P L D 1971 Karachi 613 (PLP)

(3) These orders shall remain in force until the proclamation of emergency issued under clause (1) of Article 30 of the Constitution of the Islamic Republic of Pakistan is revoked. You are directed to comply with these instructions and follow the provisions contained in the Police Rules instead of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960." He argued, that there is no ambiguity .in this notification by which the Police Personnel in West Pakistan were exempted from the applicability of the said Rules, from 25th October 1965 up to the date of lifting of emergency, which incidentally was on 17‑2‑1969. He contended that as petitioner was charge sheeted on 29‑12‑1966 and finally removed from service on 11‑7‑196, all this was done under legally non‑existent 1960 Rules. The entire proceeding, having no legal sanctity are therefore void ab initio, being in clear violation of Government Notification.

9. When questioned as regard to amenability of petitioner being proceeded against under Chapter XVI of Punjab Police Rules, 1934; as contained in para. No. 2 of above notification, the learned counsel for petitioner submitted that, Chapter XVI of 1934, Police Rules, provides only the officers of the rank of Inspector and below, to be tried departmentally, as petitioner was a Deputy Superintendent of Police, he could not be proceeded against under Chapter XVI of Police Rules, 1931. He further argued, that apart from the above, Chapter XVI makes no provision whatsoever with regard to the punishment of compulsory retirement, but only provides for dismissal and reduction in rank, while petitioner has been compulsorily retired, a punishment which simply is non‑existent, hence, this chapter granted, for sake of argument, applied to petitioner, yet in absence of punishment clause, does not apply to him at all: Of course he felt no difficulty to point out, that as petitioner was tried under Rules of 196), the implied application of Police Rules, 1931 simply does not arise. We think there is lot of force in this argument.

10. In further amplification of his argument with regards to the non‑applicability of 1960‑Rules, the learned counsel for petitioner referred to us to directions (Annexure "K") issued by Deputy Inspector‑General of Police, Karachi to all Ss. P. and other Policy Officers, dated 15‑11‑1965, where attention to the Government notification of 29th October 1965, has been drawn, with instructions that "you are directed to please cease the application of West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960 from today onward. Henceforth all the disciplinary cases shall be dealt with under the provision of Chapter XVI of the Punjab Police Rules, 1934." In the same letter, it is stated with emphasis that enquiries are to be complied with strictly in accordance with relevant rules. He also relied on circular order issued by the Deputy Inspector‑General of Police, Karachi dated March 1967 Annexure "L", wherein all Superintendents of Police, were addressed as: "It is, therefore, directed that departmental enquiry against Police Officers should be held strictly in accordance with the provisions of Police Rule 16.24 of Police Rules, 1934 as this Chapter has been made applicable to all the Police Officers with effect from 29th October 1965, irrespective of the fact whether they were recruited under B. D. P. Manual or under Police Rules, 1934." Not only this, he brought to our notice another notification of Government of West Pakistan dated 19‑7‑1967 (Annexure "M") which is as under: "No. SO‑IV (S&GAD) 1‑36/65.‑In supersession of the Gov ernment of West Pakistan Notification No. S. O. IV (S&GAD) 1‑36/65, dated the 29th October 1965 (hereinafter referred to as the said Notification), the Governor of West Pakistan is pleased to direct:‑- (a) In exercise of the powers conferred on him by sub‑rule (2) of rule 1 of the West Pakistan Government Servants (Effici ency and Discipline) Rules, 19613, that until the proclamation of Emergency issued under clause (i) of Article 30 of the Constitution of the Islamic Republic of Pakistan, is revoked, the said Rules shall not apply to the Police Personnel of West Pakistan below the rank of Deputy Superintendent of Police: Provided that any enquiries under the said Rules pending against any such personnel on the 29th October 1965, shall be finalized in accordance with the provisions of the said Rules. (b) 1n exercise of the powers conferred on him by section 46 of the Police Act, 1861 that during the period that the afore said Proclamation of Emergency is in force, all Police Personnel of West Pakistan below the rank of Deputy Superintendent of Police shall subject to the proviso to paragraph (a) above, be governed by the provisions of Chapter XV1 of the Punjab Police Rules, 1934, and (c) that any departmental proceedings instituted against a Police Officer of or above the rank of a Deputy Superintendent of Police under the Punjab Police Rules, 1934, in pursuance of the said Notification shall stand terminated; provided that where it is so considered necessary, fresh proceedings under the West Pakistan Government Servants (Efficiency and Discipline) Rules, 1960, shall be instituted against any such Officer. By order of the Governor of West Pakistan. S. A. M. KHAN, Additional Chief Secretary to Government of West Pakistan."

11. When he was questioned, as to how this notification is helpful to the petitioner, because, here a Deputy Superintendent of Police can be proceeded against under 1960‑Rules, and the petitioner has been tried under same rules, this notification purparts to save the proceedings from being illegal. He sub mitted that, a proper construction of this notification makes it amply clear that, it only saves proceedings pending on 29th October 1965 or perhaps earlier, but not later, and. his client was charge‑sheeted on 29‑12‑1966, that is more than a year later, therefore, he could not be tried under 1960‑Rules. He further sought to support his argument from clause (b) of this notification, by saying that therein it is again clearly mentioned that all police personnel in West Pakistan, below the rank of Deputy Superintendent of Police are to be governed by Chapter XVI of Police Rules, 1934. The petitioner, held the post of Deputy Superintendent of Police, therefore, he was even exempted in clear words, from rigorous of Chapter XVI of 1934‑Rules. It was argued, that the most important clause in this notification is clause (c) which has been introduced to remove any doubt or confusion created by notifi cation of 29‑10‑1965 concerning departmental proceedings against Deputy Superintendents of Police. According to the learned counsel, there may be instances where a Deputy Superintendent of Police has been proceeded under Chapter XVI of 1934‑Rules, while in other cases as in the present case, 1960‑Rules were invoked, due to grave emergency in the country, this rule (c) was introduced to clarify the position.

12. He contended that as it is quite legitimate to think that officers of the rank of Deputy Superintendent of Police and above, were deliberately exempted from being proceeded against during the emergency then existing in the country due to war with India in 1965, so that officers of the higher rank may be free from anxiety of departmental proceeding during emergency, as nobody could be sure, when they may be required to be called to the front to face the enemy and precisely for this reason, a shift from normally applicable Rules of 1960 to Rules of 1934 was made and the Legislature was conscious about non‑applicability of Chapter XVI of 1934‑Rules, to officers of the rank of Deputy Superintendent of Police and above. The subsequent notification of 19‑7‑1967 was issued by the Govern ment, it is urged, as a clarification to dispel the confusion in the Police Department, to bring home, the real import of notifica tion of 29‑10‑1965.

13. Mr. Kazi Akhtar Ahmad, the learned Advocate‑General, counsel for the respondents, based his argument, mainly on the Point that, notification of 29‑10‑1965, clearly applies to the petitioner, because in clause (1) of the said notification exemption under Rules 1960 applies to "Police personnel in West Pakistan", and the petitioner being an officer of higher rank does not come within the mischief of the said notification, in other words he urged, petitioner still was liable to be governed by Rules of 1960. He also, urged, that the word "personnel" does not include) Officers of the higher rank than the Inspectors and wanted us to interpret it, as such. We are afraid this proposition, especially when, this was not supported by any case‑law of our or of foreign jurisdiction, therefore, we take the word personnel' in its ordinary plain meaning as there seems to be no ambiguity.

14. He further, attempted to argue that notification of 17‑6‑1967, being very clear, as the word Deputy Superintendent of Police is clearly mentioned there, hence petitioner was rightly tried under 160‑Rules. He further elaborated his contention by advancing the argument, although unconvincingly, that it could not be the intention of Legislature to exempt the officers, of Deputy Superintendent of Police and of higher ranks, from departmental enquiry during the emergency, and if there was any lacuna left in the notification of 1965 and of 1967, that can be filled in by the Court, by adopting a construction so that it may advance the purpose and object of, he statute and not to retard it. However, when he was asked that how, he would explain the provisions of clause (a) and clause (c) of notification of 19‑7‑1967 compared to that of notification of 29‑10‑1965, read with Rule 16.1 of Chapter XVI of Police Rules, 1934, where punishment of compulsory retirement simply does not exist and also that where only officers of Inspector's rank only are liable for departmental proceedings. He frankly, at one stage, had to concede that he is unable to support the later notification. All he wanted to submit was that the lacuna left in the notification may be filled by this Court if so, the result would be that the petitioner was legally proceeded under W. P. G. S. (Efficiency and Discipline) Rules, 1960.

15. After giving our anxious consideration to the‑ legal points and interpretation, of the notifications and its resultant effects, we cannot agree to the proposition propounded by the learned Advocate, General, because according to well settled principles of interpretation of statutes, "nothing is to be added to or to be taken from a statute unless there are similar adequate grounds to justify the inference that the Legislature intended something which it omitted to express," per Lord Elden in Davis v. Marlborough ((1819) 1 Swan 74). Lord Mersey held in Thompson v. Goold & Co. ((1910) A C 409) that‑ "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do." Maxwell on the Interpretation of Statutes, 11th Edition, page 16 succinctly lays down the principle that‑ "In a case where the technical language used was precise and unambiguous, but incapable of reasonable meaning, the Court held that it was not at liberty, on merely conjectural grounds to give the words a meaning which did not belong to them."

16. Viewing the present case, in light of normal rules of interpretation we, feel no hesitation to give to the notifications referred to earlier, their plain meanings, to the effect, that the word `personnel' used therein, cannot be confined to Police Officers, below the rank of Deputy Superintendent of Police as Advocate‑General wants us to believe. Now we do not find it an absolute necessity to fill up an apparently non‑existent legal lacuna which may have crept in the notifications in question, to add words which do not exist as is suggested, that we might do in the guise harmonizing the language of notifications with the latent intention of the Legislature.

17. The learned Advocate‑General, referred us to Hassonally Khan G. Agha v. Province of West Pakistan (PLD1958SC(Pak.)86), Woking Muslim Mission v. The Crown (PLD1956FC209),Begum Shamsunnehar v. The Speaker, East Pakistan rovincial Assembly (PLD1965SC120) and Province of East Pakistan v. Sharafatullah (PLD1970SC514), in support of his arguments. In the Supreme Court decision of 1958, it was laid down, that‑ "Where two provisions relating to the same Matter are being construed together, the rule is that they should as far as possible be construed consistently with each other." Now there cannot be any disagreement with this golden principle of interpretation. Here the words "as far as possible" are conspicuous thus noteworthy. Although the matter is the same but provisions under interpretation in this case are contained in two distinct notifications in point of time and fact, therefore, the applicability of above rule seems to us not relevant. The Federal Court decision of 1956, equally in our opinion, does not help the case of respondents, wherein it was held that‑ "Where a literal construction would lead to repugnancy to good sense, the Court may add words to the provision to be construed."

18. Contrary is the position here, as by construing the two notifications, instead of any repugnancy, they explain and supple ment such other, merely, because, a citizen might be able to assert and to establish a vested' right of which he has been deprived, by misinterpretation of a department, does not amount to absence of good sense in the notifications if given their plain meanings. The remaining cases cited at the Bar, by the Advocate- General, concerned, the same points of interpretation, not being pertinent to the question before us we do not find it necessary to discuss them in this judgment.

19. The learned counsel for the petitioner relied on A6dus Sattar v. Arang Limited (P L D 1965 S C 345) wherein it was laid down by their Lordships of the Supreme Court, that‑ "as a principle of interpretation of statutes, the Courts cannot while interpreting a defectively worded or incompletely implemented law invest such law with effectiveness in absence of another law." We respectfully follow this view of the Supreme Court, and holds that defect or lacuna cannot be made good by the later notifica tion, although we have already opined, that the later notification further clarifies, the position of officers of Deputy Superin tendent of Police or higher ranks with regard to departmental enquiries.

20. Looking to the matter before us, from another angle, granting for sake of argument petitioner was triable under Rules, 1963, even then, there are material irregularities sufficient to hold the proceedings void. Firstly, the objection of learned counsel for petitioner carries enough weight, that the preliminary enquiry was entrusted to one Agha Muhammad Ali Khan Deputy Superintendent of Police, who is an officer of the same rank, offends not only accepted norms of fairplay and justice, but is against the very spirit of Rules of 1960. Over and above this, at the time of formal inquiry, held by Additional D. I. G this very D. S. P. namely Agha Muhammad Ali Khan who held the preliminary inquiry, is allowed to testify against petitioner as prosecution witness No.

15. Now this procedure, to say the least in our opinion, deprived the petitioner to any proper defence which he may otherwise have had.

21. In this connection a case of Supreme Court of India State of U. P. v. Muhammad Nooh (P L D 1958 S C (Ind.) 274), may be referred with some advantage. Iii that case it was held that‑ "the District Superintendent of Police examined a certain witness in the course of a Departmental trial against a Police Constable. It seemed that that witness's evidence was consi dered a vital link in the chain of evidence against the Police Constable. The District Superintendent of Police reached the conclusion that the witness had turned hostile. Apparently no other witness was available, so the District Superintendent of Police, who seemed to have had personal knowledge about the facts, stepped down from the Bench and got his testimony recorded by another authority and after that was done, stepped back to the Bench in order to decide whether he should believe his own testimony in preference to that of the witness who, in his judgment, had committed perjury and gone back on the truth: Held, that the act of the District Superintendent of Police in having his own testimony recorded in the case indubitably evidenced a state of mind which clearly disclosed considerable bias in him. The rules of natural justice were completely discarded and all canons of fairplay were grievously violated by the District Superintendent of Police in continuing to preside over the trial."

22. The facts of present case or not very dissimilar to the above case except that here the second enquiry was held by another officer of the higher rank, yet it cannot be ignored that the procedure adopted in first case offends all canons of justice and violates to great extent principles of natural justice, more so, when not only the first enquiry officer the D. S. P. found fit to get himself examined, but the enquiry officer, as he admits in the opening sheet of his report, had the enquiry papers, recorded by D. S. P. before him, when the petitioner was called on 26‑4‑1967 for recording his first plea, as the enquiry officer put it. Can there be any further doubt that the enquiry officer, could not hold an impartial and fair enquiry against the petitioner? Our answer is an emphatic no.

23. In view of the above discussion, and the legal position we are constrained to hold that the entire departmental pro ceedings held against petitioner, are void, illegal and of no legal effect. The result is we accept this petition with costs and quash the impugned orders Annexures `G' dated 19‑10‑1967 and `J' dated 11‑7‑1968, pissed by respondents Nos. 1 and 3 respectively as of no legal effect. We may clarify here, that the respondents would be free to proceed against the petitioner according to law, if so advised. Order accordingly.