2002 PLP (C (PLC(CS))

Masud Ahmad Riaz for Appellant Mian Munir Ahmad, District Attorney for Respondent Date of hearing: 4th September, 2001 Briefly stated the facts leading to the appeal are that the appellant was posted as Sub‑Inspector/S.H.O., Police Station, Saddar Kamoke. Vide Report No.5, dated 17‑7‑1997 the appellant arrested one Muhammad Ilyas son of Siraj Din; caste Mistri residence of Ghania Phatakwala, old Kamoke as proclaimed offender in cases F.I.R. Nos.486 of 1987, 457 of 1986 under section 13 Arms Ordinance, 1965 Police Station, Saddar, Kamoke. In place of Muhammad Ilyas son of Siraj Din caste Faqir, residence of Ghania. On 25‑7‑1997. widow of Siraj Din produced I.D. Card and stated that Muhammad Ilyas arrested was not the real accused. Muhammad Ilyas Mistry was released.

2. The appellant was proceeded under Punjab Police (E&D) Rules, 1975 for arresting and detaining innocent person. The appellant was issued show‑cause notice on 5‑8‑1997. In reply dated 29‑8‑1997 to the show cause notice, the appellant raised the plea that he arrested innocent person as the proclaimed offender because name and parentage of the accused was the same. He further stated that he acted in good faith and got the innocent person discharge when he came to know that he was not the real culprit. The reply of show‑cause notice was not considered satisfactory. The matter was got enquired from Deputy Superintendent of Police, Kamoke. Deputy Inspector‑General of Police, Gujranwala vide order, dated 20‑12‑2000 considered the act of the appellant not only illegal but also inhuman and awarded him the major penalty of compulsory retirement from service. His departmental appeal was rejected by respondent No.2 on 24‑5‑2001. Hence this appeal.

3. I have heard the learned counsel for the appellant, District‑Attorney and have perused the record and objections to the memorandum of appeal submitted by the respondents.

4. Learned counsel for the appellant argued that the appellant acted in good faith and arresting Muhammad Ilyas son of Siraj Din, Mistry with the mistake of fact that he was proclaimed offender and wanted in 2 cases. The appellant produced the arrested person before the learned Magistrate who sent him to the judicial lock‑up. When it was proved that the arrested person was innocent, he got him discharged. Learned counsel for the appellant further argued that the appellant has been awarded the major punishment without holding the regular inquiry and the punishment awarded to the appellant on his first lapse is harsh.

5. Inspector‑General of Police vide order, dated 25‑4‑2001 has observed that the appellant did not verify antecedents of Muhammad Ilyas son of Siraj Din before arresting him and send him to judicial lock‑up in 2 cases: It is thus proved that after arresting Muhammad Ilyas son of Siraj Din the appellant brought him before Allaqa Magistrate. Muhammad Ilyas son of Siraj Din was at liberty to prove his innocence before the learned Magistrate and it was also the duty of the learned Magistrate to make verification before remanding the arresting person to judicial custody. There is nothing in the record to proof that the appellant tortured Muhammad Ilyas son of Siraj Din or demanded/receiving any money from him. There was thus no dishonesty on the part of the appellant. The appellant was thus not dishonest and the negligent act was done in good faith. There is no justification to maintain the major punishment on such a single instance. Reliance is placed upon 1993 PLC (C.S.) 1443 and 1988 SCMR 691.

6. In the light of above discussion, the major punishment of compulsory retirement from service is converted into the minor punishment of forfeiture of 2 years approved service under rule 4(a)(ii), Punjab Police (E&D) Rules, 1975. The appellant is re‑instated in service. The intervening period shall be treated as extraordinary leave without pay. H.B.T./68/PST Order accordingly.