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Case No.25/16 of 1985, decided on 31^st October, 1985.

‑‑‑S. 4‑‑Civil services‑‑Compulsory retirement‑‑Appeal of co‑accused accepted and order for re‑instatement made in separate appeal filed by such co‑accused‑‑First Information Report on basis of which appellant and co‑accused were compulsorily retired having been declared by police investigation‑‑Punishment on basis of such F.I.R. held, could not be sustained‑‑Judgment about re‑instatement of co‑accused previously delivered by Tribunal would be applicable in case of present appellant.

Masud Ahmad Riaz for Appellant.

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

.---‑‑Abdul Majid, ex‑A.S.I. No.696 SKT of Sialkot District has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Superintendent of Police, Sialkot, Deputy Inspector‑General of Police, Gujranwala Range, Gujranwala and the Inspector‑General of Police, Punjab, Lahore as respondents.

2. By virtue of this appeal the appellant has prayed that the impugned orders, dated 18‑12‑1982 and final order, dated 6‑1‑1985 be set aside and he be re‑instated in service, w.e.f. 16‑12‑1982 with full back benefits, etc.

3. Brief facts of the case are that appellant alongwith S.I. Nishan All and A.S.I. Jan Masih of P.S. City Sialkot raided the house of one Muhammad Amin on the night between 26/27‑10‑1982 and brought Muhammad Amin Khalid and Mst. Shama with a coloured T.V. and a V.C.R. Mr. Muhammad Amin, and Khalid were made to sit in the room of S . I. Nishan Ali where they had enjoyed V.C.R./T. V while Mst. Shama was confined in a separate room. The appellant and other co‑accused committed rape on Mst. Shama. A show‑cause notice, dated 11‑12‑1982 was served upon the appellant in which a number of allegations were levelled against the appellant. The appellant submitted his reply to the said show‑cause notice but the same was considered unsatisfactory and the competent authority i.e. S.P., Sialkot, vide his order, dated 18‑12‑1982 dismissed him from service w.e.f. 16‑12‑1982. He filed an appeal before the next higher authority viz. Deputy Inspector‑General of Police, Gujranwala Range, Gujranwala who after hearing the appellant converted the punishment of dismissal into compulsory retirement, vide order, dated 19‑5‑1983. The appellant filed a revision petition before the Inspector‑General of Police, Punjab, Lahore which was rejected vide order, dated 6‑1‑1985. Hence this appeal.

4. We have heard the learned counsel for the appellant as well the learned District Attorney assisted by the representative of the respondents on behalf of the respondents.

5. It has been argued by the learned counsel for the appellant that, vide judgment of this Tribunal, in Case No. 604/544 of 1983 of John Masih, ex‑A.S.I, decided on 22‑5‑1984 v. Superintendent of Police, Sialkot and two others, it has been mentioned that John Masih was co‑accused with the appellant. The appeal of John Masih was accepted by this Tribunal and the impugned orders were set aside. As the appellant was involved in the same case for that reason, the appellant is entitled to the benefit of the said judgment delivered by this Tribunal in case of John Masih who was co‑accused. He has submitted that there is no distinguishable feature in the case of the appellant and as such the respondents were bound to comply the said judgment in case of the appellant as well which had not been done so and as such grave injustice and discrimination has been met out to the appellant. On the merits it has been submitted by the learned counsel for the appellant that the case F.I.R. No.850 was struck down as. It has been further submitted by the appellant's counsel that this fact of cancellation of the case in the term of" has already been interpreted by this Tribunal in para. 9 of the aforesaid judgment.

6. On the other hand the learned District Attorney has, however, relied on the para-wise comments submitted by the respondents but on the same time could not successfully rebut the arguments so advanced by the learned counsel for the appellant and has also failed to distinguish the appellant's case from the case of John Masih co‑accused in whose favour the judgment has already been delivered by this Tribunal on 22‑5‑1984. He has further admitted that the appellant was involved in the same case F.I.R. No. 850 and not any other case.

7. We have given our anxious thought to the arguments of the parties and have perused the above judgment of this Tribunal. We are of the considered opinion that the case of the appellant is at all fours with that of John Masih co‑accused. The relevant portion of the judgment in Case No. 604/544 of 1983 anounced on 22‑5‑1984, in case of John Masih v. Superintendent of Police, Sialkot and 2 others is reproduced below:‑

9. "What we find from the said report is that it has been categorically held in the same that neither the Police Officers of the said Police Station nor the respectable Members of Public came forward to support the incident. It has also been positively narrated that the overall effects of all the statements and the evidence recorded in the said case, was that no such incident has ever taken place for which F.I.R. was registered on the strength of information by the Inspector Police at the said Police Station. We need not elaborate on the meanings of word because the translation of the same in English or in any other language is so evident that it does not require any elaboration means that the incident has never occurred at all There were two phrases available with the Police Department whip making investigations on such like cases and those are. But in the present case the D.S. P. who was a gazetted officer has not used any such phrase 'and we cannot presume that he was not aware of the same. By adopting term he has absolutely made his mind clear that he was fully satisfied that the appellant was innocent and anything attributed to him about the incident was nothing but a falsehood. This report has been forwarded under the signatures of Inspector Police but the basis are of the result of the investigation made by the D.S.P. which was routed through S P. and ultimately was concluded by Ilaqa Magistrate. In these circumstances we have no alternative but to hold that the gravamen of the charges against the appellant fall to the ground, when it is established by the Police Agency itself that such like incident never happened. This being so, we do not find any justification in the orders so made against him by the S.P., D. I.‑G. Police and I.‑G. Police. We are confident that if this most important piece of documents would have been placed before them, they would have come to the same conclusion at which we are arriving today that the appellant cannot be punished for an incident which actually never happened. Since the basis of the appellant's punishment is registration of F.I.R No.850 against the appellant which case was subsequently struck down hence, the punishment cannot be sustained against him, in view of our ealrier judgment mentioned above.

8. The upshot of the above analysis of the case is, that the following decision as given in case of John Masih, co‑accused, in the last para. of our above judgment shall be applicable in the case of appellant as well: ‑

"The result is we accept the appeal, set 'aside the impugned orders and re‑instate the appellant with all back benefits." There is no order as to costs.

A.A. Appeal accepted

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