1988 PLP (C (PLC(CS))

KH. MUHAMMAD YOUSAF (MEMBER). --Muhammad Ashiq, Assistant Sub Inspector of Police, Police Post Aroorri, P.S. Chak Jhumra has filed the present appeal under section 4 of the Punjab Service Tribunals Act, 1974 and has impleaded the Superintendent of Police, Faisalabad, D.I.G. Police, Faisalabad Range, Faisalabad and Inspector-General of Police, Punjab, Lahore as respondents.

2. The appellant has assailed the order of S.P. dated 20-12-1984 whereby he was awarded a major penalty of reduction in pay by two stages of increments end his appeal and representation against the said order were dismissed by the D.I.G. and I.-G. respectively.

3. Briefly stated the facts of the case are that in the year 1984 the appellant was posted as Sub-Inspector at P.S. Garh when a case F.I.R. No.52 dated 8-3-1984 under section 365/302, P.P.C. was registered on the complaint of Ahmad Yar s/o Wali Muhammad Kathia, who reported that his brother Muhammad Yar deceased has been abducted in complicity with Mst. Rajan, wife of deceased, who had illicit relations with Manzoor Wattoo, accused. The case was registered by Muhammad Arshad, Moharrir Head Constable on receipt of written complaint prepared by Abdur Rehman, Sub-Inspector. The case initially, was investigated by Sub-Inspector Abdur Rehman. Thereafter, the investigation was transferred to C.I.A. Staff but the C.I.A. Staff failed to make any progress in the matter and the investigation was entrusted to appellant. He arrested Manzoor Wattoo, accused but it is stated that he did not properly interrogate him. The said Manzoor Wattoo remained in custody of appellant on physical remand secured from the Illaqa Magistrate from 13-5-1984 to 26-5-1984. The appellant wanted to send Manzoor Wattoo accused to judicial lock up in tact without making any recovery but the complainant party approached the D.S.P. Samundari for transfer of the investigation. As a result thereof the investigation was entrusted to Tauqir Hayat the then S.H.O., P.S. Samundri who was successful in recovering the dead body of Muhammad Yar deceased at the instance of Manzoor accused. Consequently the appellant was placed under suspension. The appellant was served with a show-cause notice under Rule 6(3)(1; of Punjab Police (E&D) Rules, 1975, by holding that no formal enquiry was necessary, on the following two charges:- (i) That the appellant did not interrogate Manzoor Wattoo accused properly and whiled away the period of physical remand and failed to recover the dead body of Muhammad Yar deceased which was subsequently recovered at the instance of Manzoor accused by Inspector Tauqir Hayat S.H.O. Samundri. (ii) That appellant failed to initiate timely preventive measures when accused Manzoor in his very presence threatened Alam Sher Wattoo (deceased) with dire consequences when the latter deposed before him that Manzoor accused was actual murderer in the case. This show-cause notice is dated 14-6-1984. The appellant submitted reply to the show-cause notice repelling the charges against him but later on the Superintendent of Police held that he was satisfied that the nature of the allegations is such that departmental enquiry through the Enquiry Officer as contemplated in sub rule (4) of Rule 6 of Punjab Police (END) Rules, 1975 was necessary and expedient. Consequently the appellant was charge-sheeted with a statement of allegations as mentioned above and Mr. Pervaiz Akbar Lodhi, A.S.P./ S.D.P.O. Saddar was appointed as Enquiry Officer, who conducted the enquiry and held that the first charge against the appellant was proved while the second charge regarding taking of preventive measure was not proved. As regards the first charge, the statement of allegations served upon the appellant was to the extent the appellant did not interrogate Manzoor Wattoo accused properly with. ulterior motive and he wanted to send Manzoor Wattoo accused in the judicial lock up without affecting recovery of dead body of Ahmad Yar deceased at his instance. The Enquiry Officer further held which did not form part of statement of allegations that the appellant prepared bogus case diary of said murder case from No.24 to 37 in order to expurgate him from the said charge. The appellant then was served with a final show cause notice by the S.P. Faisalabad dated 3-7-1984 which reads as under:- "You, S.I. Muhammad Ashiq No.181/F of this District have been found guilty of gross misconduct/inefficiency/corruption as detailed below:- While posted at PS; Garh you investigated case F.I.R. No.52 dated 5-3-1984 under section 365/302, P.P.C. PS: Garh and failed to recover the dead body of Muhammad Yar deceased with the result, the complainant appeared before D.S.P./ Samundri on 26-5-1984 and complained against you. The D . S . P. / Samundri, hence transferred the investigation to Inspector Tauqeer Hayat, S.H.O. Samundri, who recovered the dead body of Muhammad Yar deceased within 24 hours and subscribed case diary No.24 dated 27-5-1984, to this effect. Subsequently , you subscribed bogus case diaries i.e. Nos.24 to 37 although the investigation was transferred from you to Inspector Tauqeer Hayat after your case diary No.23 dated 2-5-1984. It clearly indicates that you intentionally wrote bogus case diaries Nos. 24 to 37 in order to cover your inefficiency and your misdeeds already came to the notice of D . S . P. / Samundri who made a detailed report against you dated 16-6-1984 holding you guilty of gross misconduct. By reason of above you have rendered yourself liable for disciplinary action under the Punjab Police (E&D) Rules, 1975.

2. The undersigned as 'COMPETENT AUTHORITY' has decided to proceed against you departmentally under Rule 6(3)(i) of the Punjab Police (E & D) Rules, 1975, by way of General Police Proceedings as no enquiry is deemed necessary in the instant case.

3. You are, therefore, called upon to show-cause within 7 days of the receipt of this Notice as to why you may not be awarded one of the major penalties including dismissal as provided under Rule 4(b) of the Punjab Police (E&D) Rules, 1975. If no reply is received within the prescribed period, it will be presumed that you have no defence to-offer and ex parte action will be taken against you." Thereafter, the S.P passed two separate orders. In one order dated 20-12-1984 he while giving the reference to charge-sheet and statement of allegations served upon the appellant held that according to finding of Enquiry Officer the charge of mis-handling the F.I.R.No.52 of 1984 was proved against the appellant beyond any shadow of doubt. However, no evidence was forthcoming regarding his failure in taking the preventive action. The S.P. then proceeded to award the major penalty of reduction in pay to two stages of increment to the appellant. The S.P. by virtue of second order dated 20-12-1984 again while giving a reference of show-cause notice dated 3-7-1984 served upon the appellant held as under:- "I am of the view that the accused Police Official is guilty of the charges levelled against him. The manipulation of record has been established in another regular departmental enquiry also which was conducted by A.S.P./S.D.P.O. Sadar, Faisalabad, on other counts. The explanation of the accused S.I. is not found to be satisfactory. He is not considered fit to hold the rank of a Sub-Inspector. He is, therefore, reverted from his officiating rank of S.I. to his substantive rank of A. S. I. with effect from 3-12-1984. "

4. We have carefully examined the case and are of the view that apart from merits the impugned orders suffer from legal infirmity and are fallacious in all respects. It was decided by the competent authority that no formal enquiry was required and the appellant was served with a show-cause notice and proceedings were taken under Rule 6(3) sub clause (i) of the Punjab Police (E & D) Rules, 1975. The appellant filed reply to the show-cause notice. It was the duty' of the competent authority to decide the case after granting personal hearing in view of the reply to the show-cause notice and all circumstances of the case, but the competent authority S.P. changed his mind and decided that a formal enquiry was required through an Enquiry Officer as contemplated by Sub rule 4 of Rule 6 of Punjab Police (E & D) Rules, 1975. Consequently the appellant was proceeded against under Rule 6 sub clause (1)(b) of the said Rules and was served with a charge-sheet alongwith statement of allegations. The law on the point is clear that once it is decided to adopt one procedure the competent authority cannot adopt the other procedure in this behalf. The leading case decided by Supreme Court on this point I Zafar Khan v. Government of Sind and others P L D 1980 S C

310. In the said case the Supreme Court considered the fact of such switch over this procedure while examining in that case the Civil Servants (E&D) Rules, 1973, which are in pari materia with the rules applicable in the present case. In the said case it was held as under:- "It is evident from reading of the aforementioned provisions that the procedures provided by sub-rule (2) and sub-rule (3) are in the alternate i.e. if the 'Authorised Officer' chosen to adopt one procedure he cannot adopt the other vice versa." Accordingly the order passed in those proceedings was held to be without lawful authority. In any case we have been shown no record to indicate that the Authorised Officer had passed any order recalling his earlier order for a formal inquiry and the reasons for doing so." This view was further reiterated by Supreme Court in recent case of Ghulam Hadi Baloch v. Collector of Customs, reported as 1987 SCMR

602. In the instant case the switch over to the new procedure has also prejudiced the appellant in his defence. The appellant was served with a show-cause notice on the two charges, firstly that he failed to interrogate properly Manzoor Wattoo and to recover the dead body of Ahmad Yar deceased and that secondly his failure to take preventive measures in the matter. But as a result of changed procedure, a new charge emerged out that the appellant had fabricated the case diaries of the said case from 24 to

37. This new charge did not find mention in the charge-sheet or the statement of allegations nor it B was subject matter of show-cause notice issued under Rule 6(3)(i). We, therefore, are of the opinion that switch over from one procedure to other is without lawful authority and has vitiated the entire proceedings taken under Punjab Police (E&D) Rules, 1975 against the appellant.

5. We find another irregularity fatal to the action taken against the appellant is that the appellant was twice punished for the same charges which is against the principles of natural justice as well as! contrary to the provisions of law as enshrined in the Constitution of; Pakistan. The record reveals that two separate orders of the same date i.e. 20-12-1984 were recorded by the S.P. Faisalabad on the same charges imposing two different penalties to the appellant in each case. In one order the appellant was imposed penalty of reduction in pay by two stages of increments for mis-handling the case F.I.R. No.52 of 1984 against Manzoor Wattoo and also for preparation of bogus case diaries. This order was passed after the appellant was heard on 3t3-8-1984 and the order was announced in his presence. The other order dated 20-12-1984 purports to have been based on show-cause notice. The allegations are the same based upon the report of enquiry officer but the penalty is that the appellant was reverted from his officiating rank of S.I. to the substantive rank of A.S.I. w.e.f. 3-12-1984. Had the appellant been reverted from officiating` rank of S.I. without any stigma or charges the appellant should not have any grievance and the order would not suffer from any legal infirmity but here the appellant was reverted as a penalty on definite charges. As is clear from the above it is established that the appellant was twice punished which is contrary to the principles of natural justice. It was decided by the Lahore High Court in Abdul Razzak Malik v. WAPDA's case 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 in 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 and meaning to cover all types of penalties. In an identical case 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.

6. In view of the foregoing discussion we are of the view that both the penalties mentioned above are nullity in law and are of no legal effect

7. Even adverting to the merits of-the case we are of the view that the respondents have no case. It is established from the record that the investigation of the case in question was entrusted to C.I.A. but even the C.I.A. failed to make any progress. Again the investigation was entrusted to the appellant, who arrested Manzoor Wattoo accused and his fiancee, the wife of the deceased and thus, made substantial progress in the investigation of the case. According to the appellant he was going to recover the dead body of the deceased when the investigation was malafidely transferred from him and that he did make mention of recovery of dead body at the instance of Manzoor Wattoo accused in police ziminies but according to the respondents the case diaries from 24 to 37 are fake and fabricated. We have made deep appraisal of the record, case diaries, F.I.R. Register, Police File, Register of Crimes P.S. Garh and we are of the view that the findings of the departmental authorities that the ziminies in question are fake is based on conjectures and surmises. No cogent or substantive evidence on the record exists to prove that the same were fake. We are not in accord with the findings of departmental authorities for the reasons mentioned above.

8. In the light of foregoing circumstances we hold that both the penalties imposed. upon the appellant i.e. reduction in pay by two stages of increments and also reduction in rank from S.I. to substantive rank of A.S.I. are without lawful authority and we set aside the same. The appeal is accepted accordingly. There will be no order as to costs. M. Y.H./162/Sr.P. Appeal accepted.