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Civil Appeals Nos. 29‑K and 30‑K of 1984, decided on 4th March, 1986.

(On appeal from the judgment and order of the Service Tribunal of Sind, dated 27‑2‑1483, in Appeals Nos. 32/ts2 and 33/82).

(a) Constitution of Pakistan (1973)‑‑

‑‑‑Art. 212(3)‑‑Service Tribunals Act (LXX of 1973), S.3‑‑Leave to appeal granted to consider contention that Tribunal had erred in law by not giving any finding on issue that on account of clear directions issued by Officer to take severe disciplinary action against accused officials who misbehaved with some officers, and, therefore, departmental authorities were left with no discretion to exercise their own independent judgment and acted under dictation of officer and entire enquiry proceedings concerned were thus nothing more than a mere formality.

(b) Sind Civil Servants (Efficiency and Discipline) Rules, 1973‑‑

‑‑‑

R.5‑‑Accused Police Officers put on patrol duty at night around shop of glass bangles on account of fact that Eidul Fitr was falling two days after and there was heavy rush of shoppers‑‑Such official misbehaved and detained two officers of Defence services‑‑Joint Board of Inquiry consisting of Police officers and Officers of Defence forces submitted. their report to Base Commander who recommended severe disciplinary action against accused Police officers‑‑Accused police officers were found guilty and were compulsorily retired from service after they were afforded full opportunity of defence as a result of disciplinary inquiry conducted by Police Department‑‑‑ Such accused police officers were not prejudiced by any bias or dictation on account of said remarks of Base Commanding Officer and throughout proceedings no objection was raised by accused that they were prejudiced on account of remarks of Base Commander‑‑Order passed against accused not suffering from any legal infirmity‑‑Appeal against such order dismissed.

Fazle Ghani Khan, Advocate Supreme Court with M.S. Ghaury, Advocate‑on‑Record for Appellants (in both Appeals).

Abdul Sattar Shaikh, Assistant Advocate‑General with Muzaffar Hassain, Advocate‑on‑Record for Respondent.

Date of hearing: 19th January, 1986.

.‑‑As common questions of law and fact were raised in these two appeals, we have heard them together and propose to dispose them of by this consolidated judgment.

2. Allah Ditta, the appellant in Civil Appeal No. 29‑K/84, was a Police Constable and Raja Bostan Khan, the appellant in Civil Appeal No. 30‑K/84, was an Assistant Sub‑Inspector in the Police Department of the Province of Sind. On 11th August, 1980 they were both detailed for patrol duty on the assigned beat from Yousuf Plaza to Water Pump, Block 14/16, Federal 'B' Area, Karachi, from 2200 hours to 0200 hours. On account of the fact that Eid‑ul‑Fitr was failing two days thereafter, there was heavy rush of shoppers around the shops of glass bangles. It is alleged that at about 2230 hours Pilot Officer Yousuf was stopped and maltreated on the road as well as at Police Station without any reasonable excuse, although he had disclosed his identity that he was a Commissioned Officer of the Defence Services. While the appellants were trying to forcibly take Mr. Yousuf to the Police Station, Jauharabad, Flight‑Lt. Shahid also came there on his motorcycle and gave a lift to Mr. Yousuf to the Police Station with a view to lodge a report against the misbehaviour of the police personnel. While they were at the Police Station, Raja Bostan Khan alongwith Alla Ditta also arrived there. It is alleged that Flight‑Lt. Shahid was then further insulted by Raja Bostan Khan. The two Air Force Officers are said to have been detained at the Police Station until the Air Force Police arrived at about 4.00 a.m. and, got them released.

3. A preliminary inquiry was held by a Joint Board of Inquiry consisting of Squadron‑Leader Khaliq‑ur‑Rehman as President, Flight Lieutenant Ishtiaq Ahmad, Flying Officer S.R. Farooqui as members and D.S.P., Sabir Ali Khan of Liaquatabad Division, representing the police. The terms of reference for the inquiry were as under:‑

(a) To enquire into the circumstances under which Flight‑Lt. Shahid Jamil Hashmi Pak/6838 (A&SD) of No. 107 MU and Plt. Off. Yousuf Pak/7630 (Maint Egypt) of No. 101 MU P.A.F. Base Shahrah‑e‑Faisal were manhandled and kept under unlawful custody by Civil Police of Jauharabad Police Station, Liaquatabad, Karachi, on 11th August, 1980.

(b) To apportion blame.

(c) To furnish recommendations to avoid recurrence of such nature in future."

The joint Board of Inquiry submitted its findings on 28th September, 1980 on which the Base Commander, P.A.F. Base, Shah rah‑e‑Faisal, noted the following remarks:‑

"(1) Severe disciplinary action should be taken against A.S.I. Bostan, A.S.I. Bostan Manazar Hussain, Constable Allah Ditta and Constable Pista Khan by the Police Department for using criminal force and abusive language against the P.A.F. Officers.

(2) Disciplinary action by the Department concerned is also to be taken against Head Constable Akram for using abusive language against an Officer of the Pakistan Army."

The findings of the Joint Board of Inquiry together with the record of the proceedings were then forwarded to the Inspector‑General of Police, Sind, who by his order vi

(4) In compliance with the aforesaid order separate charge‑sheets were served against the two appellants and departmental inquiry was held by the Superintendent of Police, Liaquatabad Division Karachi. The said officer found each one of the appellants guilty of misconduct and by separate orders dated 13th January, 1981 dismissed each of the appellants from service. The departmental appeals filed by the appellants before the Deputy Inspector ' General of Police were rejected and their revision applications to the Inspector‑General of Police succeeded only partially in that the final orders passed by the Superintendent of Police were modified converting dismissal into compulsory retirement of the two appellants with effect from 13th January, 1981.

5. Being aggrieved by the aforesaid order of compulsory retirement the two appellants filed separate appeals under section 4 of the Sind Services Tribunal Act, 1973, before the Sind Service Tribunal, Karachi. The contention raised and considered by the Tribunal will appear from the following portion of the order passed on the appeals of the appellants.

"The learned counsel for the appellants has urged that the incident was not so serious as to call for the extreme penalty of compulsory retirement from service. That the officers may have been guilty of some rude behaviour and may have exceeded their powers, but they had done so not knowing that the persons concerned were Commissioned Officers of the Air Force. However, as rightly pointed out by the S.P. in his report, these Police officers had no licence even to beat the members of the public who had committed no fault besides passing through the Bazar.

Such examples of high handedness and misbehaviour by petty officials give a bad name to the department and ought to be put down with strong hand. We, therefore see no reason to interfere with the decision of the Additional I.G. who has already considered the case of the appellants and reduced their punishment from dismissal to compulsory retirement."

In the view taken by the Tribunal, the appeals were dismissed by the consolidated judgment of the Tribunal dated 27th February, 1983.

6. As the appellants were dissatisfied with the result of their appeals before the Service Tribunal, they approached this Court and leave was granted to consider the contention that learned Tribunal has erred in law by nut giving any finding on the issue that on account of the directions issued by the Officer Commanding, P.A.F. Base, Shahrah‑e Faisal, Karachi, to take severe disciplinary action against the petitioners and others, the departmental authorities were left with no discretion to exercise their own independent judgment and were acting clearly under the dictation of the Officer Commanding P.A.F. Base and the entire enquiry proceedings held by Mr. Munawar Ali, Superintendent of the Police, Liaquatabad Division, were nothing more than a mere formality since Mr. Munawar Ali Superintendent of the Police had clear directions from the Air Commodore Officer Commanding, P.A.F. Base, Shahrah‑e -Faisal, Karachi that severe disciplinary action should be taken against both the petitioners and other officials."

7. Mr. Fazle Ghani Khan, learned Advocate appearing on behalf of the appellants has not taken any objection as to any legal infirmity in the conduct of the inquiry proceedings taken against the appellants, the sufficiency of evidence or the findings recorded by the Inquiry Officer. He has only reiterated the contention advanced by him in support of the leave petition and recorded in the leave granting order as mentioned above. Thus the only question for consideration is whether, the appellants were prejudiced in their defence on account of direction issued by the Officer Commanding, P. A. F. Base, Shahrah‑e‑Faisal, Karachi and whether the Inquiry Officer's judgment in reaching findings against the appellants were in any way dictated by such direction. In support of his contention learned counsel has drawn our attention to the final order dated 13th January, 1981 passed by the Superintendent of Police Liaquatabad Division Karachi. It is pointed out that the finding of the joint Board of Inquiry were admittedly taken into consideration by the Inquiry Officers along with remarks of the Base Commander on these findings. Now the fact that a preliminary inquiry was conducted into the allegations involving two Officers of the Defence Forces before the disciplinary action was taken against the appellants by the department is by itself no reason to hold that any prejudice was caused to them or that this exercise was designed to influence the decision that may ultimately be taken in a departmental action against them. On the contrary since members of the defence forces as well as the police force were involved in an incident, which prima facie required to be examined, the appropriate line of action was to constitute a Joint Board of Inquiry in which both forces were represented. The effect of such inquiry was, only to protect the interest of the accuse police personnel, so that no uncalled for harassment be caused to them at the instance of the defence personnel. This cannot be a reason ipso facto, therefore, to have caused prejudiced to the appellants. As regards the remarks of the Base Commander that severe disciplinary action be taken against the appellants, also cannot be construed as a direction or dictation to the relevant authorities to take penal action against them. In our opinion the remarks clearly import that action be taken against them according to relevant Service Rules in disciplinary matters. This is clear from the fact that the report of the Joint Board of Inquiry and the remarks were forwarded, to the Inspector‑General of Police, Sind, who in turn ordered proper departmental proceedings to be taken against the appellants. In pursuance of these orders a formal charge sheet was framed and served on the accused officers, and evidence was produced in support of the charges through examination of witnesses who were cross‑examined after proper opportunity was afforded to the appellants. Not only that but the appellants were allowed full opportunity of defence and their defence witnesses were also examined. Throughout the proceedings no objection was raised that the appellants were prejudiced on account of the remarks made by the Base Commander. In this behalf we may point out an important fact which in our opinion should have dispelled any apprehension in the mind of the appellants that the Inquiry officer would not apply his mind independently, uninfluenced by remarks made by the Base Commander or the findings of the Joint Board of Inquiry. This fact is the admission made by the appellants in the memo of the petition that the findings of the Joint Board of Inquiry were not unanimous as Mr. Sabir Ali Khan, D.S.P., Liaquatabad Division, Karachi, had dissented from the findings of the three other members from the Air Force. If an officer of the rank of D.S.P. could disagree with his fellow members who were officers of the see any justification to told that the Superintendent of Police who was a higher Officer would be in any way influenced by what the Base Commander had stated. In any case, as pointed above, the Base Commander's remarks were not construed as an order to be carried out in letter, irrespective of the result of an independent inquiry. No such conclusion can be inferred from these circumstances, in view of the fact that the disciplinary proceedings were taken in compliance with the orders of the Inspector‑General of Police, Sind.

8. In the light of the above discussion, we have come to the conclusion that the appellant's case was not prejudiced by any bias or dictation on account of the remarks of the air force Base Commander. The under, therefore, does not suffer from any legal infirmity and we hold accordingly. In the result these appeals are dismissed with no order as to costs.

I agree that these appeals be dismissed but I do so with some reluctance.

10. The relevant facts have been recounted by my learned brother 2affar Hussain Mirza, J. In his judgment which in essence are that Allah Ditta (appellant in C.A. No. 29‑K of 1984), a Police Constable and Raja Bostan Khan (appellant in C.A. No. 30‑K of 1984), an Assistant Sub‑Inspector in the Police, alongwith another Constable Pista Khan and some others were on patrol duty on the Yousuf Plaza Water Pump beat in Block No. 14/16, Federal "B" Area, Karachi, between 2200 hours to 0200 hours on 11th August, 1980, two days before the Eid‑ul- Fitr. On account of Eid shopping, there was a heavy rush around the shops of the glass bangle dealers, mainly of women. The police officers on duty were trying to control the big crowd, not necessarily in an altogether gentle manner. Unfortunately for them, Pilot Officer Yousuf, who was in plain clothes, had also turned up there and was beaten up and was accorded the same treatment as other members of the crowd despite his remonstrations and disclosure of his rank and identity. In fact the police officials felt insulted by his protests and even tried to drag him to the Police Station. Meanwhile, Flight‑Lieutenant Shahid reached the spot on his motorcycle and gave a lift to Pilot Officer Yousuf and both went to Jauharabad Police Station to lodge a report against the police party. When they reached the Police Station, they found Raja Bostan Khan, Assistant Sub‑Inspector, Constable Allah Ditta and Constable Pista Khan were already there. At the police station, Flight‑Lieutenant Shahid was also insulted and slapped on the face.

11. The Air Force authorities took a very serious view of the treatment meted out by the police officials to their officers. Accordingly, on the order of the Air Commodore, Mr. Muhammad Saeed S.I. (H), Base Commander P.A. F. Base, Shahrah‑e‑Fdisal, a Joint Board of Enquiry was constituted, comprising two P.A.F. Officers and the Deputy Superintendent of Police, Sabir Ali Khan, to enquire into the incident and to apportion blame and to recommend measures to avoid recurrence of such incidents in the future.

12. The Joint Board of Enquiry was not, however, unanimous in their findings as Mr. Sabir Ali Khan, Deputy Superintendent of Police was of the opinion that the police officials were not to blame, while the other two members belonging to the P.A.F. opined otherwise. However, the Base Commander agreed with the findings of the two Air Force Members and in his remarks recorded on 14‑1‑1980 observed that "severe disciplinary action should be taken"

by the Police Department against

A.S.I. Bostan Khan and other officials of the Police for using criminal force and abusive language against the P.A.F. Officers.

13. Mr. Munawar Khan, Superintendent of Police who thereafter, conducted the departmental enquiry found the appellants guilty of the charges levelled against them and ordered their dismissal from service vide his order dated 14‑1‑1981. The appellants' appeal to the Deputy Inspector‑General of Police was dismissed. However, on revision, the Inspector‑General of Police modified the order and converted it into an order of compulsory retirement. The appellants still feeling that the punishment accorded to them was too severe filed separate appeals before the Sind Service Tribunal, but the same were dismissed by the impugned order passed on 27‑2‑1983.

14. In my opinion there is some force in the argument of the learned counsel for the appellants that the learned Service Tribunal had erred in not giving any weight to the submission of the appellants that on account of the observations made by the Base Commander. P.A.F. (Air Commodore Mr. Muhammad Saeed) to take severe disciplinary action against the appellants the departmental authorities were left with no discretion to exercise their own independent judgment. The Base Commander in his observations had not only agreed with the findings of the two members of the P.A.F. on the Joint Board of Enquiry and expressly disagreed with those submitted by the member of the police force but had gone on to observe that "severe disciplinary action (underlining is mine) should be taken against the appellants". In contrast, in the same note, in respect of another polite officer (Head Constable Akram) he had merely observed that disciplinary action be taken against him. After such a clear indication it was hardly realistic o expect that the police authorities would, during the period in question (January, 1980). against venture to differ with the dicta of the Air Force authorities. However, regarding the quantum of sentence the Service Tribunal observed:‑

"These police officers had no licence even to beat the members of the public who had committed no fault besides passing through the Bazar. Such examples of high handedness and misbehaviour by petty officials give a bad name to the department and ought to be put down with strong hand. We, therefore, see no reason to interfere with the decision of the Additional I.G. who had already considered the case of the appellants and reduced their punishment from dismissal to compulsory retirement."

But the learned Tribunal overlooked that the two young Air Force Officers who were maltreated too had no business to hover around the bangle‑shops where swarming crowds of women were shopping for Eid. To control the situation would have tested the nerves of the most cool and balanced heads and to expect lowly police officials to behave with complete equanimity, in such a situation might really be asking too much.

15. Since, however, the question whether the extreme penalty of compulsory retirement should have been imposed or it should have been reduced to a lesser penalty is a matter falling within the discretion of the Service Tribunal and is not a matter wherein this Court would normally interfere, in exercise of its jurisdiction under Article 212 of the Constitution, I would refrain from interfering therewith. However, I do feel that the Police Department can still consider whether, in all the circumstances the punishment of compulsory retirement imposed on the appellants was not too severe and may also consider the propriety of modifying the same to a lesser penalty.

16. With these observations I agree with the ultimate conclusion arrived at by my learned brother Zaffar Hussain Mirza, J. that these appeals must be dismissed.

M.Y.H. Appeals dismissed.

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