1984 PLP (C (PLC(CS))

3. Brief facts of the case are that the appellant while posted in Police Lines, Sargodha, was detailed for election duty in Jauharabad circle, at Polling Station in village Kotakka. The appellant on 25th September, 1979 after the polling was over, accompanied the polling officer P. S. Naushera and handed over the result of the election of the polling station "Kotakka" to Moharrar Head Constable. It was alleged that soon after the appellant changed into the civilian dress and went to village "Koridhi" P. S. Naushera in order to help Haji War Khan his real uncle who was also contesting the election. The appellant created fuss at the polling station in said village in favour of his uncle and threatened the Presid ing Officer and his staff of the said polling station, as a result of which case F. I. R. No. 59, dated 25th September, 1979 under section 186/157/148, P. P. C. was registered at P. S. Naushera against him and 17 others. The appellant was issued a show‑cause notice on 18th October, 1979 to which he submitted his reply on 24th October, 1979 which was not found satisfactt4.y. The appellant was proceeded under rule 6(3) of the Punjab Police (E & D) Rules, 1975 for which no further enquiry by way of appointment of an enquiry officer was considered necessary. The appellant was ultimately found guilty of grave misconduct and was dismissed from service with immediate effect vide order, dated 14th October, 1980 of Superintendent of Police, Sargodha. The appellant made an appeal to the Deputy Inspector‑General of Police, Sargodha Range, Sargodha which was also dismissed vide order, dated 20th September. 1981. The appellant made a revision petition to the Inspector‑General of Police, Punjab, Lahore which was duly considered and filed vide order dated 18th August, 1982. Hence this appeal.

4. I have beard the parties. It has been submitted by the learned counsel for the appellant that the appellant has been falsely implicated to the case without any fault of his. This was all done on the instance of Col. Muhammad Taj, Station Commander. Peshawar Cantonment who bad enmity with the appellant‑and his relatives. Col. Taj Muhammad took active part in the local election of village Koridhi and had managed through the polling staff to falsely implicate and get registered the case against the appellant and others at P. S. Naushera through F. I. R., dated 25th September, 1979. It was vehemently argued by the learned counsel for the appellant that a reliance be made to attendance certificate, dated 25th September 1979 given by the Presiding Officer of polling station Khotaka (attached in original with the appeal), where it has been certified that the appellant reached alongwith the Presiding Officer at Naushera Police Station at 17‑15 hours to inform the Returning Officer about the result of the polling station by wireless. Further, referring to the F. I. R. dated 25th September, 1979 (Annexure `F') the learned counsel for the appellant has submitted that it has been mentioned therein that the appellant created fuss at the Polling Station Koridhi, 7 miles away from P. S. Naushera. at 5‑30 p. m. It is impossible to reach at Koridhi, located at a distance of 7 miles from P. S. Naushera within 1 S minutes as the appellant was present at P. S. Naushera according to the above certificate of the Presiding Officer at 17‑15 hours. This proves that the appellant was falsely dragged into this affair when he was actually not present at Polling Station "Koridhi." He has also referred to the following contents of the F. I. R. :‑ It has been pointed out by the learned counsel for the appellant that it is clear from the above that the names and addresses of the appellant and other co‑accused were given in the F. I. R. by the Presiding Officer falsely and incorrectly on the instance of rival contesting parties. Relying on the judgment dated 11th February, 1981 of the Allaqa Magistrate, Ch. Muhammad Aslam, it was submitted by the learned counsel for the appellant that on acquittal of the appellant by the Court, the only basis on which the appellant was dismissed from service, has fallen to ground by the judgment of the Court of competent jurisdiction which still holds the field and in the absence of regular enquiry which was not conducted to this case, the impugned orders cannot be sustained. Concluding his arguments the learned counsel for the appellant prayed that the respondents have failed to prove the charges against the appellant and the impugned orders are liable to be quashed and set aside.

5. On the other hand, the learned District Attorney has relied on the parawise comments submitted by the respondents and also F. I. R. No. 59, dated 25th September, 1979. It has been submitted by him that the parawise comments have rebutted each and every stand taken by the appel lant's counsel. As the misconduct has been proved against the appellant, hence his dismissal from service is in order and lawful.

6. I have given my anxious thought to the arguments of the parties and have also perused the record in this case. It is an admitted fact that the appellant was available on 25th September, 1979 at P. S. Naushera at 17‑15 hours. I have also gone through the parawise comments submitted, on the explanation tendered by the appellant in reply to show‑cause notice, to the Superintendent of Police, Sargodha vide letter No. 9251‑35, dated 27th November, 1979 by Mr. Waseem Kausar, Assistant Superintendent of Police, Jauharabad. These comments admit the following facts :‑ (i) That the appellant was present at P. S. Naushera at about 5‑20 p m. on 25th September, 1979. (ii) The statement of Anwar Hussain,' Driver attested by A. S. P., Jauharabad is available on record as Annexure B' with these comments to show that the appellant boarded the bus at P. S. Naushera at 5‑45 p.m. and dropped out from the bus at "Koridhi Mor." at 6.00 p.m. on 25th September, 1979. The above two facts himself verified by the Assistant Superintendent of Police, Jauharabad have vital bearing on this case of the appellant. It has been clearly mentioned in the F. I. R. that the appellant was available at "Koridhi" polling station at 5‑30 p.m. on 25th September, 1979. The comments of the A. S. P., Jauharabad has made the matter doubtful. The bus driver certified that the appellant reached "Koridhi Mor" at about 6‑00 p.m., wherein it has been categorically mentioned in the F. I. R. that he was available at the Polling Station. Koridhi at 5‑30 p.m. Furthermore, it has been mentioned in the F. R. that the addressees of the appellant and other co‑accused whose names were mentioned in the F. I. R., were not known to the Presiding Officer at the time of the occurrence but were found later on. These facts have created a doubt and also the evidence so produced has failed to prove that the appellant was ever present at the "Koridhi Polling Station" and it appears that the appellant was falsely implicated in the case. I have also perused the preliminary enquiry report of Mr. Shaukat Javed, A. S. P., Headquarter, Sargodha, dated 11th February, 1980 who was deputed to find out the truth in the matter. This report is incomplete, is based on conjectures, surmises and not been concluded properly. Thus, no reliance can be made on this report as well. The following sentence of the concluding para. of this report of this investigation officer has left much to be guessed and interpreted;

Thus, I consider that both the Police Officers i.e. A. S. P., Jauharabad and A. S. P., Headquarter, Sargodha have failed to prove the charges against the appellant Furthermore, I agree with the learned counsel for the appellant that the basis on which the appellant was dismissed from service has fallen to the ground on acquittal of the appellant by judgment dated 11th February, 1981 of Allaqa Magistrate, the Court of compete" jurisdiction which still holds the field, and in the absence of regular enquiry which was must in this case, the impugned orders cannot be sustained.

7. Keeping the above analysis in view, the result is that the appeal is accepted. The impugned orders are set aside, as being of no legal effect and direct that the appellant be re‑instated in service from the date of dismissal, as if he had not been dismissed from service at all, with all back benefits. There will be no order as to costs. A. E. Appeal accepted.