1983 P Cr (PLP)

Rana Abdul Majid for Appellant. Kh. Shaukat Ali with .S. M. Rashid for the State. Date of hearing : 9th May, 1983. This appeal against the order of the learned Judge in Chamber, dated the 23rd November, 1982, passed on the application of one Mst. Sharifan, moved under Article 204 of the Constitution for taking action against the appellant, Mirza Muhammad Bashir, who was posted as Assistant Sub -Inspector of Police at Police Station flujra, District Sahiwal, and his Station House Officer, Ata Ullah Khan, arises out of the following circumstances. On the 30th March, 1981 Mst. Sharifan filed Writ Petition (No. 1780 of 1981) for issuance of directions to the Station House Officer, Police Station Hujra and Mirza Muhammad Bashir, appellant, who were arrayed as respondents 2 and 3, respectively, not to arrest her in the case of abduction Muhammad Siddique and n7t to harass her and further that a case registered against them and five others for her false arrest and detention. Ata Ullah Khan, the Station House Officer, and the appellant appeared before the learned Single Judge on the 12th April, 1981, and denied having taken any action against Ust. Sharifan except investigating the :3 initiated on the application of Mst. Waziran Bibi and serving the bailable warrant of arrest of Mst. Sharifan issued by the Magistrate. 1hv, learned Judge found that no case appeared to have been made out for interference by this Court and disposed of Mst. Sharifan's petition.

2. On the 11th June, 1981, Mst. Sharifan filed petition under Article 204 of the Constitution for taking action in contempt against the appellant and Ata Ullah Khan for having deliberately made wrong statement before the learned Single Judge on the 12th April, 1981, and for fabricating the record. On the 20th October, 1982, the learned Judge directed the District Magistrate, Okara, to ask the Ilaqa Magistrate to hold inquiry into allega tions touching fabrication of the record by the appellant and his colleague. The learned Judge noticed that the report of the Ilaqa Magistrate indicated that the appellant had contrived interpolation on the application of Mst. Waziran for ante‑dating it from the 6th April, 1981, to the 2nd N4arch, 1981, and made certain insertions, alterations and omissions in other documents and registers in collusion with and connivance of other police officers in order to support filing of fabricated and ante‑dated kalandara in the Court. The learned Judge formed the view that the appellant had misled this Court and to divert stream of justice into irregular channels interpolated and fabricated documents and entries. The learned Midge directed that the copies of the Writ Petition (No. 1780 of 1981), parawise comments submitted by Ata Ullah Khan, contempt application and report of the Magistrate be sent to the Inspector‑General of Police, Punjab, with the direction that proper legal proceedings, including disciplinary action, be taken against the appellant and other police officers concerned and that these persons be immediately placed under suspension till the final determination of the proceedings. Feeling aggrieved the appellant has preferred this appeal.

3. The learned counsel for the appellant contended that 0av impugned order is not sustainable in the eye of law as it had been passed without proper notice to the appellant to explain his position and also without jurisdiction. The learned counsel appearing for the State could not enter caveat to the submission of the learned counsel for the appellant that issuance of directions by the learned Judge to the Inspector General, of Police for taking legal proceedings and disciplinary action against the appellant as well as placing him under suspension was beyond the jurisdic tion of the learned Judge. Also he conceded that the order adversely affecting the interests of the appellant could not have been made without affording him an opportunity to explain 'his position. We believe that following the principle of audi alteram partem the appellant ought to have been heard before passing of the impugned order. Also we feel that placing of the appellant under suspension from service and taking of disciplinary action against him could not have been ordered in contempt proceedings though holding of departmental inquiry and taking of disciplinary action against the appellant could have been suggested to the appellant's higher authorities. Therefore, the appeal is accepted and the impugned order is set aside.

4. We would like to make it clear that it is open to the competent police authorities to conduct an inquiry, which, we feel, in view of the serious allegations against the appellant and his colleagues appearing in the Magistrate's Court, ought to be held, but it will be for the said authorities to decide what disciplinary action, including the one of suspension from service during the inquiry, is to be taken against the appellant or any one else. M. Y. H. Appeal accepted.