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Case No.95/1257 of 1985, decided on 15th September, 1985.

‑‑‑ Disciplinary action vis‑a‑vis criminal proceedings‑‑Acquittal by criminal Court‑‑Effect on departmental proceedings‑‑Head Constable of Police involved in criminal case for alleged exchange of fire‑arms in his custody in Malkhana‑‑Departmental proceedings initiated on basis of criminal case registered‑‑Show‑cause notice served‑‑Reply not considered satisfactory and penalty of dismissal from service imposed‑‑Criminal Court acquitting accused for lack of evidence in support of charge‑ Departmental appeal rejected on plea that acquittal by criminal Court appeared to have been secured by winning over prosecution witness hence it was not honourable acquittal‑‑Concept of honourable acquittal, in circumstances, held, imported unjustifiably‑‑Service Tribunal accepting appeal, setting aside impugned penalty of dismissal order and awarding re‑instatement with directions to treat intervening period as leave extraordinary without pay‑‑Punjab Service Tribunals Act (1X of 1974), S.4.

Muhammad Sardar Khan v. Senior Member, Board of Revenue 1985 S C M R 1062 rel.

Masud Ahmed Riaz for Appellant.

A.G. Humayun, District Attorney for Respondents.

‑Lal Khan, ex‑Head Constable No.716, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Superintendent of Police, Sahiwal, and D.I.G., Police, Multan Range, Multan, as respondents.

2. By virtue of this appeal the appellant has prayed that the impugned orders, dated 9‑7‑1980 and 27‑1‑1985, be set aside and he may be re‑instated in service, with effect from 9‑7‑1980, with full benefits of pay and allowances.

3. Brief facts of the case are that the appellant was served with a show‑cause notice, dated 2‑7‑1980, by S.P. Sahiwal, on the following charge:‑

"You Head Constable Lal Khan No. 716 while posted as Moharrir Malkhana Seder Sahiwal during the year 1980 committed gross misconduct inasmuch as that you in connivance with your Naib Muharrir lqbal Masih used to exchange the guns and revolvers with ulterior motives from public men which were entrusted to you as case property for safe custody in the Malkhana. This fact came to light when case F.I.R. No. 17, dated 4‑2‑1980 under section 13/20/65 of the Arms Ordinance was registered at Police Station Malka Hans and Sardara accused disclosed this fact to the local police, This practice which you have been entertaining amounts to dereliction of duty of extreme character which further amounted to misconduct as defined in Punjab Police (E&D) Rules, 1975."

The appellant submitted reply to the said show‑cause notice in which he denied the allegation. The authority was not convinced with the reply of the appellant and ultimately dismissed him from service by his order, dated 9‑7‑1980. The appellant went in appeal before the D.I.G. Police, Multan Range on 30‑8‑1980, which was rejected by him by order, dated 27‑1‑1985, on the ground that acquittal of the appellant also merits little consideration as the acquittal appears to have been secured by winning over the prosecution witnesses. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that the appellant has been dismissed as a result of show‑cause notice served upon him under the provisions of Punjab Police (E&D) Rules, 1975, and no enquiry was held as required under the rules in this case. Learned counsel for the appellant has referred to the impugned order, dated 9‑7‑1980 so passed by the S.P. Sahiwal and has submitted that the appellant was held guilty of offence as a case F.I.R. No. 17, dated 4‑2‑1980, under section 13/20/65 of the Arms Ordinance was registered against him at P.S. Malka Hans. While imposing penalty upon the appellant learned Superintendent of Police, Sahiwal remarked that the appellant is being sent to face the trial of the case against him and the version of Sardara against him cannot be easily overlooked. Furthermore the appellant has been changing the guns and revolvers with public men due to ulterior motive in connivance with his junior Constable label Masih, learned counsel for the appellant has further submitted that the impugned order, dated 27‑1‑1985 of the D.I.G. Police, Multan Range, is also clear that the appeal was rejected on the ground that the acquittal was not honourable and was secured by winning over the prosecution witnesses. Learned counsel for the appellant has relied on the judgment of 31‑5‑1984, given by Mr. Nadeem Ashraf, Assistant Commissioner/ M. I. C., Pakpattan Sharif, wherein the charge so levelled against the appellant by the S.P., Sahiwal, and upheld by the D.I,G. Police was judiciously examined and it was not proved for want of evidence and thus the appellant was acquitted. Learned counsel for the appellant has further submitted that even if this judgment was not considered as honourable acquittal, even then the appellant was requited to be re‑instated in service keeping in view the latest verdict of the Supreme Court of Pakistan given in case of Muhammad Sardar Khan Senior Member, Board of Revenue reported as 1985 S C M R 1062. The ratio of the said judgment is that in view of acquittal of the appellant he was entitled for re‑instatement. Respondent No. 2 has wrongly held against the settled law that the acquittal was not honourable and rejected the appeal, of the appellant.

6. On the other hand learned District Attorney has contended teat the acquittal of the appellant merits little consideration as held by the D.I.‑G. Police, Multan Range, Multan, as the acquittal appears to have been secured by winning over prosecution witnesses. As such the decision of D.I.‑G. Police, Multan Range, Multan in not re‑instating the appellant was fully justified.

7. We have given our anxious thought to the arguments advanced by the parties and have perused the record of the case minutely have perused the show‑cause notice which shows that the appellant was proceeded on the basis of his involvement in a case F.I.R. No. 17 under section 13/20/65 of Arms Ordinance, registered at P.S. Malka Hans. We have perused the impugned order of S.P., Sahiwal, dated 9‑7‑1980, which shows that the appellant was proceeded on the basis of his involvement in case F.I.R. No. 17 under section 13/20/65, Arms Ordinance, registered at Malka Hans. We have further studied this impugned order of S. P., Sahiwal, dated 9‑7‑1980, which indicates that the appellant was dismissed from service on the ground that he was being sent to face the trial of the case against him and the version Of Sardara as mentioned in the F.I.R. cannot be overlooked. We have also seen the order of D.I.‑G., Multan Range, dated 27‑1‑1985, and para 4 of the same is reproduced below:‑

"The acquittal of the appellant also merits little consideration as the acquittal appears to have been secured by winning over the prosecution witnesses."

We have perused the judgment, dated 31‑5‑1984, given by Mr. Nadeem Sharif, Assistant Commissioner/ M. I. C., Pakpattan Sharif and relevant paras of the said judgment are as under:‑

"The prosecution produced only four witnesses namely, Muhammad Sardar P.W. 1, Munir Ahmad P.W.2, Abdul Shakoor P.W. 3 and Shafqat Ali P.W. 4. All these prosecution witnesses did not support the prosecution version hence they were declared hostile by the learned P.I. and were cross‑examined but nothing material came on the record to connect the accused persons with the offence /recovery of illicit arms etc. In view of these circumstances, I find no case against any of the accused and acquit all of them under section 249‑A, Cr.P.C. The recovered fire‑arms are forfeited in favour of the State."

However, this judgment has been interpreted by respondent No. 2 that the acquittal appears to have been secured by winning over the prosecution witnesses and as such taking it not an honourable acquittal the appeal of the appellant was rejected.

8. Nevertheless, the law point has been settled by the latest judgment of their Lordship of the Supreme Court of Pakistan in Civil Appeal No. 536 of 1980 Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore, decided on 20‑3‑1985 reported, as 1985 S C M R 1062. Their Lordships have clinched the law point by their following dictum:‑

"We are, therefore, of the view that the concept of honourable acquittal was unjustifiably imported by the learned Tribunal in determining the question of the validity of the appellant's removal from service. The reliance on this Courts judgment in Government of West Pakistan v. Mian Muhammad Hayat P L D 1976 S C 202, in so far as it related only to the question of pay during the period of suspension, was inapt and irrelevant. For the foregoing reasons, this appeal is allowed with costs and the impugned order of appellants' removal from service, dated 19‑4‑1977, shall be set aside, with the result that the appellant shall be re‑instated in service, with effect from the date the said order took effect."

Respectfully following the ratio of the above judgment, we are of the considered opinion that on the particular facts of this case, the above quoted dictum of their Lordships is fully applicable in the present case as well.

9. The upshot of the above discussion 'of the case is that the appeal is accepted. The impugned orders are set aside and the appellant is re‑instated in service from the date of his dismissal i.e. 9‑7‑1980. However, the appellant had already reached the age of superannuation on 10‑1‑1981 and he will be entitled to the benefit from the date of dismissal to the date of superannuation. The period from 9‑7‑1980 to 10‑1‑1981 for which he remained out of service shall be treated as extraordinary leave without pay. There will be no order as to costs.

A.E.

Appeal accepted

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