1984 PLP (C (PLC(CS))

MUHAMMAD IRSHAD KHAN (MEMBER).‑ The relevant background giving rise to the present appeal, briefly speaking, is that the Superintendent of Police, Khairpur, on the 22nd of March, 1978 had reported to the Deputy Inspector‑General of Police, Sukkur, that it was a talk of the town that a police party under the command of the appellant, then an Assistant Superintendent of Police, Sukkur raided the godown of one Abdul Latif Sheikh a businessman of Khairpur, in the night of 9th‑10th March and apprehended the said Mr. Abdul Latif Shairpur and his one angrio along with two women of ill repute who had gathering there for immoral purposes. The appellant threatened them with action under the Enforcement of Hudood Ordinance. Faced with the situation the said Abdul Latif Sheikh arranged his own and the other accomplices' release by paying to the appel lant an amount of Rs. 50,000 as an illegal gratification. The Deputy Inspector‑General of Police, Sukkur, on his turn, after making his own personal enquiries, reported the matter for appropriate action against the appellant to the Inspector‑General of Police who recommended to the Chief Secretary, Sind, the appellant's immediate suspension from service and disciplinary action against him for the said serious charge of misconduct and corruption. The Chief Secretary, being the authorised officer in respect of the appellant, after obtaining the approval of the authority, ordered the suspension of the appellant and initiation of departmental proceedings against him. Simultaneously charge‑sheet, dated 13th June, 1979 accom panying a statement of allegation, was served on the appellant. Mr. Qamaruddin Khan, the then Deputy Inspector‑General of Police, Head quarters, Sind, was appointed as Enquiry Officer, who, after holding an enquiry in terms of the Government Servants (Efficiency and Discipline) Rules, 1973, submitted his findings to the Authorised officer wherein he held the appellant guilty of the charge. The case was then submitted for the orders of the authority who vide his order, dated 6th December, 1980, awarded the penalty of dismissal from service to the appellant. He sub mitted a review petition, dated the 12th of February, 1981 and after waiting for a statutory period of 90 days, the appellant preferred the present appeal on the 20th of May, 1981. Thereafter, his review petition was rejected on 1st August, 1981.

2. We have heard the learned counsel for the parties at great length perused the entire record of the case carefully. Learned counsel for the appellant emphasised that it was a case of no evidence as the prosecution witnesses including the complainant and informers, during the enquiry, had not supported the allegations against the appellant, while the report and the findings of the Enquiry Officer are based only on the depositions of Mr. Pir Bakhsh, S. P. Khairpur, and Mr. Nayyar Mehfooz Khan, D. I.‑G. Sukkur, which, being self‑contradictory, cannot be considered as a legal evidence and cannot be relied upon in punishing the appellant. It was also alleged that Mr. Pir Bakhsh, S. P. Khairpur, a promoted officer was inimical towards the appellant for the reason of the appellant's being a competitioner recruit,

3. It is understandable as to why the co‑accused police official and the complainant/informers etc. had not supported the case of the prosecution during the enquiry. Quite obviously, telling the truth by them amounted to confession of committing cognizable offences and thereby rendering them liable to prosecution.

4. It seems to us that the Superintendent of Police, rather than being inimical to the appellant displayed a sympathetic attitude towards him and was trying to protection him. It is evident from the record that the Superintendent of Police had received the information of the incident on the following day but he had taken 12 days to report this serious incident to the Deputy Inspector‑General of Police and that too by merely recommend ing the transfer of the appellant in spite of the seriousness of charge. It is thus quite clear to us that the Superintendent of Police adopted a lenient approach to the case and, in fact, had tried to protect the appellant by fist making a delayed report against him and then by contradicting the state ment of the Deputy Inspector‑General of Police on the point of preliminary enquiry. It is significant, in any case, that the appellant does not allege any bias against the Deputy Inspector‑General of Police who too was a competitioner like the appellant. There was, therefore, no reason why the Deputy Inspector‑General should have made such a damaging report against the appellant unless be was reasonably sure of the correctness of the allegation. There is no allegation, what to speak of any evidence, that the Deputy Inspector‑General had any prejudice against the appellant. Therefore, there is no reason to disbelieve the deposition of the Deputy Inspector General that the appellant had confessed his guilt before him and pleaded for mercy. It is noticeable that in his deposition before the Enquiry Officer, the Deputy Inspector‑General had categorically stated so but the appellant did not at all cross‑examine him on the point and thus it remained un-contro verted. The Enquiry Officer was, therefore, justified in holding the appel lant guilty and the contention that it was a case of no evidence is unsustain able. Likewise some minor contradictions in the statements of witness e. alleged by the learned counsel for the appellant, are neither here nor there.

5. A stand was taken that the appellant had been falsely implicated in the case while, in fact he was about 60 miles away from Khairpur at the time of incident. The Enquiry Officer, in his report. has dealt with this plea elaborately and has rightly rejected it by holding the evidence, produced by the appellant, to be manipulated.

6. It was next contended by the learned counsel for the appellant that the co‑accused police officials, employees of the Provincial Government, were produced against but were acquitted by their competent authority and their acquittal establishes the innocence of the appellant also. We are afraid we cannot agree with this view simply because the order passed and view taken by the relevant authorities of the Provincial Government in respect of the co‑accused police officials cannot, in any way, bind or influence the competent authority in respect of the appellant.

7. It was also argued by the learned counsel for the appellant that a number of irregularities, including non‑supply of enquiry report, were com mitted while holding the proceedings against the appellant which vitiated the impugned order. We are, however, of the opinion that in view of the establishment of the guilt of the appellant, as aforesaid, none of the alleged irregularities in the proceedings caused any prejudice to the appellant in his defence and, therefore, does not affect the legality and validity of the pro ceedings taken and order passed against the appellant. As laid down by the Supreme Court in the case of Syed Mir Muhammad v. N.‑W. F. P. Govern ment (P L D 1981 S C 176) "the rule enunciated by S. A. de Smith, in the passage quoted above, is the correct rule to follow in cases of disciplinary inquiries ; namely that if an omission, defect or irregularity in the conduct of the inquiry has not caused material prejudice to the accused official in the matter of his defence, then such an irregularity, omission or defect would not, by itself, vitiate the action taken against him".

8. For the foregoing reasons we are of the view that the appellant has rightly been held guilty of the charge. At the same time, however, keeping in view the over‑all circumstances of the case, the factum of the appellant being first offender and a youth the penalty of dismissal from service, in our opinion, is too severe and it may be appropriate that the appellant should be given an opportunity to reform himself. We, therefore, modify the punishment and alter it to reduction by three stages in his time scale a stood on the date of his dismissal. The appellant shall accordingly b reinstated into service with effect from the date of his dismissal and the period be remained out of job shall be treated as extraordinary leave without pay.

9. No order as to costs A. E. Appeal accepted.