2001 PLP 789 (SCMR)

TANVIR AHMED KHAN, J.

Leave to appeal is sought against the judgment, dated 20-10-1998 whereby the Punjab. Service Tribunal accepted the appeal of the respondent and set aside the order of his dismissal passed by the competent Authority on 15-9-1994.

2. Facts briefly are that the respondent was appointed as Assistant Sub Inspector of Police on 21-3-1990. There was a complaint against him that he committed Zina-bil-Jabr with two ladies. This application was firstly entrusted to S.P. Special for preliminary inquiry who recorded the statements of 13 persons including the police officers posted at Police Station Gujjarpura. The complainant Khurshid Bibi during the preliminary inquiry reiterated her stance taken by her in the complaint. Thereafter, the respondent was charge-sheeted on 27-3-1994. Alongwith the charge-sheet he was also provided statement of allegations. The operative part of the statement of allegation is as under:-- "At about 1-30 a.m. on the night between 15/16-3-1994 when she was sleeping in his house, T/A.S.-I. Tariq knocked the door and on opening the same, he came in drunk and said that her daughter Mst Shamim Cheeman should accompany him to the P.S. for Zina purpose. When she refused to do so, he forcibly took Mst. Khurshid Bibi to Police Station Gujjarpura where he was posted, drank more liquor in his room and then started raping and doing unnatural offence with her till morning. She was got released by A.S.I. Sain Muhammad at about 10-00 a.m. next day."

3. The respondent submitted his reply whereafter a regular inquiry was conducted by S.P., Model Town who recorded the statements of two ladies. However, this time they denied the commission of Zina-bil-Jabr with them by the respondent A.S.-I. They took up the stance that the miscreant was some other person with different height and stature. The respondent in the inquiry took up the stance that the complainant's family was dealing in narcotics. Since he was checking their misdeeds, as such, he was falsely implicated in this case. The .S.P., Model Town accordingly submitted his report on 10-5-1994 exonerating the petitioner from the charges.

4. The S.S.P., Lahore being the authority took up the matter and after going through the report of S.P., Model Town as well as S.P. Special who earlier held that preliminary inquiry, came to the conclusion that the respondent was a habitual criminal and did not deserve to be retained in Police Department. He also took into consideration the following three cases registered against him at Police Station Gujjarpura:-- (1) F.I.R. No.57 of 1994 under sections 13/20/65, A.O. and 4/PHO. (2) F.I.R. No.58 of 1994 under sections 11/7/79 Hudood and 506, P.P.C. (3) F.I.R. No.59 under sections 10/11/7/79, Hudood 506/452/342/337. Keeping stock of all these factors he dismissed the respondent from service vide his order, dated 15-9-1994.

5. The respondent made a departmental representation which was rejected by the D.I.-G., Lahore after giving personal hearing to the respondent vide his order, dated 1-2-1996. the I.-G., Punjab also dismissed his revision petition vide order, dated 31-5-1997.

6. Thereafter, the respondent filed an appeal before the Punjab Service Tribunal which was accepted through the impugned judgment, dated 20-10-1998 and the order of dismissal of the respondent passed on 15-9-1994 by the S.S.P. was set at knot.

7. We have considered the contentions and have gone through the impugned judgment as well as the documents appended with this petition. We must say at the very outset the: Punjab Service Tribunal passed the impugned judgment in a slipshod manner without adverting to the law holding the field in this respect. It has mainly been swayed by the acquittal of the respondent on technical ground in three criminal cases registered against him. Much importance has been given by the Tribunal to the regular inquiry conducted by S.P., Model Town who only summarily recorded the statements of two ladies wherein they took complete somersault and stated that they were not raped by the respondent as the miscreant was some other person with different physique. No credence whatsoever was given to the preliminary inquiry conducted by the S.P. Special who examined as many as 13 witnesses. He not only examined two ladies in his preliminary inquiry but also private persons inclusive of Police Officers of the said Police Station. All of them fully supported the stance of the complainant and it came on record that the respondent was a roan of bad character, drunkard and was indulging in activities unbecoming of a police official. It was also noted by the competent Authority that he was earlier discharged from service on two allegations i.e. allegedly beaten up a Tractor Trolly driver and was also found involved in a case of dacoity in Arshad Jewellers Shop. However, his penalty of discharge was subsequently converted into forfeiture of two years of his approved service on an appeal.

8. The acquittal in criminal cases does not debar the departmental authorities to take action against the delinquent in accordance with law and Rules. Such acquittal does not give to delinquent clean certificate of his absolvement from the departmental proceedings. Both the proceedings can go side by side as their nature is totally different: The criminal proceedings are conducted respecting the case registered against the delinquent' while the departmental proceedings are regarding the charges of malversation and misconduct. In PLD 1985 Supreme Court 134 (The Deputy Inspector General of Police, Lahore and others v. Anis-ur-Rehman Khan), in a case of identical nature it was observed as under:-- "As regards the scope of two proceedings it has to be noted that the criminal trial of the. appellants was on a case registered under section 342/354/376/511, P.P.C. In more comprehensible terms it implied an attempt on the part of appellants to wrongfully confine a lady and attempt an assault or use criminal force with a view to outrage her modesty and to commit rape on her. These charges would fail if the lady concerned at the proper stage made a statement that she was a consenting party to all that happened. The charge against the appellants in the discipline inquiry was one of maiversation and misconduct against one and of abusing her and escorting her to a residential portion of Anisur Rehman the co- appellant against the other. The word 'malversation' has the meaning 'corrupt behavior in position of trust; corrupt administration (of public money etc.)'. Its root is in Latin 'male' meaning badly and versari meaning 'behave'. 'Corrupt' has the meaning 'rotten, depraved wicked, influenced by bribery" (Concise Oxford Dictionary). 'Misconduct' has been defined in clause (iii) of rule 2 of Punjab Police (Efficiency and Discipline) Rules, 1975 under which the appellants were proceeded against. It read as follows:-- "

2. Definitions.

In these Rules, unless the context otherwise requires-- (i) . (ii) (iii) 'misconduct' means conduct prejudicial to good order or discipline in the Police Force, or contrary to Government Servants (Conduct) Rules or unbecoming of a Police Officer and a gentleman, any commission or omission which violates any of the provisions of law and rules regulating the function and duty of a Police Officer to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government Officer in respect of any matter relating to the appointment, promotion; transfer, punishment, retirement or other conditions of service of a Police Officer; (iv) (v) These charges of malversation and misconduct have nothing directly to do with the criminal charge or with the consent or the willingness of the victim. It is a charge relatable to the functionary and the service discipline within which he works. The Tribunal, it appears, with respect, was clearly in error in assuming that the two charges were co-extensive and inter-connected that the judicial trial was the proper alternative and once having been resorted to the departmental inquiry should not have been held and the trial should have served as a substitute for departmental inquiry." Reliance is also placed on 1996 SCMR 315, Mire Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others, where it was held as under: "What happened in the present case was that depart proceedings and the criminal proceedings were taken out separately against the petitioner. His acquittal in the criminal case, therefore, does not justify the setting aside of the punishment awarded to him in consequence of the departmental proceedings. If departmental proceedings had been taken out on the basis of his conviction in the criminal care and his conviction had ultimately been set aside by any forum higher than the one which had convicted him, the position would have bees different. Since the departmental action -against the petitioner was, initiated independently of the criminal case, registered against him, his success in the criminal case would not nullify the outcome of the departmental action. In this view, of the matter, removal of the petitioner, which was ordered as a result of the departmental proceedings cannot be set aside on the score. Of his acquittal in the criminal proceedings." In PLD 1987 Supreme Court 195, Muhammad Ayub v. The Chairman, Electricity Board, WAPDA, Peshawar while discussing the principle of double jeopardy as envisaged under Article 13 of the Constitution of Islamic Republic of Pakistan, it was held as under:-- "Hence any penalty imposed on a civil servant as a consequence of departmental proceedings under the Efficient and Discipline Rules, after the accused officer has been acquitted of a criminal charge is not barred.

9. In the case in. hand it is reflected from the record that when the raid was conducted by the S.P. Special in connection with the preliminary, inquiry, he found a bottle of liquor and an unlicensed loaded pistol in the possession of the respondent for which he could not give any explanation. As already stated many Police Officers posted at, Gujjarpura Police Station not only supported the case of the complainant/ladies but they have also levelled allegations of serf us nature which are totally unbecoming of a police official. One thin must not be forgotten-that the respondent belongs to a disciplinary to whose duty is not only to maintain law and order but also to protect the rights, honour, liberty and dignity of the citizens.

10. Wilson in his book "Police Administration" has stated that the basic duty of the police force is to serve the mankind and to protect their honour and dignity. The add function of the police is to be on watch for anti-social activities and to apprehend the offenders as soon as possible. Their duties and functions are expanding with the passage of time and in modern computer age they have got tremendous responsibilities. They ate the, watchmen (Chowkidars) of "Chadar"'and "Chardewari". If the Chowkidars themselves start indulging in illegal immoral activities of this nature and trample the rights of the weaker, then the very existence of the society would be at stake. In this respect saying of Hazrat Ali (Karam Allah Wajhoo) would be very apt when he stated "A State can exist with ' Kufr' but not with Zulm'. There is grate hue and cry in the public that those who are custodians of their rights are trampling the same with impunity. Such-like persons do not deserve to be retained in the police force particularly the respondent who was even earlier discharged from service and his punishment was subsequently converted into forfeiture of two years' approved service. He. however, did not learn any lesson and again started misusing his official position.

11. In view of what has been stated above, we convert this petition into an appeal and set aside the judgment dated 20-10-1998 of the Punjab Service Tribunal. Q.M.H./M.A.K./I-27/S Appeal allowed.