P L D 1961 (W (PLP)

A. R. CHANGEZ, J.--‑Sardar Ali Bhatti petitioner is employed as a clerk class 11, in the North Western Railway, at Lahore. 1n the month of December 1955, some murders took place in the petitioner's village and in that connection he and some others were arrested for offences punishable under sections 148 and 302/ 149, P. P. C. He was placed under suspension on the 9th of December 1955. The challan was put in the Court of Sheikh Muhammad Khalid, Magistrate 1st Class who held the inquiry. After recording the evidence in the case, he discharged 411 the accused under section 209 of the Code of Criminal Procedure vide his order dated the 29th of September 1956. The petitioner was then reinstated on the 13th of November 1956. On his reinstatement his period of suspension was treated as under :‑ (a) One month and fourteen days as earned leave. (b) Four month as leave on half pay. (c) The remaining period as leave without pay. This order was passed under clause (b) of rule 2044 of the Pakistan Railway Establishment Code, Volume

11. Feeling aggrieved by the order of the railway authority concerned, the petitioner has filed this writ petition whereby he has challenged the above mentioned order. He has asked for the following reliefs:-- "It is, therefore, prayed that an appropriate writ, order or direction be issued to the respondent directing him to treat the petitioner's period of suspension from 9th of December 1955 to 12th of November 1956 as period spent on duty and allow the petitioner all the emoluments appurtenant to his office as clerk class II, North Western Railway, under the provision of rule 2044 (Fundamental rule 54) (Applicable to the Central Government employees)."

2. Learned counsel for the petitioner has urged that his case falls under clause (a) of rule 2044 and not under clause (b). For the purposes of deciding the question' involved in this petition it seems desirable to quote rules 2043 and 2044 in extenso :‑ "2043. (F. R. 53) pay during suspension.‑A railway servant under suspension is entitled to the following payments‑ (a) In the case of a warrant officer who is liable to revert to military duty, to the pay and allowances to which he would have been entitled had he been suspended while in military employment. (b) In the case of railway servants other than those mentioned in clause (a) above the subsistence grant at such rate as the suspending authority may direct, but not exceeding one‑fourth of the pay of the suspended railway servant: Provided that the suspending authority may direct that the Government servant under suspension shall be granted in addition such compensatory allowances as the Governor General may sanction by general or special order for issue under this proviso." "2044. (F. R. 54) Pay after reinstatement.‑When the suspension of a railway servant is held to have been unjustified or not wholly justifiable or when a railway servant who has been dismissed, removed or suspended is reinstated, the revising or appellate authority may grant to him for the period of his absence from duty‑ (a) if be is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended, and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal removal or suspension ; or (b) if otherwise such proportion of such pay and allowances as the revising or appellate authority may prescribe. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so directs." It will be seen that clause (a) of rule 2044 applies if the employee is honourably acquitted and even then the discretion is given to the revising or the appellate authority to grant to him for the period of his absence from duty the full pay to which he would have been entitled if he had not been dismissed, removed or suspended, and if his case falls under clause (a) it automatically follows that the period of absence from duty is treated as a period spent on duty.

3. The first question which arises for determination is whether the decision of the competent authority that the petitioner was not honourably acquitted can be inquired into by this Court in the exercise of writ jurisdiction. Learned counsel for the petitioner has conceded that it is the function of the revising or the appellate authority to decide whether a person is honourably acquitted or not. But he has contended that as the petitioner was discharged by the committing Magistrate for lack of judicial evidence, therefore, the authority concerned could not have held that he was not honourably acquitted. The learned Magistrate while discharging the petitioner and his co‑accused under section 209 of the Code of Criminal Procedure has observed as follows:-- "From the evidence on record, it appears that as both the parties were in jail together for a considerable time and both of them were involved in serious offences and were fearing bad consquences, they probably have effected a compromise and have decided not to support the prosecution in both the cases. The result is that there is absolutely no evidence worth the name on the record to connect any of the accused with the murders of SardAr, Karamali and Imam Din. There is no recovery in this case and no other corroborative piece of evidence. It is no doubt a pity that the P. Ws. have resiled from their statements with a definite motive to help the accused but there is no judicial evidence on record except rumours and surmises and, therefore, I have no option but to discharge the accused and therefore discharge all the above mentioned accused under section 209, Cr. P. C." In the first information resport Exh. P. D. which was lodged by one of the eyewitnesses, namely, Allah Ditta, it was specifically mentioned that Sardar accused was armed with a gun and he had fired his gun, but at the inquiry stage Allah Ditta P. W. stated that in fact he had not seen the occurrence and that what he had stated in the first information report was Based on the information received by him from the people who were standing at the spot. It appears that the authority concerned had taken into consideration all these facts in coming to the conclusion that the petitioner bad not been honourably acquitted.

4. The expression `honourably acquitted' is not defined in the rules or anywhere else. We shall, therefore, give the same meaning to it as it conveys in its ordinary and naturall sense. Its ordinary meaning is that it has been found that the person concerned had been accused of the offence maliciously and falsely, any that after his acquittal no blemish whatsoever attaches to him. In cases where the benefit of the doubt is given to him or where he is acquitted because the parties have compromised or because the parties on account of some extraneous q influence have resiled from their statements, then we think that in spite of the acquittal the person concerned cannot be deemeal to have been "honourably acquitted". This expression is not recognised in the Code of Criminal Procedure. There only the word `acquittal' is used. It is, therefore, obvious that it is not the function of the Criminal Court to declare that the person concerned has been honourably acquitted or not. Having regard to the scope and meaning of the aforessaid rule, we think that it is for the revising or appellate authority to form its opinion on the material placed before it, whether such a person has been honourably acquitted or not. It is left to the absolute subjective discretion of the authority. If the authority takes the decision by B using its discretion and judgment, that the person concerned has not been honourably acquitted, then in exercise of jurisdiction this Court cannot convert itself into a Court o appeal and substitute its opinion for the opinion of the competent authority. But in the circumstances of the present case, and in the light of what has been stated above as to the meaning of the expression `honourably acquitted' it is difficult to hold even if we had the power to substitute our opinion, that the decision of the competent authority is wrong.

5. There is another obstacle in the way of the petitioner which is equally formidable. According to the rule, it is left to the discretion of the competent authority to grant full pay of not, to the employee concerned for the period of his absence from duty, even though the authority may come to the conclusion that he has been honourably acquitted. The reason for this rule is so patent that it need not detain us for long. During the period of absence the employee does not perform any duty. The authority concerned is bound to suspend such a person because rule 1711 of Pakistan Railway Establishment Code, Volume I, provides, that as soon as a railway servant is arrested or committed to prison, he shall be suspended. The suspension in these circumstances cannot, therefore, be said to be unjustified, and no blame can be attached to the Railway Department for it. It is for these reasons that the discretion is given to the authority concerned whether to grant full pay to such an employee or not for the period of his absence from duty.

6. If the intention of the rule‑making authority was to make it obligatory, it would have been so stated expressly in the rule by using the word "shall" instead of the word "may" Rule 2043 provides that a railway servant under suspension is entitled to the payment mentioned in clauses (a) and (b) of the rule. This clearly shows that it is obligatory on the authority concerned to give pay to the employee concerned as provided in this rule: But in rule 2044 the word "may" has been purposely used leaving it to the discretion of the revising or appellate authority to grant full pay or otherwise as it deems fit. It is not the case of the petitioner that the order had been passed by the authority concerned mala fide or capriciously or arbitrarily: If that had been the case then this Court would have had they jurisdiction to interfere with that order, because in that case thet order would not have been passed under the rule, and would have been void and illegal. Having regard to the provision of rule 2044, we are clearly of the opinion that no legal right vests in the petitioner and no corresponding statutory or public duty is involved.

7. In any case, the object of this petition is to get all the emoluments appurtenant to his office as clerk class II for the period of his suspension. Learned counsel for the petitioner has conceded that in view of the decision of the Supreme Court ink The State of Pakistan and another v. Mehrajuddin (P L D 1959 S C (Pak.) 147) the petitioner cannot ask this Court to issue a writ of mandamus to the respondent to pay the emoluments to the petitioner. He has, however, contended that a writ of mandamus can be issue a directing the respondent to treat the period of absence from' duty as a period spent on duty. It seems plain to us that this is only a consequence which automatically follows, if the authority concerned decides that the case falls under clause (a) of rule 2044. It is not an independent provision and no separate order is required to passed. As we have come to the conclusion that no writ of mandamus can be issued as regards the grant of pay etc. so we are of the opinion that in the circumstances of the present case no writ of mandamus can be issued directing the respondent to treat the period of the absence of the petitioner from duty as a period spent on duty.

8. For the reasons stated above, we find no merit in this writ petition which is hereby dismissed, but there will be no order as to costs. A. H.Petition dismissed