2007 PLP (C (PLC(CS))

UMAR ATA BANDIAL, J.

Learned counsel for the petitioner police constable submits that upon certain facts that the petitioner was issued show-cause notice by the respondent, D.P.O. Mianwali, on 29-6-2005 under the Punjab Removal from Service (Special Powers) Ordinance, 2000 ("Ordinance") whereupon after the conduct of inquiry the petitioner was not awarded any punishment but was merely issued a warning. Subsequently, on 7-10-2005 the respondent issued a fresh show-cause notice to the petitioner on the same facts under the same Ordinance threatening the petitioner with the imposition of major penalty. The later show-cause notice is attacked by the petitioner on the basis of the maxim that no person shall be vexed twice for one and same cause. Reliance is placed upon Director-General (Field) Agriculture Department v. Haji Abdur Rehman 1989 SCMR 1224 and Abdur Razzaq Malik v. WAPDA PLD 1973 Lah. 188 which are both cases pertaining to service matters.

2. A perusal of the record shows that the underlying facts constituting the basis of the aforesaid show-cause notice is a complaint lodged in case F.I.R. No.421 dated 29-10-2004 under section 409, P.P.C., Police Station City Mianwali, nominating the petitioner and another Police Officer as accused. During the investigation the petitioner was found innocent in that case. Subsequently, on the same facts and against the same accused another F.I.R. was lodged with the Anti-Corruption Establishment bearing case F.I.R. No.11, dated 24-8-2005 for the offences under section 409, P.P.C. read with section 5/2/47, P.C.A., Police Station ACE, Mianwali. In this case also criminal prosecution of the petitioner was not recommended for the petitioner who thereby stood discharged.

3. In the foregoing background of the petitioner's exoneration of any responsibility for the criminal action complained of, the fresh proceedings for further prosecuting the petitioner departmentally needs to be weighed objectively. That having been proceeded departmentally for the same alleged wrong previously and not being punished under the law is consistent with the findings of two investigations. In the circumstances the impugned notice does incur the restraint imposed by the maxim relied upon by the learned counsel for the petitioner and cited in the precedent cases. In the circumstances, therefore, the dictum of the Honourable Supreme Court in its aforenoted case is followed. Therein also the previous proceedings had ended in the issuance of warning to the employee as is the case presently. The subsequent proceeding launched against an employee for termination of his service were said to be violative of the maxim and were therefore, annulled. Based on that precedent further disciplinary proceedings against the petitioner are oppressive and are, therefore, declared to be illegal and without lawful authority. Petition allowed. H.B.T./R-17/L Petition allowed.