MUMTAZ ALI SHAH vs CHAIRMAN, PAKISTAN TELECOMMUNICATION COMPANY

SARDAR MUHAMMAD RAZA KHAN, J.--This is an appeal filed by Mumtaz Ali Shah, Assistant Divisional Engineer Planning (S/R), Pakistan Telecommunication Company Limited against the judgment dated 30-61997 of the Federal Service Tribunal, Islamabad, whereby his Appeal No,218(R) of 1997 was dismissed. Leave was granted by this Court on II-2-1998.

2. Mumtaz Ali Shah joined the department as Engineering Supervisor (Telephones) in BPS-11 on 1-9- 1964. He was promoted as Assistant Engineer in BPS-16 on 15-12-1980. A meeting of Departmental Promotion Committee was held on 18-12-1993 for promotion to the post of Assistant Divisional Engineer (B-17). Various promotions were ordered including that of his juniors, namely, Muhammad Ayub Khan, Riaz Hussain and Abdul Majid (respondents Nos.5, 6 and 7) but the promotion of appellant was deferred for reason that a case under sections 418, 420, 468 and 471,.P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947, was under process for indictment.

3. Vide Order No,3(32) 92-FIA (ii) dated 21-9-1994, the Federal Government, Ministry of Interior and Narcotics Control (Interior Division), Islamabad allowed the withdrawal of the aforesaid criminal case, which accordingly was allowed to be withdrawn by the learned Special Judge (Central), N.- W.F.P., Peshawar on 19-10-1994. The appellant made a departmental representation on rejection whereof he went to the Federal Service Tribunal but to no avail and hence this appeal.

4. Both, the departmental authority as well as the Federal Service Tribunal, in brief, were of the view that withdrawal of case was not tantamount to honourable acquittal and hence the promotion could not be granted with effect from 18-12-1993 when his colleagues were given promotion. The question to be determined is, as to, whether the promotion could be denied on the ground that the appellant was not honourably acquitted and, as to, whether it was a case of discrimination.

5. The consequential conviction or acquittal (whether honourable or otherwise) of an accused in a criminal trial is always with regard and reference to the charge levelled against him. But once, when the very charge is withdrawn by the competent Authority or by the Public Prosecutor under section 494, Cr.P.C, it would be presumed that the acquittal was without any benefit of doubt. Thus the honourableness or otherwise of acquittal is totally immaterial and out of place.

6. Honourable acquittal is a phenomenon totally alien to the Criminal Procedure Code. It seems to be a self-coined terminology least supported by the Code. The effect of withdrawal under section 494, Cr.P.C. Is only to the effect that if the withdrawal occurs before the framing of charge, it entails upon the discharge of accused and if it occurs after the framing of charge, it entails upon acquittal. It is as good an acquittal as it would have been under any other circumstances. Rather, an acquittal due to withdrawal of prosecution is placed on a better footing because the prosecution is of the view that there are no chances of conviction and the charge is groundless. In the circumstances, to coin and import a term like "honourable acquittal" is not at all justified and is nowhere provided in the entire Code.

7. In the circumstances, the appellant, though promoted later on, was wrongly denied his promotion with effect from 18-12-1993 when admittedly juniors to him like respondents 5 to 7 got promoted. It also amounts to a glaring discrimination because without there being any evidence on record of the criminal case, nobody can presume, as to, whether it was a clean acquittal or an acquittal through benefit of doubt. We believe that the Differentiation of clean acquittal and acquittal through benefit of doubt amounting to honourable acquittal is a self-coined proposition having no nexus with the provisions of Code of Criminal Procedure. An acquittal is an acquittal simpliciter and must entail upon all the consequences of a pure acquittal.

8. Consequently, the appeal is accepted, the order of departmental authority and the judgment dated 30-6-1997 of the Federal Service Tribunal are set aside and the appellant is hereby held entitled to the grant of promotion with effect from 18-12-1993, the date his juniors were promoted.

This shall maintain his seniority qua others.