mr. Fazal Din.
(8) Mr. Fazal Din.
10. (9). Mrs. Raheela Tiwana.
(10) Ms. Shela Raza."
11. ' The findings of Inquiry Officer on charge No,8 are as under:- ' "The allegation was contested by Aslam Chaudhry who deposed (Exh.52) that on 8th August, 1991, at the instance of his employee M/s. (Colony) Sarhad Textile Mills Ltd., he was detained illegally, with the help of CIA Staff first in the office of the Mill and later on in a private bungalow in Defence Society, Karachi. The next day his wife sent a telegram to Sindh High Court and also filed a petition before it (309 of 1991) against CIA and his employees. The petition was dismissed as the CIA had shown his arrest in F.I.R. No,34 of 1990 of Police Station Gulzar-e-Hijri. After being released in this case, he was arrested in another case (109 of 1990 of Police Station Napier) and released again under section 169. He alleged that all this was at the instance of Samiullah Marwat and that after paying 6 lacs to Inspector Leharasap a further demand of 24 lacs was made by the accused officer under threat of registration of false case.
12. ' He was cross-examined by the accused officer and admitted that the petition he filed in the Sindh High Court was dismissed and that the complaints sent by him to the Prime Minister and Inspector- General of Police, Sindh were filed. Also that a direct complaint was made by his son before a Magistrate which was forwarded to the Sessions Court (heard by Judges) and dismissed and that he did not file an appeal. He admitted that in February, 1994, he got a case (F.I.R. No,47 of 1994) registered against the accused officer, Inspector Leharasap. Imanullah Marwat and his ex- employers but said that he was unaware of the outcome of the case or the fact that it had been disposed of under section 173 due to lack of evidence.
13. ' The contention of accused officer in his reply to charge-sheet is that Aslam Chaudhry was arrested in Crime No,34 of 1990 Police Station Gulzar Hijri criminal petition filed by his wife has been dismissed no action was taken on the application made to Prime Minister and that there is not scope of inquiry after dismissal of criminal petition by the High Court.
14. ' Additionally the accused officer during personal hearing after closure of the evidence submitted judgment of Sessions Judge, South dated 6-12-1996 (pertaining to direct complaint) which is already admitted by the witness. (Exh.61-B).
15. ' The perusal of statement/evidence of witness, reply of accused officer and the documents submitted under subject does not prove the looting of FEUCs and share certificate (mentioned in charge-sheet) dace not a single word has been said by the witness to this effect. The same is the case about getting Signatures on a blank cheque since nothing has been said relating to this incident.
16. ' The allegation of getting signatures from his (Chaudhry Aslam's) son under duress, on delivery orders for lifting cloth worth 25 million, is not supported as the witness mentioned in the statement, nor the son, were produced by the complainant.
17. ' The dismissal of direct complaint by Sessions Judge by judgment dated 28-1-1998 relates to same cloth and the direct complaint was filed against four persons excluding the accused officer, therefore, the judgment has direct bearing upon the facts in issue. It is surprising as to why the accused officer was not made party in the direct complaint when he was alleged to be one of the main culprits (Exh.61-B).
18. ' This witness has alleged payment of Rupees 6 lacs as bribe through Inspector (late) Raja Lehrasap. But this is not proved since neither Raja Lehrasap could be examined nor any persons in whose presence Raja Lehrasap was paid. -Nor is this part of the allegation in the charge-sheet.
19. ' Regarding the allegations of being implicated in false cases. The witness has no enmity with the accused officer and has been pursuing his grievance since the last many years at every forum that was available to him. His arrest has been admitted by the accused officer, in Crime No,34 of 1990 of Police Station Gulzar Hijri under section 365-A, P.P.C. And section 17(3) of Hudood Ordinance, 1997 as there was definite information of his connection with terrorists. Remand was taken from Court.
20. However, he was later on released under section 169. He was arrested again in a pending case of Police Station Napier under sections 302, 307 and 34. Though arrests and release were regularized yet these arrests indicate the modified intentions of CIA Staff. Of course, such arrests, obtaining remands, investigating and releasing under section 169 is done by Investigating Officers. But the accused officer, as over all supervisory officer, ought to have known what was going on and tried to find out whether the arrest/detention is justified or not and put a stop to such highhandedness.
21. Provisions in law (section 54, Cr.P.C. And section 169). He should also have examined whether the use of section 54 and section 169 was proper and judicious or mala fide. Therefore, the senior officer incharge (the accused officer) cannot be absolved of lack of control over subordinates who were carrying out poor investigations, and misusing powers with strong possibility of mala fide intention. This is borne out also from the cross-examinations of the witness by accused officer and that of the accused officer by the witness (Exh.52-B & C)."
22. ' The Enquiry Officer having considered the evidence produced in support of the charge No,19 concluded as under:- ' "In this allegation names of 12 individuals have been given (actually 11) as the name at Serial No,7 has been repeated at Serial No,12. The accused officer has explained the circumstances of arrest and subsequent release of persons listed therein, except those at Serial Nos.6, 7 and 12, about whom he has denied having any knowledge of their arrest etc., by CIA Mr, Akhtar laved Pirzada (Serial No,5) and son of Mr. Soomro (Serial No,11) were examined. Both have not implicated the accused officer (Exh..12) and (Exh.37). During course proceedings to cause attendance of witnesses, since Serial No,1 Badshah Khan was not traceable and one Nazir Ahmad Maree (Exh.33) that he is absconding to Allaqa Ghair due to enmity and in case of Serial No,8 Fazal Din, one Sarwar Jat (Exh.35), President of Anjuman-e-Fankaran Rakkasan. Napier Road, Karachi appeared and deposed that he was living with his daughter in Room No,37, Bulbul Hazar Dastan and for last. 4 and 5 years he has left for Punjab and is not aware of his whereabouts.
23. ' Mrs. Raheela Tiwana (Serial No,9) in her statement has said that on 25-12-1990. CIA Personnel headed by. Malik Ahsan, raided her house, picked up her father and brother and also took away cash of Rs,3 lacs, prize bonds of Rs,50,000 and jewellery worth Rs,2 lacs. She too was later on detained at CIA Centre, where false cases were registered against her. She was tortured and pressurized to. Give Rs,10 lacs as bribe through his subordinate officers in order to be released. The accused officer has admitted the arrest and challan in Case No,136 of 1990 of Police Station Ferozabad. He also mentions that during the course of her detention (and that of Shela Raza) a Criminal Miscellaneous Petition No,D-29 of 1991, were moved in High Court of Sindh but was disposed of (Exh. 61-C). The demand of bribe was made through subordinate' officers and no witness was produced by the lady. Thus, as in many such cases, that occur regularly, it is very difficult to prove the demand or acceptance of bribe.
24. ' The accused officer has acknowledged the arrests, first in Case No,6 of 1991 under Arms Ordinance, and later on Case No,436 of 1990, under section 302/34, P.P.C. Of Police Station Ferozabad. Both cases were sent up to Courts. But sending up the cases to the Court do not necessarily imply that the cases are true. Very often, in this country, cases are sent to Courts and takes years for the accused to prove their innocence. Although procedures were followed, but there is the impression that intentions were mala fide. The arrests were probably at the behest of the political Government of the day, as the witness was a strong supporter and active worker of another political party. But the police, especially supervisory officers, should not be a party to such victimization and should not become willing tools. In the cross-examination, the officer admitted that during his 'Rounds' at CIA Centre, 'once or twice' he came across the witness, and enquired about her well being. She made no complaints of being tortured as such he took no action against anyone (Exh.60-C) since he knew about the arrest of the witness, the accused officer as the senior supervisory officer, should have seen if the cases were genuine, proper investigation was carried out and while in custody there was no torture etc. Merely leaving it to Investigating Officers who would obviously claim that necessary procedure were being followed, is not a just explanation.
25. Medical reports also indicate witnesses condition (Exh.60-D).
26. ' As such the officer cannot be totally absolved of lack of control over subordinates, who were responsible for poor investigations and misuse of power with strong possibility of mala fide intentions."
27. Learned counsel for the petitioner when confronted with the finding of Inquiry Officer on the above said two charges, he has not been able to satisfy us that the above findings of the Inquiry Officer were suffering from misreading or non-reading of evidence or that the allegations under the above said two charges would not be sufficient to constitute an act of inefficiency of the petitioner as a senior police officer. The petitioner while holding the charge of S.S.P. And D.I.-G., CIA, Karachi would be deemed to be the custodian of the rights of citizens and was under legal obligation not to permit his subordinates to use the machinery of criminal law against the innocent people instead of protecting their rights and liberties as guaranteed under the Constitution and was also not supposed to take any exception to the illegal acts of his subordinates. The exercise of powers by the public functionaries in derogation to the direction of law would amount to disobey the command of law and the Constitution. The concept of administration of justice is not confined only to the judicial system rather every person discharging the functions in relation to the rights of people is bound to act fairly, justly and in accordance with law and if a person holding a public office is found to have proceeded in violation of law or his acts and conduct amounted to misuse his official authority, he should be made answerable to law and should be proceeded against for an appropriate action by his superiors. In the present case the petitioner while holding the charge of S.S.P. And D.I.-G., CIA, Karachi despite having knowledge of the irregularities being committed by his subordinates did not take any step either to undo the same or take any action against the officials involved in such activities, therefore, it cannot be pleaded on his behalf that either he was not responsible for the illegal acts of his subordinates or that such activities in the CIA, Karachi were not in his knowledge.
28. ' The "misconduct" has been defined under section 2(4) of the Government Servants (Efficiency and Discipline) Rules, 1973 as under:- "(4) ' misconduct' means conduct prejudicial to good order to service discipline or contrary to the Government Servants (Conduct) Rules, 1964 or unbecoming of an officer and a gentleman includes, any act on the part of a Government servant to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government, promotion, transfer, punishment, retirement or other conditions of service of a Government servant."
29. ' The perusal of the report of the Inquiry Officer and the evidence brought in the inquiry would show that the petitioner not impliedly but expressly permitted his subordinates to act and conduct in the manner as stated above. The conduct of petitioner thus would be prejudicial to the good order to service discipline and of unbecoming of an officer and a gentleman. Consequently, he would be guilty of misconduct. We may observe that illegal arrests and detentions in fake cases against the innocent people and the victimization of the political opponents of the Government by the CIA Police, Karachi, through the machinery of criminal law was very serious matter and the petitioner being incharge of CIA, Karachi, was directly responsible for such acts of his subordinates and was under legal duty to prevent them from violation of law and mandate of the Constitution. The petitioner instead of discharging his sacred responsibilities as custodian of law in the capacity of S.S.P. And D.I.-G., CIA, Karachi in gross violation of law for extraneous considerations, allowed the CIA, Karachi to indulge in such illegalities and thus the charge of inefficiency and misconduct in the light of direct evidence of the above acts of his subordinates would be proved against the petitioner beyond any doubt. The failure of the petitioner to initiate departmental proceedings against his subordinates for the illegalities being committed by them despite knowledge would be a strong proof of his own involvement in such activities and the presumption would be that said activities in CIA were being carried out under his instructions. We may observe that mere inefficiency may not as such fall within the definition of misconduct but the wilful `violation of law by a senior officer and permission to his subordinates violate the law, would tantamount to misconduct and indiscipline. The Inquiry Officer absolved the petitioner from all other charges mentioned in the charge-sheet and found him guilty only of charges Nos.8 and 19 which would show that Inquiry Officer, was entirely independent and petitioner also had pleaded no bias against the Inquiry Officer, therefore, no exception can be taken to the report submitted by him. The inefficiency of the petitioner in the given circumstances, would not be confined only to a minor error or negligence rather it being of lasting character was a rich source of violation of fundamental rights of the citizens in departure to the mandate of Constitution, misuse of authority of law by the officials of CIA, Police, Karachi and serious indiscipline in the police force.
30. ' We having perused the record find that the findings of Inquiry Officer relating to the charges in question are substantiated by the evidence brought on record and were not based on mere assumptions. We are, therefore, of the considered view that the order of dismissal of the petitioner from service passed by the Competent Authority, could sustain without the report of Prime Minister's Inspection Commission and further the major penalty of dismissal from service on the charges relating to the inefficiency and loose control over the subordinates who were indulged in illegal activities, was unexceptionable.
31. For the foregoing reasons, we having found no substance in this petition while maintaining the impugned judgment of Service Tribunal dismiss the same and leave is refused.