2007 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

This petition has been directed against the judgment, dated 27-9-2003 passed by the Punjab Service Tribunal, whereby appeal of the petitioner against the penalty of' dismissal from service imposed upon him by the Senior Superintendent of Police, Rawalpindi, was dismissed and order of the Departmental Authority was upheld.

2. The petitioner was proceeded against for the charge as under:-- "S.P./City has reported that you remained in touch with the inquiry of' case F.I.R. No.103, dated 4-4-2001 under section 381-A, P.P.C. Police Station New Town for long time. You are also sent to Gilgit from where the stolen car in question was recovered and brought to Police Station New Town. You wrote the recovery memo. of the witnesses and did not get this recovery memo. signed by the witnesses. Resultantly, the accused were discharged on the plea that recovery memo. was not signed by the witnesses which shows your inefficiency and gross misconduct."

3. The petitioner in his capacity as Investigating Officer of a case registered under section 381-A, P.P.C. at the Police Station, New Town, Rawalpindi recovered the stolen vehicle from Gilgit. The accused in the said case on arrest was produced before a Magistrate for his physical remand and the Magistrate vide order, dated 23-5-2001, instead of giving physical remand of the accused to the police discharged him on the ground that there was no incriminating evidence on record to connect him with the commission of offence and this order of the Magistrate having been not challenged before the next forum attained finality. Subsequently the departmental proceedings were initiated against the petitioner for the charge of negligence on the ground that he having not obtained the signature of the witnesses on the recovery memo. of the stolen vehicle, destroyed the evidence of recovery as a result of which the accused was discharged by the Magistrate. The order passed by the Magistrate is read as under:-- "Present accused is neither named in the F.I.R. nor anybody has seen him while taking away the car nor the car was recovered from the accused, moreover, no incriminating evidence is on record against the accused, therefore, he is discharged from the case. He be released forthwith if not required in any other case. The recovery memo. is not signed by the witnesses."

4. The perusal of the order of the Magistrate would show that the accused was discharged for the reason that no incriminating evidence whatsoever was brought on record to connect him with the commission of offence and not only for the reason that recovery memo, was not signed by the witness. It may be seen that the petitioner who recovered the stolen vehicle was also a competent witness and without examining the recovery witnesses, it would be difficult to ascertain the question of admissibility of their evidence. The learned Assistant Advocate-General, Punjab, without satisfying us that the defect in the recovery memo. was the sole basis of the order of Magistrate, contended that notwithstanding the fact that the order was passed by the Magistrate for different consideration, the charge of negligence against the petitioner of not obtaining the signature of witnesses on the recovery memo. stood established beyond doubt. It may be seen that accused was acquitted by the Magistrate on the ground that there was no evidence to connect him with the crime, therefore, it would not be fair to shift the burden of the weakness of the prosecution case to the petitioner and held him responsible for the discharge of accused. The defect in the investigation may not be a valid ground for discharge of an accused but insufficiency of evidence is definitely a strong ground to, discharge a person from criminal charge and it is clear from the order of Magistrate that accused was discharged for want of evidence and not only for the defect in the recovery memo. or in the investigation. The omission of the petitioner as an Investigating Officer of the case in not obtaining the signature of the witnesses on the recovery memo. may or may not be a factor to damage the prosecution case but in absence of any evidence that the omission of not obtaining the signatures on the recovery memo. was intentional, it would be treated as a bona fide mistake which may not constitute an act of misconduct.

5. In the light of foregoing reasons, we convert this petition into an appeal and set aside the judgment of the Tribunal. The appellant shall be reinstated in service but he shall not be entitled to the back benefits, and the intervening period shall he treated as leave without pay. This appeal is allowed in the above terms with no order as to costs. S.A.K./R-5/SC Appeal accepted.