AMIR MUHAMMAD Versus S.S.P., DISTRICT EAST, KARACHI

ABDUR RASHID KHAN SHERWANI (MEMBER).‑‑‑ The facts giving rise to this appeal are that the appellant was working as Police Constable in the Karachi Police and was posted in the Aziz Bhatti Police Station. On 3‑8‑1991 the appellant and PC Nadeem were on duty near Aziz Bhatti Park. They stopped a truck bearing No. LS‑2731, loaded with iron bars and PC Nadeem demanded `Bhatta' from the truck driver. The truck driver refused to pay it and started his truck. On this PC Nadeem fired on him with his rifle and the bullet injured the driver on the right side of his forehead. In injured condition, he was taken to the Hospital. The driver lodged F.I.R. No.118/91 under section 307/34, P.P.C. On this complaint both the constables were arrested. The DDA East scrutinised the case and on his recommendation section 307, P.P.C. was changed to section 308, P.P.C. read with section 337‑H of Qisas and Diyat Ordinance and the case was accordingly challaned. The S.S.P. East issued a show‑cause notice No. SSP, (East) DP/91‑25884, dated 2‑9‑1991 and in consequence of it the appellant was dismissed from service (vide SSP East Karachi No. SSP (East) DP/1991‑28174‑79, dated 19‑9‑1991). The appellant submitted a representation dated l0th October, 1991, to the Deputy Inspector‑General of Police under section 14 of the Sindh Police (Efficiency and Discipline) Rules, 1988, but received no reply till his filing this appeal. On examination the DSP/Legal, Karachi Range, recommended that the appellant's name be dropped and the Deputy Inspector‑General of Police, Karachi Range, accordingly, submitted to the trial Court the case under section 173, Cr.P.C. deleting the name of the appellant. As a consequence, the charge was also altered from section 308, P.P.C. read with section 337‑H, P.P.C. (Q.D) to section 324, P.P.C. as amended by Criminal Law (Second Amendment) Ordinance, 1991. The Police Station Aziz Bhatti submitted its report dated 5‑12‑1991 under section 169/173, Cr.P.C. on which the ACM IV (East), Karachi, discharged the appellant from the charge. On his discharge, the appellant submitted an application dated 12th December, 1991, to the respondent No. 2 for reinstatement in service, but having received no reply, filed this appeal. The appellant contends that he was doubly punished for no fault of his. On the one hand, challan was submitted to the Court for criminal proceedings; on the other hand, departmental proceedings were initiated against him as a result of which he was dismissed from service.

2. The appellant contends that fair dealing as required under section 6(3)(b) "General Proceeding" under the Police (Efficiency and Discipline) Rules, 1988, was not followed. The appellant pleads that the authorised officer was duty‑bound to:

(a) issue charge‑sheet to the appellant and to appoint any enquiry officer, but it was not done, and.

(b) to indicate in the show‑cause notice the punishment that was to be imposed upon the appellant.

The appellant further submits that statement of allegations issued with the show‑cause notice is based on the following evidence:‑

(1) Morning report of Police Station Aziz Bhatti dated 3‑8‑1991, and

(2) F.I.R. 116/91 under section 307/34, P.P.C. of P.S. Aziz Bhatti, Karachi.

3. The rule 6(i) of the Police (Efficiency and Discipline) Rules, 1988, states that the proceedings under these rules may be initiated on receipt of a complaint or judgment or order of a Court containing stricture against Police Officer, or otherwise". The appellant pleads that a clear‑cut departure from the prescribed rules and regulations has been done and without waiting for the decision of the Court, the appellant was dismissed. The action, he says, is illegal and without due process of law, and is, therefore, required to be set aside.

4. We have heard the learned counsel for the parties and went through the relevant record produced before us. It emerges that when the truck was stopped and `Bhatta' was demanded by PC Nadeem, the appellant restrained the other PC from doing so and allowed complainant to go. The complainant, Muhammad Suleman. Driver, in the FIR No. 116/91, stated that the tall police constable (appellant) asked the fat police constable (Nadeem) to let the truck go. The DSP Legal, Karachi also had not found him guilty of the case. The section 307, P.P.C. was also altered to section 308, P.P.C. read with section 337‑H, P.P.C. of the Qisas and Diyat Ordinance. After scrutiny by the D.S.P. Legal, Karachi Range, the case was resubmitted under section 173, Cr.P.C. before the trial Court and in it the name of the appellant was deleted because he was not found guilty by the DSP Legal. The Aziz Bhatti Police Station, therefore, submitted its report under section 169/173. Cr.P.C. to the Court and the ACM IV (East), Karachi, discharged the appellant from the charges.

5: The grounds of action in the show‑cause notice No. SSP‑(East)DP/91 75884, dated 2‑9‑1991, issued by the Senior Superintendent of Police, District East, are as under: ‑

GROUNDS OF ACTION

Complainant Truck Driver Muhammad Suleman son of Abdullah reported at Police Station Aziz Bhatti on 3‑8‑1991 that while he was coming to Gulshan‑e‑Iqbal with a load of Iron Bars, he was stopped by Constables No. 2906 Abdul Nadeem and 1802 Amir Muhammad of Aziz Bhatti Police Station. They demanded an illegal gratification. On refusal to cough out this amount Constable Abdul Nadeem got infuriated and opened fire on the complainant with the intention to kill him, resulting in injuries on the latter's person. Hence a case was registered under FIR No. 116/91 under section 307/34, P.P.C. Police Station Aziz Bhatti Karachi. You displayed a high degree of greed and corruption. This attitude tantamounts to gross‑misconduct on your part.

The above statement of allegations is based on the following evidence:

(1) Morning report of Police Station Aziz Bhatti dated 3‑8‑1991.

(2) FIR No. 11/91 under section 307/34, P.P.C. of P.S. Aziz Bhatti, Karachi.

In reply to the show‑cause notice, the appellant pleaded not guilty.

6. The respondent No. 1 considered the reply of the appellant and found that his reply is anything but satisfactory. According to him, it is a clear case of high‑handedness on his part that he, in complicity with his fellow Constable Abdul Nadeem, stopped truck driver for ulterior motives, demanded illegal gratification from him and on his refusal to grease his palm, the truck driver was fired upon from the Government weapon and, thus, injured him on his forehead. He, therefore, opined that the charge is established against the appellant calling for an exemplary punishment and then he passed orders of his dismissal from service with immediate effect.

7. The conclusion drawn by the respondent No. 1 is illegal because:

(i) The appellant pleaded not guilty in his reply to the allegations levelled therein.

(ii) In the F.I.R., the complainant, Muhammad Suleman, clearly stated that the appellant asked his companion police constable to let the truck go.

(iii) The DSP Legal, Karachi Range, candidly expressed that the case was only against one constable namely Abdul Nadeem, and the appellant had been wrongly challaned. He continued that no overt act had been assigned to the appellant, rather he was asking the other constable to let the truck go. He, therefore, recommended to drop the name of the appellant.

(iv) The ACM IV East, Karachi, accepted the request of the Police that the name of the accused be deleted from the charge‑sheet.

(v) The respondent No. 1 did not issue the final show‑cause notice which he was required to be issued before imposing upon him the penalty of dismissal from service.

8. We have given our full mind to this case and are of firm opinion that the orders of dismissal from service passed by the respondent No. 1 against the appellant admittedly suffer from legal infirmities. We, therefore, overturn the orders of dismissal from service passed by the respondent No. 1 against the appellant and order his reinstatement into service from the date of dismissal. The case is disposed of with no orders as to costs.

9. Given under our hands and the seal of this Tribunal this 20th day of August, 1992.

A.A./386/Sr.S

Appeal accepted.