2003 PLP (C (PLC(CS))

ABDUL GHANI SHAIKH (CHAIRMAN).

Relevant facts for the purpose of disposal of this appeal are that appellant Police Constable 857 Nazir Ahmed was posted at Judicial Lockup, Jacobabad as Police Guard was served with a charge-sheet dated 14-3-1992 issued by respondent No.3, containing following allegations: "On 7-3-1992 you alongwith other staff was on duty, while at 1915 hours 10 un-identified culprits armed with K. Koves and Pistol attacked on Judicial lock-up and then by released eight hardened criminals who were confined in the, lock-up and also taken away two G-3 rifles 3-8-1992 rifles China and two shotguns, hence it shows your negligence, cowardaness, slackness in the performance of your official duties." In his reply, Appellant denied the allegations vehemently. His reply was not found satisfactory and he -was awarded major penalty of 'Dismissal from Service' alongwith 9 others by respondent No.3 vide order dated 16-8-1992. Feeling aggrieved, he preferred departmental appeal to the then D.I.G.P. Larkana which by order dated 30-12-1992 was rejected. Appellant then submitted review petition as provided under Police rules to the respondent No. 1 which remand pending for considerable period and was ultimately rejected by order date 28-1-1999. Hence, this appeal.

2. Respondents in their respective written statements supported the impugned orders and prayed for dismissal of appeal.

3. It is contended that neither regular enquiry was conducted which in view of the nature of allegation was necessary nor the final show-cause notice was given to the appellant before inflicting major penalty upon him, which under the law is not sustainable. Next, it is submitted that one Sub-Inspector Abdul Karim Brohi was also served with the similar charge-sheet, against whom regular enquiry was conducted wherein he was not found guilty and by order dated 6-1-1993 the said S.I.P. was exonerated and re instated in service. Lastly, it is urged that appellant and 11 others which includes S.I.P. Abdul Karim Brohi were also booked in Crime No.39/1992 on the same set of allegations and they all were challaned, but by order dated 24-6-1998 they were not bound guilty and. were acquitted under section 265-K Cr.P.C. by learned IInd Additional Sessions Judge Jacobabad. In support of above contentions reliance is placed on (i) 1995 PLC (C.S.) 134, (ii) 1992 PLC (C.S.) 64 and (iii) 1993 PLC (C.S.) 396.

4. In rebuttal, learned Asstt. A.-G. supported the impugned orders and submitted that negligence, slackness and cowardness of the appellant were proved from the fact that appellant despite on duty the relevant time had not even attempted to resist the attack on the judicial lock-up. He contended that under the circumstances there was no need of conducting detailed enquiry and the same was rightly dispensed with. He, however, conceeds that in the matter of S.S.P. Abdul Karim Brohi against whom similar allegation was levelled, a regular enquiry was ordered and conducted who was not found guilty and was ordered to be re-instated in service. Also, he conceds that all the police officials were sent up to face their trial and by common order they were acquitted.

5. We have considered the above submissions, perused the record made available before us and have gone through the case-law cited at bar.

6. Perusal of the record coupled with the admission of learned Asstt. A.G., clearly reveals that respondent No.3 adopted different methods for different officials in one and same case. In the case of S.I.P. Abdul Karim Brohi a regular enquiry was ordered which was conducted by Mr. Din Muhammad Chaudhry, D.S.P./S.D.P.O. Jacobabad who in his report exonerated him, whereas in the case of appellant and some others a shortcut procedure of simple show-cause notice was adopted of which no plausible reason was assigned. This double standard and discriminatory treatment on the part of respondent No.3 by itself is sufficient to vitiate the whole proceedings. The nature of allegation certainly required a thorough probe but instated a short-cut method was adopted. Such-like procedure has been discarded by the Honourable Supreme Court of Pakistan in number of reported cases. In a case of Alamgir v. Divisional Forest Officer, Multan and others, 1993 SCMR 603, it was observed that for resolving controversial questions of facts where evidence has to be recorded and opportunity of cross-examining is to be given, proper course would be to hold a full fledged enquiry, otherwise findings recorded would be based more on conjectures then on evidence/material available on record properly produced and accepted. Had there been a regular enquiry against the appellant too, he like his co- civil servant would have been exonerated. Appellant and 11 others who were found negligent in performing their duties were also challenged in the concerned Court of law. They all faced the trial and ultimately acquitted by an order dated 24-6-1998 by learned IInd Additional Sessions Judge, Jacobabad. The learned trial Court certainly was convinced and, of the opinion that no sufficient grounds existed to proceed against the appellant. In such eventuality as observed in cases reported in 1985 SCMR 1062 and 1991 SCMR 209, no rope could be put around the neck of the appellant. As observed earlier, co-civil servant S.I.P. Abdul Karim Brohi similarly placed has already been exonerated and reinstated in service by respondent No.3 vide order dated 6-1-1993, therefore, the appellant also deserved the same treatment and no discrimination was called for.

7. For the foregoing reasons and following the dictum laid down in the cases referred to above, this appeal is accepted and all the three impugned orders dated 16-8-1992, 30-12-1992 and 28-1-1999 passed by respondent Nos.3, 2 and 1 respectively are set aside. The appellants is directed to be re instated in service. The intervening period be treated as leave of the kind due. No order as to costs.

8. Announced in open Court. H.B.T./123/KST Appeal accepted.