2016 PLP 2057 (SCMR)

AMIR HANI MUSLIM, J.

Through the instant proceedings, Petitioner has called in question his suspension ordered in Criminal Appeal No.151 of 2006.

2. The facts in nutshell are that initially a Criminal Appeal No.151 of 2006 was filed before the Sindh High Court on 20.02.2006 by accused Khalid Mehmood and Alam Zaib against their conviction recorded on 04.02.2006 by the learned II-Additional Sessions Judge, South West, Judicial Court Complex, Karachi. On 22,03.2006, the sentence of accused Alam Zaib was suspended and he was released on bail. The matter was fixed in High Court at times and was adjourned for one or the other reasons. On 02.05.2016, the learned High Court had issued NBWs against accused Alam Zaib and his surety, to be executed by the SHO P.S Garden, who is Petitioner in these proceedings. The matter was fixed on 17.05.2016, when the Petitioner SHO appeared before the Court and sought further time for execution of the NBWs. The matter was posted for 25.05.2016. On 25.05.2016, the Court was informed by the SHO that accused Khalid Mehmood has been killed, upon which the Court directed him to furnish material. The matter was adjourned to 01.06.2016 with the direction to the Petitioner to execute NBWs against accused Alam Zaib and produce him in Court.

3. Perusal of R&Ps further reveals that on 31.05.2016, on an urgent application made by the accused Alam Zaib, the matter was fixed in Court. The record further reflects that the accused did appear before the Court, but at the time when the matter was taken up after Tea-Break, he scared his presence. On 01.06.2016, the SHO appeared along with father of the accused, which apparently annoyed the Court and it was observed in the order that instead of producing accused Alam Zaib, the Petitioner has produced his father, which was contrary to the principles of criminal administration of justice. The Court placed under suspension the Petitioner and the SSP City was directed to conduct enquiry against him. However, no time frame was fixed for the conclusion of the enquiry. The record further shows, that on 07.06.2016, the Petitioner produced accused Alam Zaib in Court; upon which another Judge of Court passed the following order: "07.06.2016 Mr. Sahib Khan Buneri, advocate for the appellant. Appellant No.2 Alam Zaib produced in custody. SHO Imdad Ali Khawaja, P.S. Garden. Learned counsel for the appellant contended that the appellant was convicted vide Judgment dated 04.02.2006, by the learned II-Additional Sessions Judge, South West, Judicial Court Complex, Karachi, against which he filed instant Criminal Appeal on 20.02.2006. Subsequently, appellant was enlarged on bail by this Court and he has been appearing before the Court regularly; that due to serious sickness, he remained absent from this Court on six dates, however, yesterday he voluntarily appeared before the concerned police; that applicant has already filed application for condonation of his absence as he intends to proceed with instant appeal and he is ready to furnish a fresh surety. Learned APG extended no objection to the grant of instant application. Considering the above circumstances, application for condonation of absence stands allowed and the appellant is directed to furnish another surety in the sum of Rs.200,000/- with P.R. bond in the like amount to the satisfaction of the Nazir of this court. If appellant furnishes surety before the Nazir of this Court today, he may be release forthwith, however, in case of failure to deposit the surety, he may be remanded to central prison Karachi. Issue notice to previous surety under section 514, Cr.P.C. through concerned SHO. Learned APG contended that Imdad Ali Khuwaja. SHO P.S Garden has complied with the order passed by this Court in letter and spirit, and has produced appellant in custody before this Court today, hence, in the prime interest of justice and by taking lenient view, his suspension order issued by this Court on 01.06.2016 may be recalled. Order accordingly. S.S.P City is directed to recall suspension order of Inspector Imdad Ali Khuwaja and he may be restored to its original position or otherwise."

4. In the aforesaid order, the suspension of the Petitioner was recalled, whereas, accused was directed to furnish another surety. This order does not reflect that the enquiry ordered by the Court on 01.06.2016 should be terminated or not but from the tenor of the order it appears that Petitioner was allowed to be restored to his office. On 12.08.2016, the matter was fixed for hearing of the main case before the Bench, which passed the order on 01.06.2016 of suspension of the Petitioner. The learned judge on 12.08.2016 recalled the order passed by the other Bench on 07.06.2016 and ordered suspension of the Petitioner inter alia on the ground that during enquiry, a police officer should not continue to hold office and therefore, the Petitioner was ordered to be placed under suspension. The order dated 12.08.2016 is reproduced as under: "12.08.2016 Appellant is present, his counsel called absent. Ms. Rahat Ahsan, DPG along with Faizullah, SSP City.

SSP Faizullah, present in Court, has gone through the entire order passed by this Court on 01.06.2016 and concedes that the order of inquiry against SHO has not been complied with. In his written explanation he has stated that within 24 hours of passing of the said order, he has marked the inquiry to S.P. Shehla Qureshi. Reply filed by SSP is taken on record. It is indeed very unfortunate that in the order dated 01.06.2016 SSP was directed to hold an inquiry and submit report within 03 days and even after two months, the inquiry, if any, seems to be incomplete as in the last line of his explanation, the SSP City has requested to extend time. It appears that SP, who was marked inquiry, has failed to discharge her duties and has not given due respect to the orders of the Court. Be that as it may, as a matter of last chance, inquiry should be initiated forthwith and as per Service Rules this court believes that during the inquiry about the conduct of an officer/government employee such officer is not supposed to continue to hold the office when he is facing an inquiry about his performance in discharge of his/her official duties. SSP undertakes that during inquiry the concerned SHO Imdad Ali, PS Garden will remain suspended as it is also requirement of service rules. The inquiry should not be confined to the conduct of SHO in this particular Criminal Appeal No.151/2006 as reflected in the order dated 01.06.2016 but also towards his over all performance in discharging his duties as SHO. Comprehensive inquiry should be conducted and report be submitted as soon as possible with proper conclusion. The conclusion should be supported with documents and evidence for perusal of the Court so that no favoritism should be reflected in the inquiry. Adjourned to a date in office."

5. We have perused the R&Ps in Criminal Appeal No.151 of 2006, which was called by us and have heard the learned Counsel for the Petitioner as well as the Advocate General Sindh. Once an order is passed by one Bench, the other Bench cannot review such an order ordinarily. In proceeding with the matters in criminal jurisdiction, the High Court does not have the power to review an order. In the case in hand, the order passed on 07.06.2016 by a Bench, by which the suspension of the Petitioner was recalled, was passed apparently that the object of procuring attendance of the accused has been achieved, therefore, the bench thought in its discretion that the suspension order of the Petitioner be allowed to be withdrawn, but at the same time it does not mean that the order for initiating departmental enquiry against the Petitioner stood terminated. In fact SSP, who is present in court, was directed to initiate enquiry by order of High Court passed on 01.06.2016 and in the first instance he has failed to comply with the order and instead has entrusted the enquiry to S.P. which was not proper. The S.P in turn also slept over the file and did not conclude the enquiry in terms of the order dated 01.06.2016 of the Court. The conclusion reached by the S.P in the enquiry was also vague. She merely recommended departmental action against the Petitioner without recording findings into his guilt.

6. We are of the considered view that the SSP was also not vigilant in complying with the order of the High Court passed on 01.06.2016. The impression gathered by the S.S.P City that after the suspension order was recalled on 07.06.2016, no further enquiry was required was erroneous.

7. We are also not in agreement with the observations made by the learned Judge in the order dated 12.08.2016 that if an enquiry is initiated, the officer must be placed under suspension. This is the discretion of the competent Authority and the discretion can be exercised considering relevant factors in the enquiry. Under Police Rule 16.19, during the enquiry against a police officer, who is involved in a criminal case, such police officer needs to be placed under suspension in order to avoid his influence. Therefore, the perception that an officer who is facing enquiry must be placed under suspension is against the spirit of service rules. Even otherwise, it is never encouraged that the High Court in collateral proceedings can step in the shoes of the competent Authority by ordering suspension of 'civil servant' while directing initiating of departmental inquiry. The discretion in regard to placing an officer under 'suspension' falls with in the domain of competent authority under the service law, and in case the competent Authority considers and or anticipates that during enquiry, the officer may tamper with the evidence or influence the witnesses or act in a manner to prejudice the outcome of the enquiry, the competent authority may suspend such officer. The learned Judge of the High Court lost sight of the fact that jurisdiction of the High Court is barred under Article 212(3) of the Constitution in relation to the terms and conditions of a civil servant besides the fact that while hearing a criminal appeal, High Court cannot pass order of suspension of police officer in a collateral issue but can always recommend for enquiry against him if his conduct during the course of hearing appears to be unbecoming of a police officer.

8. We are also shocked to notice that the learned Judge on 12.08.2016 reviewed/recalled the order of another bench passed on 07.06.2016, which powers he did not have while hearing appeal in criminal jurisdiction. Even the ordinary course, if review is sought, the matter has to be placed before the same bench which has passed the orders against which review is sought.

9. We, for the aforesaid reasons, hold that the High Court did not have jurisdiction to order suspension of the Petitioner in collateral proceedings and or direct suspension of the Petitioner to the competent authority during proposed enquiry. We, therefore, convert this petition into appeal and partially allow it to the extent that the impugned order suspending the Petitioner was without lawful authority. However, CCPO is directed to initiate enquiry against the Petitioner in terms of the order passed by the High Court on 01.06.2016 and submit report after enquiry is finalized. The enquiry shall be conducted by an officer other than the officer within the division, competent under the Rules. The enquiry shall be concluded within six weeks from today. In the intervening period, the Petitioner shall not be posted as SHO in order to avoid any possible influence by the Petitioner during enquiry.

10. The R&Ps be returned to the Sindh High Court through Special Messenger. The appeal shall be decided by the learned High Court on its own merits within two months from today as it pertains to the year 2006.

11. Copy of the order be sent to the Register Sindh High Court for placing it before the Chief Justice for circulation to the learned Judges.

12. Copy of the order be faxed to the C.C.P.O, Karachi for his information and compliance. MWA/I-10/SC Order accordingly.