MUHAMMAD RIAZ Versus SUPERINTENDENT OF POLICE, FAISALABAD

S. ABDUL JABBAR KHAN (CHAIRMAN). ‑ Muhammad Riaz, ex‑A. S.‑I. has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Superintendent of Police, Faisalabad and D. L‑G. Police, Faisalabad Range at Sargodha, as respondents.

2. By virtue of this appeal he has prayed that the impugned orders dated 5th June, 1982 and 17th January, 1983 be set aside and the appel lant be reinstated in service with all back benefits. He has also prayed that the costs of appeal may be awarded in case the appeal is accepted in his favour.

3. Brief facts of the case are that the case under section 11/16 of Zina Ordinance was registered at Police Station Chak Jhumra against certain accused persons and the appellant was detailed to arrest abductors and to effect recovery of abductee. After obtaining permission to this effect, from his superiors, the appellant left for Multan alongwith five constables but failed to trace out the culprits. This was duly reported by him, vide daily diary No. 4 dated 18th April, 1982. However some tinge later the appellant was successful in apprehending the accused as well as the abductee. The accused were sent to judicial lock‑up and the abductee to Darul Aman at Faisalabad. However in respect of accused Arif physical remand was taken by him from the Court. The abductee was produced in the Court on 24th April, 1982 and the learned Magis trate, after recording her statement under section 164, Cr. P. C. observed that as no offence had been made according to her statement, therefore, the appellant should escort the abductee to her in7laws. Accordingly the appellant proceeded to Multan, vide Daily Diary No. 17, dated 24th April, 1982 of P. S. Chak Jhumra. While doing so he found Haji Sher Muhammad present outside P. S. Chak Jhumra, who requested him that the appellant should hand over the abductee to him at Chak Jhumra and should not proceed to Multan. Firstly the appellant refused to oblige the said Haji Sher Muhammad but later on he agreed to hand over the abductee to Shah Rasul father‑in‑law of the abductee according to the order of the Court at Faisalabad. The said Shah Rasul met the appellant at Jhal Khaneane and handed over abductee to him against a receipt which was duly signed by him. Dissatisfied with the above happening Haji Sher Muhammad and Zafar Hussain made a complaint against the appellant that he had demanded illegal gratification from them and that he wrongfully detained the accused persons. On the strength of the said complaint, S. P. issued a show‑cause notice in the name of the appellant, in which the allegation of accepting illegal gratification and keeping the accused in illegal confinement were levelled. The appellant submitted detailed reply in which he denied the allegations so levelled against him. In the meanwhile S. P. Faisalabad, at the instance of said Haji Sher Muhammad and Zafar Hussain, got a case registered against the appellant under section 161, 343/347, P. P. C. and 5 (2) 47, P. C. A. S. P. Faisalabad appointed Mr. Javaid Noor, A. S. P. City to make preliminary enquiry in the said case in which the appellant was not associated and even had no access to the Inquiry Report so submitted by the said A. S. P. to the S. P. The competent authority, respondent No. 1, relying on the said preliminary enquiry, dismissed the appellant from service, vide impugned order dated 5th June, 1982. The appellant sub mitted departmental appeal to respondent No. 2, which was decided after the judicial case against the appellant, had been decided. The appellate authority, did not consider the judicial verdict in favour of the appellant as sufficient to exonerate him and reinstate him in service although he observed in his judgment that the appellant that the appellant had been honourably acquitted but dismissed the appeal, on the ground that besides the main charge, the other charges connected with the same, stood proved against him, as the same had been mentioned in the judgment. 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 with their assistance.

5. Learned counsel for the appellant has submitted that the main charge against the appellant was demand of Rs. 5,000 as illegal gratification and accepting of Rs. 3,000 ultimately from Haji Sher Muhammad and Zafar Hussain, It has also been submitted that the other charges i.e. that he went without permission to Multan with regard to the investigation of this case and that he illegally confined the abductee and the accused so recovered by him and that he made false entry in the daily diary in respect of this case although are contrary of the main charge yet the same have been fully disproved by documentary evidence so produced by the appellant before the competent authority. Learned counsel has submitted that the main charge has been quashed, vide judgment of Special Judge, Anti‑Corruption dated 12th December, 1982 who has gone to the extent to hold that the case so registered against the appellant, was a false case at the instance of S. P., who wanted to oblige his relations and associates, as they were annoyed with the conduct of the appellant while dealing with them. It has been vehemently argued that when the main case has fallen to the ground and the Court has adversely observed about the conduct of the competent authority, who initially dismissed him from service, the D. I.‑G. was duty‑bound to look into this aspect of the case and to discuss in detail, how the appellant has failed to disprove or dislodged the charges so levelled against him with regard to illegal confinement and making false record by him.

6. On the other hand learned District Attorney has adopted the parawise comments filed by the Department and has submitted that although the appellant has been honourably acquitted by the Special Judge Anti-Corruption under the charge 161/343/347, P. P. C. and 5 (2) 47, P. C. A., yet the judgment has not dealt with other charges so levelled against the appellant, therefore, mere acquittal of the appellant from the main charge, would not disentitle the appellate authority to uphold the order of dismissal of the appellant, on account of other charges which according to the learned District Attorney stood fully proved.

7. We have given our anxious thought to the arguments so advanced by the parties and first of all we will look into the allegation with regard to the leaving for Multan by the appellant, without permission in this case, as this would be the starting point which later on culminated into different acts as alleged in the show‑cause notice. In this respect we have looked into Annexure 'A', filed by the appellant in his defence, which is a copy of report No. 10 dated 17th April, 1982 according to which it has been stated that the appellant was proceeding alongwith Saeed Ahmad, Maqbool Ahmad, Muhammad Aslam and Azmat Rasheed, Constables, in case No. 73/82 under section 11/16 of Zina Ordinance, after obtaining the permission of the said investigation. In this manner, it is now on the record that the appellant did leave, with permission of his Inspector, a permission which is available on the Police file, was accorded to him by his superior for making investigation in this case. In the face of this docu mentary evidence, the first charge falls to the ground. We are sorry to observe that this aspect of the case supported with documentary evidence on the record neither S. P. nor the D. I. ‑G. Police, have taken care to attend. With regard to the charge levelled in the show‑cause notice that on 21st April, 1982 the appellant showed arrest of Arif son of Shah Rasool, Mst. Arab wife of Shah Rasool, Mst. Mukhtaran daughter of Yarish and recovery of Mst. Saidi and the appellant was not entitled to place these people under detention when Mst. Saidi had given statement before the Magistrate in which she refuted the prosecution version. According to the S. P. the competent authority, the detention of Arif, Mst. Arab, Mst. Mukhtaran, would become illegal, we are afraid we cannot agree with this findings, as it is a matter of common knowledge, that when a case is registered against the accused persons under Hudood Ordinance or offence of corruption, the mere statement of abductee after recovery before the Magistrate, would not exonerate the other accused, till the matter is brought before the Court and the Court holds them not guilty. This legal position is so manifest that it cannot be controverted from any angle. There was a Case registered against a number of persons on the charge of abducting Mst. Saidi and as they had been arrested by the appellant therefore, the only, course left open to the appellant, was to detain them in the judicial lock‑up till the case was finally decided in the Court of Law and the statement of Mst. Saidi by itself, would not be sufficient either for cancellation of the case or making it obligatory upon the appellant to release them immediately without referring the case either to judicial authority or to his superiors. With regard to the allegation in the show‑cause notice, that the appellant made false entry in the daily diary with regard to the prosecution of this case, we called upon the learned District Attorney, to produce any evidence, documentary or otherwise in this respect, when confronted with this situation he candidly accepted that he has no evidence on the record, to repel the same except the observation of the competent authority. In case the competent authority had any evidence that the appellant had made false entry in the daily diary, the same should have been brought on the record and he should have been confronted with such evidence, so as to justify his stand either way. The holding of preliminary enquiry would not help the case of the prosecution, in any manner, against the appellant as the appellant was never associated with that enquiry and has no chance to look into the enquiry report, when he appeared before the competent authority. Unless and until one knows what is the evidence on which he is being convicted, it would not be possible for him to defend his case properly and thus the principle of audi altram partem would certainly apply in his case.

8. We have looked into the judgment of Special Judge, Anti -Corruption carefully, and find that he has struck to the root of the case by observing that in fact the case so registered against the appellant, was a false case motivated by the S. P for motives ulterior, as he, was influenced by his close relations and associates for registration of the said case, which according to the Special Judge Anti‑Corruption was registered at his own residence. With this observation on the record, it was obligatory upon the competent authority viz. S. P. to protest against the said structure and to file an appeal before the High Court, to get the same expunged. The failure on the part of the competent authority to do so, has made the judgment final against him, for all times to come. We have no reason to by pass the judicial verdict given in unequivocal term in favour of the appellant, by holding that he is being acquitted honourably. In these circumstances the D. I.‑G. Police before whom the said judgment was placed, was also under obligation either to controvert the judicial observation so made by the Special Judge Anti‑Corruption or to direct his Legal Department to file an appeal against the same, a process which is not unusual with the Police Department. It is a common knowledge that appeal against acquittal are often filed by the Department, when they feel, there is justification to do so, and the judicial order is not liable to be sustained. The D. I.‑G. has, in a very short judgment, ignored this very important aspect of this case and has observed that although judgment is in favour of the appellant, yet other charges so levelled against him stand proved, we are sorry we cannot agree with this observation of the D. I.‑G., which is not based on any cogent grounds and the order in this respect as well is not, a speaking order at all.

9. In view of the detailed discussions of the entire facts as well as legal aspect of this case, we have no hesitation to set aside the impugned orders, which we now set aside as being without any justification and proceed to accept the appeal. The appellant will be reinstated in service w.e.f. 5th June, 1982 with all back benefits and he will be treated on duty for the intervening period. However, there will be no order as to costs. The judgment be communicated to the parties.

A. E. Appeal accepted.