RIAZ HUSSAIN vs INSPECTOR-GENERAL OF POLICE, PUNJAB and 2 others
This petition challenged the judgment of the Punjab Service Tribunal, which upheld the dismissal of the petitioner, a police officer, from service due to alleged inefficiency and misconduct. The charge against the petitioner stemmed from his failure to obtain witness signatures on a recovery memo for a stolen vehicle, which the department claimed led to the discharge of an accused by a Magistrate. The core legal question was whether this procedural omission constituted gross misconduct warranting dismissal, given the Magistrate's order indicated the accused was discharged primarily for a lack of incriminating evidence rather than solely due to the defective recovery memo. The Supreme Court held that the Magistrate's order was based on a broader insufficiency of evidence, not merely the procedural defect. The Court determined that in the absence of evidence proving the omission was intentional, it constituted a bona fide mistake rather than misconduct. Consequently, the Court set aside the dismissal, ordering the petitioner's reinstatement without back benefits, establishing that procedural lapses in investigation, absent malicious intent, do not necessarily constitute actionable misconduct.
- Does a procedural defect in a recovery memo, absent evidence of intentional wrongdoing, constitute misconduct for a police officer?
- Can an investigating officer be held solely responsible for the discharge of an accused when the judicial order cites a general lack of incriminating evidence?
- Is the failure to obtain witness signatures on a recovery memo sufficient grounds for dismissal from service?
- Section 381-A, Pakistan Penal Code 1860
' MUHAMMAD NAWAZ ABBASI, J.--- This petition has been directed against the judgment, dated 27- 9-2003 passed by the Punjab Service Tribunal, whereby appeal of the petitioner against the penalty of dismissal from service imposed upon him by the Senior Superintendent of Police, Rawalpindi, was dismissed and order of the Departmental Authority was upheld.
2. The petitioner was proceeded against for the charge as under:-- "S.P./City has reported that you remained in touch with the inquiry of case F.I.R. No.103, dated 4-4- 2001 under section 381-A, P.P.C. Police Station New Town for long time. You are also sent to Gilgit from where the stolen car in question was recovered and brought to Police Station New Town. You wrote the recovery memo. Of the witnesses and did not get this recovery memo. Signed by the witnesses. Resultantly, the accused were discharged on the plea that recovery memo. Was not signed by the witnesses which shows your inefficiency and gross misconduct."
3. The petitioner in his capacity as Investigating Officer of a case registered under section 381-A, P.P.C. At the Police Station, New Town, Rawalpindi recovered the stolen vehicle from Gilgit. The accused in the said case on arrest was produced before a Magistrate for his physical remand and the Magistrate vide order, dated 23-5-2001, instead of giving physical remand of the accused to the police discharged him on the ground that there was no incriminating evidence on record to connect him with the commission of offence and this order of the Magistrate having been not challenged before the next forum attained finality. Subsequently the departmental proceedings were initiated against the petitioner for the charge of negligence on the ground that he having not obtained the signature of the witnesses on the recovery memo. Of the stolen vehicle, destroyed the evidence of recovery as a result of which the accused was discharged by the Magistrate. The order passed by the Magistrate is read as under:-- "Present accused is neither named in the F.I.R. Nor anybody has seen him while taking away the car nor the car was recovered from the accused, moreover, no incriminating evidence is on record against the accused, therefore, he is discharged from the case. He be released forthwith if not required in any other case. The recovery memo is not signed by the witnesses."
4. The perusal of the order of the Magistrate would show that the accused was discharged for the reason that no incriminating evidence whatsoever was brought on record to connect him with the commission of offence and not only for the reason that recovery memo. Was not signed by the witness. It may be seen that the petitioner who recovered the stolen vehicle was also a competent witness and without examining the recovery witnesses, it would be difficult to ascertain the question of admissibility of their evidence. The learned Assistant Advocate-General, Punjab, without satisfying us that the defect in the recovery memo. Was the sole basis of the order of Magistrate, contended that notwithstanding the fact that the order was passed by the Magistrate for different consideration, the charge of negligence against the petitioner of not obtaining the signature of witnesses on the recovery memo. Stood established beyond doubt. It may be seen that accused was acquitted by the Magistrate on the ground that there was no evidence to connect him with the crime, therefore, it would not be fair to shift the burden of the weakness of the prosecution case to the petitioner and held him responsible for the discharge of accused. The defect in the investigation may not be a valid ground for discharge of an accused but insufficiency of evidence is definitely a strong ground to, discharge a person from criminal charge and it is clear from the order of Magistrate that accused was discharged for want of evidence and not only for the defect in the recovery memo. Or in the investigation. The omission of the petitioner as an Investigating Officer of the case in not obtaining the signature of the witnesses on the recovery memo. May or may not be a factor to damage the prosecution case but in absence of any evidence that the omission of not obtaining the signatures on recovery memo. Was intentional, it would be treated as a bona fide mistake which may not constitute an act of misconduct.
5. In the light of foregoing reasons, we convert this petition into an appeal and set aside the judgment of the Tribunal. The appellant shall be reinstated in service but he shall not be entitled to the back benefits, and the intervening period shall be treated as leave without pay. This appeal is allowed in the above terms with no order as to costs.
Cited by 1 case
- MEHBOOB ELAHI SHEIKH vs REGISTRAR, LAHORE HIGH COURT, LAHORE 2015 PLJ Tr.C. (Services) 132