1988 PLP (C (PLC(CS))

Enquiry Officer was appointed to hold a detailed enquiry into the above charges. A number of witnesses were examined on both sides before the Enquiry officer who ultimately submitted his report dated 4‑9‑1986, finding the appellants guilty of cowardice and recommended major penalty of dismissal to be imposed upon the appellants. On receipt of such report the appellants were served with show‑cause notice on 13‑9‑1986 to which they submitted their reply. However, SSP Sukkur by his orders dated 1‑11‑1980 and 4‑11‑1986 awarded major penalty of dismissal to the appellants. They preferred departmental appeals to the DIG who converted their dismissal into their removal from service, vide his order dated 23‑4‑1987. Dissatisfied with the D.I.G.'s order, the appellants approached I.G. Police in revision which too failed, as their petition was rejected by the I.G. Police by his orders dated 5‑10‑1.987, 18‑11‑1987 and 23‑I1‑1987. It is against these orders that appellants have come in the present appeals. Mr. Abdul Mujeeb Pirzada was heard on behalf of the appellants and Mr. Abdul Sayeed Khan Ghori, Govt. Counsel submitted his arguments on behalf of official respondents. With the help of the said learned counsel we also went through the record. . It would appear that there are two main charges against the appellants first, that they displayed cowardice at ‑the time of the encounter between the dacoits a and the police party led by Mr. Zafar Ahmad Farooqui, SSP. Sukkur; second, that they misappropriated the Government ammunition. As for the charge of cowardice, there is no evidence on record to show how and in what manner the appellants displayed their cowardice. None of the witnesses has stated in the evidence that appellants ran away from the spot or hid themselves on seeing the dacoits. There is also nothing in their evidence to indicate that the, appellants stood on side lines merely as silent spectators doing nothing whatsoever. However, when the evidence of the witnesses examined by the Department is read alongwith the report of the Enquiry Officer we find that because the appellants did not resort to firing at the time of incident, they have been dubbed as cowards. The question for our consideration is whether‑mere omission to fire would render the appellants liable for cowardice. We have considered this point carefully. We are of the view that failure to make indiscriminate firing would not amount to cowardice. Of course if the occasion required the appellants to lire, their omission to do so would not only put them in the category of cowards but would also render them liable for failure in their duty. Obviously at the time of the incident there was a complete confusion all around and the whole situation was panic stricken. In such circumstances it was rather difficult for the witnesses to say if any of them did or did not see the appellants firing. So far the appellants themselves arc concerned, they have stated with vehemence that they had fired a certain number of rounds. In support of their version there is admission of the respondents that the appellants had not surrendered some of the ammunition. It is entirely a separate issue if the ammunition which was not surrendered had been misappropriated by the appellants. On the allegation of misappropriation we are sorry to say there is not an iota of evidence. Even if we come to the conclusion that the appellants did not fire a single shot, that by itself would be no proof of the charge of misappropriation. That charge has got to be proved by positive evidence which. is absolutely lacking. But as stated above the appellants' plea is that they had participated in firing. Let us now sec what evidence has been produced to successfully rebut the appellants' version. In all nine witnesses arc admittedly examined on behalf of the prosecution. From them only four witnesses namely: HC/Noor Muhammad who has also filed first information report, PC/Muhammad ishaq, PC/Shah Muhammad Shah and PC/Muhammad Asif clam to be eye‑witnesses to the incident. PC/Muhammad Asif was driving one of the Police vehicles at the time of occurrence. The appellants were admittedly in that vehicle. According to Muhammad Asif; "when he stopped the vehicle, the Police force sitting in his vehicle got down and went in position." He is the important eye‑witness who instead of showing that the appellants in any way dispend cowardice has made a positive statement that the (Police) force sitting in his vehicle after getting down took the position. Coming to the evidence of PC/Muhammad lshaq, another eye witness, it is found that in reply to a question put to him in cross‑examination, he has stated that you (the appellants) were firing too. In this way this eye‑witness also supports the appellants' plea that they had taken to firing. The third eye‑witness was PC‑Shah Muhammad Shah. He has made a frank admission that he could not say if the appellants had fired or not. Therefore, his evidence is of no avail to the prosecution side. The next important eve‑witness is HC/Noor Muhammad. His earliest version of the incident is contained in the F.I.R. reproduced in the beginning of the judgment. At that stage This witness stated nothing to show that the appellants did not resort to firing or in any way showed cowardice. As disclosed in the Enquiry Report, even in his statement before the Enquiry Officer he has not made a definite statement to the effect that the appellants had not taken to firing. Only in reply to a question put to him in cross‑examination all that he has said is that he did not hear the firing of the appellants. So, his ordinance is not of any material assistance to the Department. As per version given in the F.I.R., apart from above witnesses PC/Ghulam Hussain, PC/Muhammad Sajjan, and PC'/Muhammad Aslam were also eye‑witnesses of the incident. They have however not been examined in the enquiry. The presumption would be that they have been with held as they were perhaps not willing to give evidence against the appellants. Apart from above, even the Enquiry Officer has not relied upon the evidence of above eye‑witnesses. The relevant portion of his observations may be reproduced as under: "The entire evidence offered by both prosecution and defence is irrelevant except the report of arms expert who has certified that no ammunition was fired from the rifles issued to the escort party. All other witnesses either reached late or they just heard bursts from all directions. Under these conditions rifle check up remains only leading to the scientific due conclusion." From the above findings of the Enquiry Officer it is crystal clear that the sole evidence which he has made the basis for punishment of the appellants is the statement of Armourer HC/Haiti Hussain. It may perhaps he useful to reproduct the statement of the said HC/Haiti Hussain. It reads as under: "1 state that I am‑ working as Armourer in Police Lines Sukkur since last 30 years. On 15‑6‑1986 A.S.I. Shah Nawaz Koth Incharge brought rifle 7.62 China viz. Butt Nos. 65, 85, 192. 2711, 227, 267, 322 for their checkup and issuing of such certificate whether the force had fired from them or otherwise. I checked the above rifles and found that no firing was done by them I also issued such certificate and handed the same to A.S1 Shah Nawaz alongwith rifles." Even if we ignore the requirement whether the above so called expert possessed the requisite scientific knowledge for examining the Arms having been fired or not, still it was necessary on his part to give reasons in support of his certificate, by which he had certified the rifles carried by the appellants at the time of incident not to have been fired. Furthermore, the expert's evidence had only a corroborative value. It is invariably accepted as a corroboration. In the instant case as has been discussed above there is no other positive evidence to show that appellants had not resorted to firing. In absence of such evidence the Armourer's certificate that not a single shot was fired from the rifles of the appellants hardly lends any help to the department's case. In other words Armourer's evidence alone cannot be acted upon to uphold the appellants' removal from service, thereby depriving them and their families of their source of livelihood. The upshot of the above discussion is that the department had failed to prove the charge of cowardice against the appellants. Consequently the other charge of misappropriation of the ammunition by the appellants which is dependent on proof of the charge of cowardice must also fail. Therefore, the impugned order is set aside and appeals are accepted with no order as to costs. S.Q./159/Sr. S. Appeals accepted.