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Case No. 691/1205 of 1984, decided on 23rd October, 1985.

---R. 6(3)--Punjab Service Tribunals Act (IX of 1974), S. 4--Criminal case forming basis of departmental action--Procedure--Police official (appellant) challaned under section 302/34, Penal Code and on that account served show-cause notice and dismissed from service after considering explanation as un-satisfactory--Record was indicative that criminal case found false and filed by competent Court as un-traced on basis of evidence of complainant and other witnesses of F.I.R.- Departmental authorities, in circumstances, held, not within their legal right to brush-aside such evidence without holding regular enquiry and to dismiss appellant on basis of false case--Tribunal accepting appeal and setting aside impugned dismissal order treating intervening period as leave of the kind due.

1986 P L C (C.S.) 414; 1983 P L C (C.S.) 243; 1980 P L C (C.S.) 213; N L R 1980 T D 208 and N L R 1980 T D 250 ref.

Muhammad Sardar Khan's case 1985 S C M R 1062 rel.

Faqir Muhammad Khokhar for Appellant.

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

--Muhammad Siddique Alvi, Ex-A.S.I. No. 238, Sargodha has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Government of the Punjab. The Superintendent of Police, Sargodha, the D.I.-G. Police, Sargodha Range, Sargodha, and the I.G. Police, Punjab, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the impugned order, dated 20-10-1984, of D.I.-G. Police, Sargodha Range, Sargodha confirming the order of dismissal of the appellant, passed by the Superintendent of Police, Sargodha, dated 9-5-1982, be set aside and he be reinstated in service with back benefits.

3. Brief facts of the case are that the appellant while he was posted at P.S. Sargodha, he was involved in case F.I.R. No. 296, dated 31-8-1981, under section 302/34, P.P.C. registered with Saddar Police Station, Sargodha. For the very fact that he was so challaned in murder case, the S.P. Sargodha, found this as grave misconduct on the part of the appellant. He served the appellant with show-cause notice under the Punjab Police (E & D) Rules, 1975. The appellant submitted reply to said show-cause notice in which he denied all the charges so levelled against him, and submitted that he had been falsely involved in this case. His explanation was found unsatisfactory and the plea of innocence taken by him was not accepted and he was dismissed from service w.e.f. 9-5-1982. The appellant filed appeal before the learned D.I.-G. Police, Sargodha, in which he submitted that in fact Muhammad Feroze the complainant of case F.I.R. No. 296 of 1981 under section 302/34, P.P.C. P. S. Saddar Sargodha, in his own statement, dated 28-9-1981, under section 164, Cr. P.C. confessed that he had submitted the application about murder of his brother Muhammad Khan Mamoon on the basis of doubt created by public. He exonerated the appellant. He also brought to the notice of the learned D.I.-G. Police that all the prosecution witnesses did not support the F.I.R. and also produced photostat copies of statements made by all of them under section 164, Cr. P.C. The appellant has relied on the letter of D.M.L.A., Sargodha No. DMLA/9/DAAG, dated 10-12-1981, addressed to the S.P. Sargodha, in which it was ordered to register a case against Muhammad Feroze son of Muhammad Hayat, as he lodged a false F.I.R. against the appellant. He rebutted all the charges and submitted that the case was declared un-traced and he may, be reinstated in service. The case was heard by the D.I.-G. Police Sargodha on 20-10-1984, who did not accept the evidence so produced by the appellant and observed-that he had been once challaned, therefore, he would be considered unfit for Police service. 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 entire record of this case carefully with their assistance.

5. Learned counsel for the appellant has submitted that initial order has been passed ex-pate without hearing the appellant and thus the same was void ab-initio. According to the learned counsel for the appellant that the order of D.I.-G. Police, as being supera-structure over the said order was equally wrong in law. It has been further submitted that after receipt of the reply of the show-cause notice it was, incumbent upon the S.P. to appoint Enquiry Officer, hear the appellant and provide him chance to lead evidence in his defence, therefore, the appellant had been condemned unheard and the maxim of audi alteram partem fully applicable in his case. He has relied on a number of cases, wherein it has been held that once the appellant has been exonerated judicially or otherwise, he was not liable for dismissal from service. For this he has relied on.-

< [if supportLists]>(1) 1986 P L C (C.S.) 414.

(2)1983 P L C (C. S.) 243

(3) 1980 P L C (C.S.) 213

(4) N L R 1980 T D 208

(5) N L R 1980 T D 250

It has been submitted that as the appellant was discharged by the Court, may be on technical or factual reasons; the discharge was competent and should have been honoured.

6. On the other hand learned District Attorney has opposed the plea of the appellant and has adopted the comments filed by S.P. Sargodha. The main stay of the argument of the learned District Attorney that as the case was filed technically due to compromise and as the Investigating Officer did not exonerate him, therefore, the same could not be of legal effect in his favour. He has supported the authority of the S.P. that he could proceed against the appellant without holding a regular enquiry and he was competent to do so.

7. We have given our anxious thought to the arguments advanced by the parties and find that it is established fact on record that the appellant was proceeded under section 302/34, P.P.C. and was dismissed on this account by the S.P. Sargodha. It is also a fact fully made out from the record of this case that the complainant himself exonerated the appellant and all the witnesses in their statements under section 164, Cr.P.C. did not support the F.I.R. We have also satisfied ourselves that D.M.L.A. Sargodha, vide his letter, dated 10-12-1981, lodged an F.I.R. No. 445 under M.L.R. 33, against the complainant for getting a false case registered against the appellant and also the witnesses who had supported the complainant in his false stand. We have verified that the case against the appellant was later on, filed as un-traced under the order of Ilaqa Magistrate. In these circumstances we are under obligation to follow the verdict of their lordships of the Supreme Court of Pakistan delivered in case of Muhammad Sardar Khan, reported as 1985 S C M R 1062, and reproduced the relevant and operative paragraph as under:

"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 reinstated in service with effect from the date the said order took effect."

This being the situation the judgment of the Supreme Court of Pakistan is fully attracted to the case of the appellant, who has been completely exonerated by the complainant as well as P.Ws. and there is material. on record in the form of F.I.R. lodged by D.M.L.A., Sargodha to show that the appellant has been harrassed and involved in a case, which was ultimately proved to be without any foundation. This being so we do not find the learned S.P. or D.I.-G., Police, Sargodha Range within their legal right to brush aside this evidence, without holding regular enquiry and to dismiss the appellant on the basis of the false case which had been filed un traced under the orders of the) Court of competent jurisdiction.

8. In view of the above, we are of the considered opinion that the appeal of the appellant is liable to succeed, therefore, we accept the appeal, set aside the impugned orders and reinstate the appellant in service from the date he was so dismissed. However, the period of his remaining out of service, would be treated as leave of the kind due. There will be no order as to costs.

1. E.

Appeal accepted.

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