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Case No. 965/1189 of 1984, decided on 12th June, 1385.
‑‑‑R. 14‑‑Appeal‑‑Reversion from officiating rank to substantive rank made as punishment for acts of omission and commission‑‑Subject to appeal‑‑Appellate authority bound to decide appeal on merits‑‑View that reversion of police official from officiating rank ordered pursuant to show‑cause notice does not amount to punishment‑‑Repelled.
A M. Ibrahim v. Government of Pakistan P L D 1972 S C 332 and Dr. Safdar Mahmud's case P L D 1983 S C 100 rel.
Riaz Anwar for Appellant.
Masood Ahmad Ghuman, Deputy District Attorney for Respondents.
. ‑‑Mohammad Hussain, A.S.I., C.I.A. Staff, Gujrat, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Superintendent of Police, Gujrat and the Deputy Inspector‑General of Police, Gujranwala, as respondents.
2. By virtue of this appeal he has prayed that appeal be accepted and impugned orders be set aside and appellant be re‑instated as officiating Sub‑Inspector with all back benefits.
3. Brief facts of the case are that the appellant had joined the Police Department as a Foot Constable on 3‑8‑1951. He was promoted as Head Constable in 1962 and as A.S.I. in 1972. He was further promoted as officiating Sub‑Inspector in 1979. While the appellant was posted as S.H.O. /Sub‑Inspector at Police Station, Kathiala Sheikhan District Gujrat, he was served with a show‑cause notice, dated 6‑3‑1984 as under:
"While posted as S.H.O. P.S. Kathiala failed to perform your official duty in appropriate manner in that you registered a false case F.I.R. No. 184, dated 12‑8‑1983 under section 379, P.P.C. P.S. Kathiala Sheikhan in connivance with one Salhoon son of Roshan and you entrusted the investigation of this case to A.S.I. Nazir Ahmad No. 9/SKT. A.S.P./Mandi directed that the investigation should be conducted by you on true lines and not by A.S.I. as he did not agree that the investigation of the A.S.I. and a report to this effect was recorded vide Zimni No. 3, dated 14‑9‑1983. You investigated this case in perfunctory manner and submitted the challan to Court instead of submitting the case as cancelled for ulterior motive. A.S.P./Mandi held inquiry in this case and sent the case as cancelled vide Zimni No. 9, dated 15‑1‑1984. This amount to grave misconduct on your part."
Respondent No. 1 also dispensed with the inquiry and decided to proceed under Rule 6 sub‑rule (3)(i) (a) (b) of Punjab Police (E&D) Rules, 1975. The appellant submitted reply to the said show‑cause notice in which he refuted the same. However, the respondent No. 1 held the appellant guilty of the charge and awarded punishment of reversion to substantive rank of A.S.I. The appellant filed appeal against the aforesaid penalty before respondent No. 2, who dismissed the appeal by its order, dated 9‑7‑1984, with the following observations:
"Without going into the merits of the case itself, the Police Rules clearly indicate that reversion from officiating rank to the substantive rank is no punishment at all and when a person is not found fit to hold the officiating rank there is no bar of his superiors from reverting the official from his officiating rank. When no such punishment has been awarded the appeal against this reversion is uncalled for and the same is rejected."
Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned Deputy 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 respondent No. 2 has erred in law by not deciding the appeal on merits and holding the same to be incompetent. According to the learned counsel for the appellant that the punishment of reversion was awarded to the appellant on the basis of proceedings under (Efficiency and Discipline) Rules, 1975, therefore, the appeal was competent against the same order under rule 14 of the said rules and respondent No. 2 was under legal obligation to decide the same on merits. For this he has relied on different judgments of this Tribunal as well as that of Supreme Court of Pakistan.
6. With regard to the merits of the case it has been submitted that the allegations against the appellant that he had registered a false case F.I.R. No. 184, dated 12‑8‑1983, was not sustainable in law. According to the learned counsel section 154, Cr.P.C. as interpreted by the superior Court, the Police Officer is bound to register F.I.R. when the information conveyed to him by the complainant disclosing commission of cognizable offence without determining the correctness or falsehood of the said allegations. It was argued that the allegation that the appellant registered a false case, was misconceived and against the facts. It has been argued that F.I.R. No. 184, dated 12‑8‑1983 was not registered by the appellant but it was registered by A.S.I. Bootey Khan when a written application was submitted to him by Salhoon son of Roshan against five persons Mustafa son of Ali, Faiz Ahmad, Ghulam Mohammad, Khushi Mohammad and Nazir Ahmad and the case was investigated by Nazir Ahmad A.S.I., who recorded the statement of eye witnesses and effect the recovery of stolen property and recovery memo prepared by him was duly attested by the witnesses. As no defence witness was produced by the accused persons, therefore, the A. S. P. examined the case diary and directed the appellant to conduct the investigation in person. It has been pointed out that there was no direction by the A.S.P. at this stage to the appellant that he should report the cancellation of the case. He has vehemently argued that the A.S.P./Mandi Bahauddin had only directed the appellant that he should withdraw the investigation from Nazir Ahmad A.S.I. and undertake the same personally which the appellant did as indicated above. The appellant submitted the challan under section 173, Cr.P.C. to A.S.P./Mandi Bahauddin who forwarded the same for submission to the Court, which was actually done so by P.I. on 25‑10‑1983. For this he has relied on the copy of report appended as Annexure 'J'. In this manner it has been argued that the A.S.P./Mandi Bahauddin had not taken any exception to the inquiry conducted by the appellant on the basis of evidence produced before him. It was further argued that after the submission of challan to the Court the accused had asked for re investigation of the case. The A.S.P. reinvestigated the case and the accused person produced defence evidence before him. He recorded evidence of certain witnesses produced before him by the accused in his defence and it was only then that the A. S. P. came to the conclusion that the case was fit for cancellation.
7. On the other hand learned District Attorney has adopted the comments of the respondents and has submitted that the appellant has acted with ulterior motive, therefore, the punishment awarded to him was justified. With regard to the legal objection raised by the learned counsel for the appellant, learned District Attorney reiterated the stand of the Department that reversion was not a punishment.
8. We have given our anxious thought to the arguments advanced by the parties and find, this issue came before this Tribunal in Case No. 397/1852 of 1982, Ghias‑ud‑Din v. S.P., Dera Ghazi Khan and D.I.‑G. Police Multan Range, which was decided on 20‑3‑1984. In the said case the issue was struck as under:
(i) Whether a superior authority in Police hierarchy can exercise the powers of the lower authority and under what circumstances
(ii) Can a reversion be made from officiating rank to substantive rank which has been made for certain acts of omission and commission of a member of Police Force without. issuing him a show‑cause notice/charge‑sheet.
This Tribunal after taking into consideration the law lay down on this point in P L D 1972 S C 332 and P L D 1983 S C 100, in case of M. Ibrahim v. Government of Pakistan and Dr. Safdar Mahmud's case and respectively came to the conclusion that if the reversion was made in an innocent manner due to exigency of service, then of course that reversion was not a punishment. But, if the same was made due to act of omission and commission on the part of a civil servant that would certainly be an act of punishment as the case has to be decided after issuing a show‑cause notice to such a civil servant on merits. In view of the law so settled by this Tribunal on the strength of judgment of Supreme Court of Pakistan, we are of the considered opinion that the appellate order passed by the learned D.I.‑G. Police dated 9‑7‑1984, is erroneous and without any legal foundation. Learned D:I.‑G. Police was under obligation to hear and decide the appeal on merits, therefore, we would look into the merits of the case to decide whether the order of S.P. by which the appellant has been so reverted to the substantive rank A.S.I. , would be justified or not.
9. When we look into the merits of the case we find that case F.I.R. No. 184 dated 12‑8‑1983, under section 379, P.P.C. P.S. Kuthiala Sheikhan was registered by A.S.I. Bootey Khan when a written application was submitted to him by Salhoon son of Roshan against five persons Mustafa son of All, Faiz Ahmad, Ghulam Muhammad, Khushi Mohammad and Nazir Ahmad and this investigation was entrusted in Nazir Ahmad A.S.I. who recorded the statement of eye‑witnesses and effected the recovery of stolen property and recovery memo prepared by him was attested by P.Ws. Ghulam Muhammad and Roshan Din whose statements were also recorded under section 161, Cr. P. C . It is also on record that no defence witness was produced before the A.S.I. Later on A.S.P., Mandi Bahauddin directed the appellant to hold a fresh inquiry into the case, as according to his opinion, the earlier investigation by Nazir Ahmad, A.S.I. was not correct. It is further established on record that the appellant conducted a fresh inquiry, examined all the witnesses who had appeared before the said A.S.I., Nazir Ahmad and found that the allegation against the accused were well founded and he submitted the challan for the approval of the said A. S. P. It is also on record that the said A. S. P. , Mandi Bahauddin forwarded‑ the said challan without an exception which reached the' P.I. , who placed the same without his own report be ore the Court. (Underlining is ours.) We have also further certified that the said challan is still pending with the Magistrate 1st Class, a fact which has been so certified by Magistrate, 1st Class vide his report, dated 30‑1‑1985, that the said case was still under trial in his Court. We further find that the A.S.P. Mandi Bahauddin started reinvestigation of the case after the said challan was filed with the Court and came to a different opinion on the strength of certain defence evidence so produced by the persons who appeared before him. This being an established fact on record we are at a loss to understand how the competent authority came to the conclusion that the appellant acted for ulterior motives and submitted a challan which had no foundation. In accordance with section 154, Cr.P.C. a Police Officer is under obligation to register a case when a complaint is made against some accused and investigate the same on the strength of evidence so adduced in this behalf by the appellant in the case, could be said to have done something which was not warranted under the law. On the other hand their acts are fully protected by section 154, Cr.P.C. so quoted above and no exception could be taken to the same. It is further astonishing to find that the same A.S.P. has approved the case/challan and marked it to Prosecuting Inspector for sending it before the Magistrate. The Prosecuting Inspector after examining the case forwarded the case and the challan is still pending before the Court of competent jurisdiction and not cancelled as the document placed on record is Exh. C/1, dated 30‑1‑1985. We further satisfied ourselves from the record that no proof of any ulterior motive was put up before the A.S.P., Mandi Bahauddin, therefore, to hold that all this was done on ulterior motive was not justified.
10. In view of the analysis of the case both on law as well as on facts we are of the considered opinion that the view of the learned D.I.‑G., Police was erroneous and his order, dated 14‑11‑1984, is liable to be set aside. With regard to the order of competent authority, we set aside the same on merits as there is nothing on record to show that the appellant in any way contravened any provision of law or did conduct the investigation without any substance.
11. The result is, we accept the appeal, set aside the impugned orders and direct that the appellant be re‑instated as officiating Sub- Inspector with effect from the date when he was so reverted. However, with regard to the back benefits, it would be within the competence of the competent authority to determine the same. There will be no order as to costs.
A.E.
Appeal accepted.
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