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Case No. 124/92 of 1985, decided on 14th October, 1985.

‑‑‑Disciplinary action based upon criminal offence‑‑Accused (appellant) facing criminal trial and disciplinary action simultaneously and dismissed from service by following show‑cause notice procedure‑‑Criminal Court acquitting accused under S. 249‑A of Criminal Procedure Code, 1898 for, want of evidence‑‑Departmental appellate authority treating acquittal not as honourable dismissing appeal‑‑Impugned dismissal order, in circumstances, set aside by Service Tribunal re‑instating appellant with direction to treat intervening period as leave extra ordinary without pay‑‑Punjab Service Tribunals Act (IX of 1974), S. 4.

Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore 1985 S C M R 1062 rel.

Masud Ahmad Riaz for Appellant.

Haroon‑ur‑Rashid Cheema, District Attorney for Respondents.

Abdul Razzaq, ex‑Constable No. 2466 of Faisalabad District has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Superintendent of Police, Faisalabad and D.I.‑G. Police, Faisalabad Range, Faisalabad as respondents.

2. By virtue of this appeal, the appellant has prayed that the impugned orders dated 8‑5‑1984 and 9‑2‑1985 be set aside. It has also been prayed that the appellant be re‑instated in service with full back benefits of pay, allowances, etc.

3. Brief facts of the case are that on 7‑3‑1984 appellant while posted as Constable at P.S. Gulberg, Faisalabad went to Chak Jhumra and alongwith his co‑accused Javed Iqbal also a constable, deprived Tariq Javed a student of his pair of new shoes and Rs.1,050 in cash. Case F.I.R. No.88 dated 7‑3‑1984 under section 382, P.P.C. was registered against them at P.S. Chak Jhumra on the report of Tariq Javed, The appellant and his co‑accused secured their pre‑arrest bail from Session Court, which was rejected on 21‑3‑1984 and they were arrested. After completion of investigation they were challaned in the case. The appellant and his co‑accused were tried by the Ilaqa Magistrate and acquitted on 25‑9‑1984 under section 249‑A, Cr.P.C. However, departmental proceeding under Punjab Police (E & D) Rules, 1975 by ,ay of General Police Proceedings in which regular enquiry was not considered necessary were instituted against the appellant on 21‑4‑1984. He was served with a show‑cause notice. His explanation written as well as oral was considered by Superintendent of Police, Faisalabad. His explanation was not found satisfactory and the appellant was dismissed from service by Superintendent of Police, Faisalabad vide his order dated 8‑5‑1984. The appellant made an appeal to the Deputy Inspector- General of Police, Faisalabad Range, Faisalabad and the appeal was rejected vide his order dated 9‑2‑1985 on the plea that no doubt the appellant has been acquitted but it did not amount to his honourable acquittal. Hence this appeal.

4. I have heard the parties i.e. Mr. Masud Ahmad Riaz, Advocate for the appellant and Mr. Haroon‑ur‑Rashid Cheema, District Attorney assisted by the representative of respondents.

5. The 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. No enquiry was held as required under the Efficiency and Discipline Rules in such cases. The learned counsel for the appellant has submitted that the appellant has been dismissed on the basis of the case F.I.R. No.88 dated 7‑3‑1984 under section 382, P.P.C registered against the appellant and co‑accused. They were also arrested in the aforesaid case. The learned counsel for the appellant has referred to the order dated 25‑9‑1984 of the learned Magistrate 1st Class, Faisalabad and has submitted that the said Court has acquitted the appellant of the charge on the basis of which the appellant was punished and dismissed from service. The learned counsel for the appellant has also referred to the order dated 9‑2‑1985 of Deputy Inspector‑General of Police, Faisalabad Range, Faisalabad and has submitted that on receipt of verdict of the learned trial Court, the Deputy Inspector‑General of Police, Faisalabad vide his order dated 9‑2‑1985 rejected the appeal of the appellant on the basis that acquittal was not honourable. The appellant's counsel has pointed that keeping in view the above facts it is clear that the appellant has beer, dismissed from service only on account of involvement in case F.I.R. No.88 dated 7‑3‑1984. The learned counsel for the appellant has relied on the judgment of the Supreme Court of Pakistan in case of Muhammad Sardar Khan v. Senior Member (Establishment) Board of Revenue, Punjab, Lahore, reported as 1985 S C M R 1062. The ratio of the above judgment is that in view of the appellant's acquittal, appellant was entitled for re‑instatement. The respondent No.2 wrongly held against the settled law that acquittal was not honourable and unlawfully rejected the appeal of the appellant.

6. On the other hand the learned District Attorney has contended that the appellant's acquittal was not a honourable acquittal and as such the decision of the Deputy Inspector‑General of Police, Faisalabad Range, Faisalabad not to re‑instate the appellant on this fact cannot be taken exception to. He has relied on the detailed order of the Deputy Inspector‑General of Police, Faisalabad Range, Faisalabad dated 9‑2‑1985 and has reiterated the above position.

7. I have given my anxious thought to the arguments of the parties and have also perused the record of this case very carefully. I have examined the impugned order of the Superintendent of Police, Faisalabad dated 8-5-1984 which reads as follows‑‑

"Since the Constable was formerly arrested by the local police and the case is still investigation in which his innocence has not yet been established, therefore, at this stage this affidavit has no legal/defensive value. The Constable's explanation is not found to be satisfactory. He is a criminal in police uniform anti is not worth retention in the police force. He is, therefore, dismissed from service w.e.f. 5‑5‑1984 forenoon. The period of his suspension, will be treated as such. Order announced."

The para. 4 of the impugned order dated 9‑2‑1985 of Deputy Inspector -General of Police, Faisalabad Range, Faisalabad is also reproduced as follows: ‑

"In this case the trying Court vide its judgment dated 25‑9‑1984 has acquitted the appellant under section 249‑A, Cr.P.C. A perusal of the judgment would show that it does not amount to an honourable acquittal. The appellant has a criminal tendency and possesses a chequered service record having no less than 6 punishments 1o his discredit. He, therefore, cannot at all be considered fit to be a member of the Police Force. The appeal is rejected."

The above impugned orders show that the appellant had been held guilty only of criminal offence that he was involved in case F.I.R.No.88 dated 7‑3‑1984, registered against him and was arrested for the aforesaid case. I have also perused the judgment dated 25‑9‑1984 of Mr. Mukhtar Ali Mian, Magistrate 1st Class, Faisalabad through which the appellant has been acquitted. The last para of the said judgment is reproduced below: ‑

"An application for the acquittal of the accused was given under section 249‑A, Cr.P.C. Due notice was given to the P.S.I., and arguments advanced by both the sides were heard. In this case the only documents which connects the accused with the offence is the recovery memo. vide which the Khusa is alleged to have been recovered from Javed Iqbal accused. This memo is attested by Ahmad Khan and Liaqat Ali. The former has been declared hostile and the evidence of the later, even if he supports the prosecution story will not be of any avail to the prosecution. No evidence has been led in support of the remaining part of the prosecution story, which fact does not stand proved. As a matter of fact this is a case of no evidence against the accused. The prosecution have failed to establish its case. The accuses are, therefore acquitted under section 249‑A, Cr.P.C. The case property be returned to the owner."

However, this judgment has been interpreted by the respondent No.2 that it was not an honourable acquittal and as such 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 the 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 Court's 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 period of suspension, was inapt and irrelevant. For the foregoing reasons, this appeal is allowed with costs and the impugned order of appellant's 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, I am 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. 5‑5‑1984. However, the period for which the appellant remained out of service shall be treated as extra ordinary leave without pay.

There are no orders as to costs.

A. E.

Appeal accepted.

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