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Case No. 275/171 of 1985

Punjab Civil Servants (Efficiency and Discipline) Rules, 1975

‑‑‑R. 7‑A‑‑Authorised Officer‑‑Whether can change his opinion already expressed and recommended to Authority‑ ‑Authorised Officer agreeing with findings of Enquiry Officer and recommending to Authority to exonerate accused of alleged charges‑‑Authority remanded case to Authorised Officer for examination with reference to record of enquiry‑ Authorised Officer on examination of record of enquiry coming to conclusion that accused had taken different contradictory stands in his defence, finding accused connected with alleged charge and after affording accused opportunity of personal hearing and taking into consideration Supplementary Written Statement submitted by accused imposing minor penalty of stoppage of two increments in detailed and elaborate Order‑‑Authority in circumstances, held, within his right to guide Authorised Officer and after such guidance Authorised Officer within his right to take into consideration points raised by Authority and to change his opinion.

Umar A. Bandial for Appellant.

Malik Muhammad Sadiq, Deputy District Attorney for Respondent.

.--‑‑Mr. Abdul Basit Suhail, Magistrate Section 30 has filed this appeal under section 4 of the Punjab Service Tribunals Act, in which he has impleaded the Government of Punjab through the Chief Secretary, Government of the Punjab, Lahore and the Additional Chief Secretary SGA & ID, Government of the Punjab, Lahore, as respondents.

2. By virtue of this appeal, he has prayed that the impugned orders of respondents, dated 10‑12‑1984 and 7‑4‑1985, be set aside.

3. Brief facts of the case are as under:‑---

The appellant while posted as Magistrate Section 30, Lahore was served with charge‑sheet by the Additional Chief Secretary, Government of the Punjab, Services, General Administration and Information Department, Lahore, as follows:‑

"(1) That while posted as Magistrate under section 30, Cr.P.C. Lahore, he attested a receipt, dated 23‑12‑1980, purporting that payment of fts.75,000 was made in cash before him by one Mr. Riffat Malik to one Ijaz Mirza of Church Road, Sialkot. It is revealed that neither Mr. Riffat Malik nor Mr. Ijaz ever appeared before him. A person by the name of Muhammad Nawaz had requested him to attest such a document without producing the concerned parties. He deliberately and wilfully attested the made‑up receipt and certified in his own handwriting that payment was made in cash fully knowing that no such transaction had taken place. He also fixed his official stamps on the receipt in addition to attesting the same, to oblige Muhammad Nawaz unduly.

(2) That on 25‑4‑1981, he again unduly obliged Mr. Muhammad Nawaz by attesting a document purporting that payment of Rs.1,00,000 was made in cash by one Mr. Rifat Malik, brother of Muhammad Nawaz, to one Muhammad Bashir "of London. He revealed that neither Mr. Rifat nor Mr. Muhammad Bashir of London ever appeared before him. He deliberately and wilfully certified the transaction knowing fully well that no such payment had actually been made. He fixed his official stamp on this document also in addition to attesting the same."

The appellant submitted his reply to the said charge‑sheet and Mr. Usama Maud, Deputy Secretary (I & C) II, Services, General Admn. and Information Department, Lahore, was appointed as Enquiry Officer. After a fulfledged enquiry into the matter the Enquiry Officer observed as under:‑

"Keeping in view the fact that the veracity of the two aforesaid documents has not been proved satisfactorily as required under section 63 of the Evidence Act, 1872, it thus becomes difficult to prove the charge of misconduct against Mr. Abdul Basit Suhail the accused. I am, therefore, of the view that the enquiry against Mr. Abdul Basit Suhail, Magistrate Section 30 should have been initiated only after the original documents or attested copies thereof had been provided by the F.I.A."

Learned Additional Chief Secretary, Government of the Punjab, S&GAD submitted a summary to the learned Chief Secretary, Government of the Punjab, the Authority in this case, and recommended as under:‑

"I agree with the findings of the Enquiry Officer and recommend that Mr. Abdul Basit Sohail, formerly M. I. C., Lahore, now E. A. C. Gujranwala, may be exonerated of the charge levelled against him. "

After going through the said summary and recommendations of the learned Additional Chief Secretary, Government of the Punjab, S. G. A. & I. Department the learned Chief Secretary, Punjab, observed "please examine with reference to record of enquiry." The learned Additional Chief Secretary after receiving the said observation of the learned Chief Secretary, once again perused the inquiry record and found that the following discrepancies were available in the said inquiry record against the appellant:‑

(i) "Mr. Abdul Basit Suhail, the accused officer, in his statement at flags 'G' and 'H', dated 24‑9‑1981 before the Investigating Officer stated that Muhammad Nawaz who came to see him with a reference from Brig. Aslam Hayat Qureshi (the then Secretary Services S&GAD) was accompanied by one or two other persons who were not identified by him. The accused officer further added that he personally did not verify the antecedents of the persons accompanying Muhammad Nawaz and attested the receipt for payment of Rs.75,000 (Annexure 'A') as requested by Muhammad Nawaz. However, the accused officer in his written statement, dated 30‑12‑1982 addressed to the Enquiry Officer contradicted himself and stated in para. 1 that the receipt was signed by Ijaz Mirza (the person accompanying Muhammad Nawaz) in token of having received the amount of Rs.75,000 after showing to the accused officer his British Passport. The second statement of the accused officer, dated 30‑12‑1982, seems to be an after thought and factually incorrect.

(ii) The accused officer in his revised reply to the charge‑sheet stated at para. 1(e) that Altaf Tariq, Steno only typed the receipt for Rs.75,000 on 23‑12‑1980 and that the second receipt, dated 24‑4‑1981 for Rs.1,00,000 was not typed by Altaf Tariq. However, Altaf Tariq, Steno (P.W.2) in his statement before the Enquiry Officer verified that both the receipts were typed by him in accordance with the hand written chits containing the contents mentioned in the two receipts given to him by Muhammad Nawaz in the presence of the accused officer."

He, therefore, came to the conclusion that it was not within the domain of duties/functions of the accused officer in his capacity as a Magistrate to verify/attest the same. The defence taken by the accused officer that he did it at the instance of Brig. Aslam Hayat Qureshi, Secretary (Services) is, therefore, not acceptable.

In view of the foregoing the learned Chief Secretary directed the learned Additional Chief Secretary/ Authorized Officer to reconsider the whole case and recommend/take suitable action against the accused officer.

4. The Authorised Officer/ Additional Chief Secretary summoned the appellant and apprised him of the discrepancies and lacuna which were noticed on the perusal of the enquiry record. The appellant was afforded personal hearing on 11‑11‑1984, to offer additional defence, if any. The appellant, in addition to the oral submissions, presented supplementary written statement which was placed on record. The learned Additional Chief Secretary after going through the entire case, wrote an elaborate order, dated 26‑11‑1984, and found as under:‑--

"However, since no ulterior motive except obliging Mr. Muhammad Nawaz has been established, I take a clement view and inflict upon him minor punishment of stoppage of two increments without cumulative effect."

This was a punishment so incorporated in a separate order dated 26‑11‑1984. The appellant filed a representation before the learned Chief Secretary/ Authority against the said punishment on 6‑1‑1985, in which he highlighted that as the original documents were not produced before him, therefore, the penalty so imposed upon him, was neither just nor proper and for this he relied on section 118 of Evidence Act, 1872, and section 77 of the Pakistan Penal Code, 1860. In section 118 of the Evidence Act, 1872, the production of original documents were essential and whereas under section 77 of the Pakistan Penal Code, 1860, the officer was protected for an act which was done for a good faith. However, the learned Chief Secretary, vide his detailed order, dated 28‑3‑1985, upheld the punishment awarded by the Authorised Officer, in terms of stoppage of increments for two years without cumulative effect as punishment which meet the ends of justice and rejected his representation. Hence this appeal.

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

6. Learned counsel for the appellant has submitted as under:‑

(a) That the impugned appellate order is mechanical and fails to disclose any reasons on which it is based.

(b) Both the impugned orders i.e. original and appellate are without jurisdiction and based on no evidence particularly in view of:‑

(i) the findings of the Inquiry Officer;

(ii) the failure of the prosecution to produce necessary witnesses to prove its case.

(c) The impugned orders are illegal as they uphold charges against the appellant, which were not contained in the charge‑sheet.

(d) The charges eventually levelled and allegedly proved against the appellant are the outcome of a fishing inquiry.

(e) By relying on uncertified photo copies of the allegedly attested documents, the prosecution case as well as the impugned orders are based on evidence which is inadmissible in law.

(f) The prosecution case rests on evidence (i.e. the photo copies) which is tampered with and is, therefore, completely unworthy of reliance.

(g) By the impugned orders the concerned authorities have chosen to disregard the bona fides of the appellant as disclosed by his detailed replies to the charge‑sheet.

7. On the other hand learned Deputy District Attorney has adopted the comments submitted by Mr. 2iaul Haq, Deputy Secretary S & GAI Department on behalf of the respondents, and has submitted that the Appellate Authority considered the appeal in accordance with law and decided it accordingly and it is incorrect that the impugned orders i.e. original and appellate, are without jurisdiction as these were based on evidence so produced. He has highlighted the contradictory statements made by the appellant before the Investigating Officer of F.I.A. and

that of Enquiry Officer and has submitted that the defence plea of the appellant that new grounds were not the subject‑matter of charge sheet, was devoid of merit. According to the learned Deputy District Attorney there were clear discrepancies and contradictions in his statement which very much formed part of the enquiry proceedings/ record and had to be taken note of in assessing the credibility of his defence.

8. We have given our anxious thought to the arguments advanced by the parties and find that the fact that the appellant attested two receipts solely on the ground that the persons concerned were introduced to him by Brig. Aslam Hayat Qureshi, the then Secretary (Services). Services, General Administration and Information Department, without himself verifying the credentials of such persons, stands fully proved from the record of this case. It is also established on record that in his statement, dated 24‑9‑1981 before the Investigating Officer, the appellant has stated that Muhammad Nawaz, who came to see him with reference to Brig. Aslam Hayat Qureshi, was accompanied by two other persons who were not identified by him. He further added that all the persons were present and he did not verify them and attested the receipt for payment of Rs.75,000 as requested by Muhammad Nawaz. We have verified from record that this statement was made by the appellant while he was a Corporation Magistrate, Multan, before the Investigating Officer and when cross‑examined by him, he positively accepted that he only knew Mr. Muhammad Nawaz and did not certify the identify of other two persons, although he did not know them personally. When he was further asked where the sum mentioned in the said document was received by Ijaz Mirza from Rifat Malik, he replied that in fact the amount was with Muhammad Nawaz, who gave it to the man who was accompanied by him but he did not know that man nor he tried to verify his antecedents. To a further question that who prepared the draft of the document so attested by him, he replied that this draft was already with Muhammad Nawaz and the said Muhammad Nawaz gave it to him that I should get typed by his steno. My steno typed the same and 1 signed it accordingly. His statement as well as question and answers were read over and in token of correctness which he signed both on 24‑9‑1981 at 9‑50 a. m. and 11‑30 a.m., respectively. The latter stand of the appellant that receipt was signed by Ijaz Mirza a person accompanied by Muhammad Nawaz in token of Rs.75,000 after showing him his British Passport, would certainly be an afterthought and the learned Chief Secretary is fully justified to find that it was factually incorrect. The stand of the appellant in his defence that he made two statements one on 24‑9‑1981 before the Director, F.I.A. and other, dated 30‑12‑1982 were recorded without showing him the original receipts, therefore, he relied on the sheer memory about the same, does not convince us, as his earlier statement before the Enquiry officer was duly signed by him, after the same was read over to him. He being a Magistrate, should have realised that the statement, which he was signing would implicate him and he would not be able to extricate himself from the same being a law knowing officer, with the status of section 30 Magistrate. Similarly the learned Additional Chief Secretary and the learned Chief Secretary have taken into account the stand of the appellant vis‑a‑vis the second discrepancy in which he has stated that the said receipt of Rs.1,00,000 was not typed by Altaf Tariq Steno P.W.2 and instead he stated that the presumption was that the second receipt might have been typed by somebody else than Altaf Tariq, his Steno The statement of the appellant stands contradicted by Altaf Tariq, P.W.2. We have further examined the defence of the appellant so put up by him before the learned Additional Chief Secretary and the learned Chief Secretary that he attested the said two receipts quite lawfully and in good faith, but we are afraid that this sort of plea could only be helpful to him, if the charge against him would have been that he as a Magistrate was not within his competence to attest such like documents as the same was beyond the ordinary course of his duty, but in the present case this is not the charge for which he has not been punished, but the charge is that without verifying the antecedents of the persons, who were party to the transaction before him, he just accepted the statement of Muhammad Nawaz, who was recommended by Brig. Aslam Hayat Qureshi and put the seal of his office on the said document to make it authenticated and legal. Even a man of ordinary prudence would not do so although he may be competent to do so under section 118 of the Evidence Act read with section 77 of the P.P.C., without verifying as to who was the person and who was receiving money, As it was most important duty on his part to verify whether the recipient was the same person, who was being introduced to him as such by Muhammad Nawaz. The very conduct that the persons who were said to have received the said money denied the same and averred that they never came to the office of the appellant accompanied by Muhammad Nawaz and all what was done was a fake transaction. It would be noteworthy to mention at this stage that Muhammad Nawaz was a notorious person against whom a publication was issued by Pakistani residents in London as the said Muhammad Nawaz was making averments that he had powerful friends in Pakistan by mentioning names of several higher officers and threatening people of dire consequences at their end, if they take any action against him. This publication was sent to all the Departments and officers in Pakistan as well as to all the Police Stations in British Government. We are further surprised to observe that the appellant even played in the hands of Muhammad Nawaz to an extent that he accepted the draft already available with him and just passed it to his steno to type out the same, this very act of the appellant shows that how careless he was in conducting this transaction, even though the said Muhammad Nawaz was recommended by Brig. Aslam Hayat Qureshi. We also further find that he could not produce Brig. Aslam Hayat Qureshi in his defence to show that all what was being done was done at his asking.

9. We are conscious of the fact that at one stage he was exonerated by the learned Additional Chief Secretary on the technical ground that the original receipts were not produced before him during the course of inquiry conducted by Mr. Usama Maud, but we find ourselves in agreement with the learned Chief Secretary that if at all he was conscious of this situation, he should have taken objection of the same when he made a statement before the Investigating Officer of the F.I.A. He rightly accepted the photostat copies and stated that he did attest the documents but the only plea with him was that all was done on the recommendation of Brig. Aslam Hayat Qureshi although he had no other source of satisfaction regarding the said transaction. It is also pertinent to observe that in the revised statement made by him, he had taken different stand by stating that actually what he did was at his own, under the law and the reference of Brig. Aslam Hayat Qureshi did not play that much part to influence him to attest the said transaction.

10. We do not find any exception to the re‑examination of this case by the learned Additional Chief Secretary when he was so apprised by the learned Chief Secretary as learned Chief Secretary being Authority was within his right to guide the learned Additional Chief Secretary. After such guidance the same Additional Chief Secretary wrote an elaborate judgment, in which he took into consideration the points raised by the learned Chief Secretary and was within his right to change his opinion and find the appellant guilty of misconduct but without ulterior motive and thus took a lenient view and inflicted upon him a minor punishment of stoppage of increments for two years without cumulative effect. We have carefully perused the impugned orders passed by the learned Chief Secretary and find the same as lucid as well as convincing and cannot absolve the appellant for acting in negligent manner wherein substantial amount was involved.

11. In view of the detailed analysis of the entire episode and after going through the two detailed orders of the learned Additional Chief Secretary as well as of learned Chief Secretary, we are of the considered opinion that the appellant has been rightly imposed minor penalty of stoppage of increments for two years without cumulative effect. The appeal is dismissed accordingly. There will be no order as to costs.

A. E. Appeal dismissed.

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