1988 PLC(CS) 199

KH.MUHAMMAD YUSUF (MEMBER).-- Bashir Ahmed, ex‑Constable No. 1601 of District Police, Faisalabad has filed the present appeal under section 4 of the Punjab Service Tribunals Act, 1974, impleading S.P. Faisalabad and D.I.G. Police, Faisalabad Range, Faisalabad as respondents. The appellant has impugned the order dated 15‑3‑1984 of S.P. Faisalabad (Respondent No.l) whereby he was reverted to his substantive rank of Constable and also impugned the order of his dismissal dated 29‑7‑1984 passed by the same respondent S.P. Faisalabad.

2. Briefly stated the facts of the case are that the appellant was posted as Head Constable at P.S. Gulberg, Faisalabad when on a complaint of corruption received against him he was reverted to his substantive rank of Constable with immediate effect by the S.P. Faisalabad vide his order dated 15‑3‑1984 which reads as under:‑

"On receipt of a complaint from Muhammad Yaqub son of Karim Bakhsh caste Mughal resident of Chak No.203/RB P.S. Nishatabad, by the Deputy Inspector General of Police, Faisalabad Range; Faisalabad, Mr. Javaid Noor, A. S. P./ S.D.P.O. Sadar, Faisalabad, was appointed to hold a preliminary enquiry into the allegations of corruption levelled against H.C. Bashir Ahmad No.1601 of Police Station Gulberg. As per enquiry report of S.D.P.O. Sadar, Faisalabad, the charges levelled against the H.S. were substantiated.

2. In view of the above, the H. C. is not likely to become a good Police Officer and is a corrupt Police Official. He is not worth retention the rank of a Head Constable. He is, therefore, reverted to his substantive rank of constable with immediate effect. "

On the same complaint the appellant was charge‑sheeted as under:‑

"I, Zia‑ul‑Hassan Khan, Superintendent of Police, Faisalabad hereby charge you H.C. Bashir Ahmad No.1601 of this district as under:‑

You H.C. Bashir Ahmad 1601 while posted at P.S. Gulberg in the year 1983 extorted Rs.9,000 from Muhammad Yaqoob s/o M. Karim Bux, caste Mughal s/o Chak No.203/RB and got released his son Muhammad Sharif who was apprehended by Nishatabad Police for his involvement in Motor Cycle theft case. Thereafter, you again extorted Rs.2,500 and Rs.4,000 from aforesaid Muhammad Yaqub on different occasions for the release of his son Muhammad Sharif who was again arrested in the theft of Motor Cycle, but you could not render any assistance to Muhammad Sharif and subsequently he was challaned in various cases and was sent to Jail. Hence, A.S.P. Javid Noor conducted an enquiry on the receipt of application submitted by Muhammad Yaqub to the D.I.G./Faisalabad Range, Faisalabad. During enquiry A.S.P. Sadar recorded the statements of various persons in whose presence you extorted money from Muhammad Yaqub and he hold you guilty for receiving illegal gratification. Thus, you have committed grave misconduct liable to be punished under Punjab Police (E & D) Rules, 1975 including the punishment of dismissal."

As a result the appellant as Constable was also dismissed by the S.P. Faisalabad vide his order dated 29‑7‑1984. The appellant filed an appeal before the D.I.G. which too was dismissed as time‑barred by the D.I.G. Police vide his order dated 26‑3‑1986. Hence, the appellant has filed the present appeal before this Tribunal on 24‑4‑1986.

3. The appeal of the appellant was admitted for regular hearing and notices were issued to the respondents who filed written objections controverting the averments of the appellant.

4. The learned counsel for the appellant has assailed the impugned orders on the following grounds: ‑

(i) That the appellant filed appeal against his dismissal order before the D. I. G. in time and same was mis‑placed in the office of D.I.G. and D.I.G. has erroneously held that the appeal of the appellant was time‑barred.

(ii) That the appellant was exonerated of the charges by the Enquiry Officer Syed Hussain Shah D.S.P. but the S.P. has disagreed with the findings of the Enquiry Officer and that the order passed by S.P. dismissing the appellant was without any justification.

(iii) That no final show‑cause notice was issued by the S.P. before passing the impugned order of dismissal of the appellant.

(iv) That the appellant has been twice punished on the same charges. He was firstly reverted to the rank of Constable and then again was charge‑sheeted and dismissed from service. This action of the S.P. is against law.

5. We have heard the learned counsel for the appellant at length and the learned Deputy District Attorney on the points involved in the case. So far the order of reversion of appellant is concerned it is no doubt the punishment as indicated in the order itself but the appellant did not challenge this order before the D.I.G. the appellate authority. Hence, he cannot impugned the same before this Tribunal and thus, his appeal regarding reversion is incompetent. The appellant` has not availed the departmental remedy so far and thus, the jurisdiction of this Tribunal is barred by section 4(1)(a) of the Punjab Service Tribunals Act, 1974.

6. As regards the order of dismissal of the appellant we may not go into the merits of the order so far factual position is concerned. It is admitted fact that the appellant was reverted from the rank of H.C. to the substantive rank of Constable by way of punishment. Thus, the appellant could not be twice punished on the same charges. The law on the point is settled. It was held by the Lahore High Court in Abdul Razzak Malik's case v. WAPDA P L D 1973 Lahore 188 that none shall be twice vexed for one and the same cause which is based on legal Maxim "Nemo debet is vexari prouna et eadem." It is further laid down in Article 13 of the Constitution of Pakistan that no person shall be prosecuted or punished for the same offence more than once. Here the word offence has‑ been given wider scope anal meaning to cover all types of penalties. In identical cases we have) already set aside the two different penalties separately imposed upon the accused officer in Appeal No.300/770 of 1986 decided on 27‑7‑1987 Lal Khan v. S.P. Sheikhupura etc. and appeal No.458/1010 of 1986, decided on 2‑11‑1987, Muhammad Ashiq v. S.P. Faisalabad and 2 others. Thus, it is clear that the order of dismissal of the appellant is contrary to the principle of natural justice and the provisions of ~ Constitution of Pakistan enshrined in Article 13 and, therefore, nullity in the eyes of law and of no legal effect.

7. In the light of the above discussion, we partially accept the, appeal and set aside the order of dismissal of the appellant as Constable and order his re‑instatement in service with immediate effect. The period for which the appellant remained out of service should be treated as leave of any kind due to him. As regards the appeal against order of reversion of the appellant from the post of Head Constable to the substantive rank of Constable we dismiss the same as incompetent.

There will be no order as to costs.

M.Y.H./159/Sr.P Appeal accepted.