1976 PLP [C (PLC(CS))

In this appeal the appellant, a Foot Constable No. 121 was employed in the Railway Police and was working as General Duty Constable at Railways Out Post, Gujranwala in 1972. The Deputy Superintendent of Police. Railways, N.W. F. P., Peshawar reported to the A. I. G., Police. Railways, Punjab, Lahore vide his letter No. 1557/RP, dated 3‑6‑72, that one Mohammad Siddiq, Constable No. 121 Railways Police, Lahore while travelling by 2/Down Khyber Mail was detected to carry 15 seers of smuggled betel leaves which were recovered from his possession on 29‑5‑72 at Nowshera Police Station. The Constable was released on bail and a complaint under section 156/89‑Customs Act against him was forwarded to the Custom Authorities at Nowshera for taking necessary action. The appellant being Constable No. 121, was charge‑sheet by the A. I. G., Police, Railways, Punjab Lahore on the charge that he while posted at R. O. P., Gujranwala wilfully absented himself from the place of his duty on the pretext of effecting the service of a warrant as per Daily Diary Report No. 7 dated 29‑5‑72 of R. O. P., Gujranwala, and that he was arrested in a case under section 156/89, Customs Act by the Railways Police, Nowshera and that he recorded a false report on the Daily Diary. The appellant in reply stated that he had, in fact, proceeded to effect the service of the warrant issued by the Court of A. D. C (G), Gujranwala in the name of one Piran Ditta, resident of village Chaba Sindhwan, Qila Dedar Singh and had returned the next morning after effecting the service through Sardar Muhammad Rafique, Chairman, Union Council Chaba Sihdhwan, as the accused was not available in his village. He further stated that since the accused was required to appear before the A. D. C. (G) on 1‑6‑72 and the A. S. I. Railway Police, Railway Outpost, Gujranwala was on leave, therefore he proceeded to comply with the warrant without his permission. This reply of the appellant do not satisfy the Department and an enquiry was instituted in which A. S. I. Mohammad Ashraf, the then Incharge, R. O. P., Gujranwala, Syed Ghani, Head Constable No. 39, Incharge R.O.P. Nowshera and Mahabat Khan, Constable No. 151, Nowshera were examined. Syed Ghani and Mahabat Khan identified that the appellant was arrested and he gave his name as Muhammad Siddiq, but he saw his belt No. 121, Railway Police, Lahore and entered the description in the relevant Police papers accordingly. Mahabat Khan also deposed that the appellant was released on bail as per entry contained at serial No. 9 in the R. O. P. Nowshera Daily Diary, dated 29 5‑

72. The appellant produced two defence witnesses, namely. Ghulam Yasin Cons. No. 310, Naib Court of the A. D. C. (G), Gujranwala, who states that the warrant was issued by the Court of A. D. C. (G) but was wrongly sent to the Railway Police Post, Gujranwala instead of P. S. Qila Dedar Singh, district Gujranwala by the Clerk of Court for service. He also deposed that Piran Ditta appeared in the Court on 1‑6‑72 on the date of hearing as directed under the warrant. The second defence witness Mohammad Rafiq, Ex‑Chairman, Union Council, Chaba Sidhwan also supported the appellant that on 29‑5‑72 the appellant came to the village for service of warrant to Piran Ditta accused, who was not present in the village. However, he did not admit that the report on the back of the warrant was made by him. The Enquiry Officer after appraising the evidence came to the conclusion that the appellant was guilty and disbelieved the defence evidence. On the basis of the aforesaid Enquiry Report, a show cause notice dated 17‑10‑72 was served upon the appellant proposing the punishment of dismissal from service. After taking into consideration the reply of the appellant dated the 28th October 1972, to the show‑cause notice, the A. I G., Police, Railways, on 27‑11‑72 dismissed the appellant from service. The appellant filed a departmental appeal against the dismissal to the I. G., Police, which was rejected on 19‑3‑73 holding that the ex‑Constable was caught red‑handed with smuggled betel leaves. A case under relevant Customs Law was instituted against him by the Nowshera Police. The defence was held to be an afterthought and thus not convincing. The appellant moved a revision petition which was also rejected on 6‑6‑

73. He further made a representation to the I. G., Police on 20‑9-73 which was also rejected on 12‑11‑

73. This appeal was filed by the appellant before this Tribunal on 6‑2‑75, The appellant also filed an application for the condonation of delay on the ground that he remained sick for about a year and could not move from the bed. According to the medical certificate the appellant remained under treatment of Dr. Major Mohammad Sharif Rathore from 10‑11‑73 to 2‑12‑74. 1n the application the applicant further stated that after his recovery he came over to Lahore and another month was consumed in collecting the numerous documents pertaining to the case and to prepare this appeal. In the first instance, the appellant submitted that the defence witness namely, A S. I Incharge, Railway Outpost, Gujranwala was not examined and thus the appellant has been seriously prejudiced in the defence of his case. The appellant also placed reliance on the defence version of the case and pressed for the acceptance of this appeal. After hearing the appellant we are clearly of the opinion that the appeal merits to be dismissed both on the ground of limitation as well as on merits. So far as the question of limitation is concerned the appellant was required at the latest to file this appeal within six months of the establishment of this Tribunal. This Tribunal was established for the first time on 22‑7‑1974. Thus, the last date for filing the appeal was 21‑1‑

75. The application filed by the appellant assuming to be correct, explains the delay up to 10‑1‑75 only, and there is no explanation for the delay, for the period from 18‑1‑75 to 5‑4‑

75. Had the appellant filed the appeal by 10‑1‑75 or even up to 21‑1‑75 it could have been in time and thus the explanation offered by the appellant is of no avail to him. The appellant was required to explain the delay of each and every day after the 21st of January 1975 but then; is no explanation whatsoever on the part of the appellant to show that the delay incurred icy this case was on account of any cause what to speak of a reasonable caused In the circumstances, we cannot but hold that the appeal is barred by time. So far as the merits are concerned, the contention of the appellant regarding failure of the Enquiry Officer to examine the defence witnesses has already been dealt with by the Additional Inspector‑General of Police in his order dated 6‑6‑73, which is as follows:‑ "He came up with this assertion only at the sage of appeal and has not been able to produce any convincing material in support of his assertion. I am therefore, not inclined to place any reliance on this." The appellant has not been able to show that the aforesaid observations were factually incorrect. The appellant never raised this issue either in reply to the show‑cause notice or when he appeared before the Assistant Inspector‑General of Police, Railways, before, his dismissal. We do not find any good ground to disagree with the findings of the Additional Inspector‑General of Police Tile appellant has also failed to show any material prejudice caused to him as a result of the failure of the Enquiry Officer to examine the aforesaid witness. We notice that the appellant has failed to assail the evidence of Mahabat Khan, Constable, and Syed Ghani, H. C., Nowshera Railway Out Post, who arrested him re‑handed at Nowshera and identified him as such. In these circumstances, we do not think that the presence of the appellant at the Nowshera Police Station on 29‑5‑72 could he doubted is any manner. We are, therefore, amply satisfied that the defence evidence has been rightly discredited in this case. In the result the appeal fails both on point of lamination as well as on merits, and is accordingly dismissed in limine.