2002 PLP (C (PLC(CS))

ABDUL HAMEED KHAN KHATTAK (MEMBER).‑‑‑This appeal is directed against the impugned order/notification dated 9‑5‑1998, whereby appellant was compulsorily retired from service.

2. Concisely the facts as stated reflected in the pleadings of the parties are that the appellant joined the service as D.S.P: in Sindh Province on 1‑7‑1974 and was promoted in due course to the rank of S.P. BS‑18 and also earned move‑over to BS‑

19. It was on 6‑6‑1994 that while posted as S.S.P./CIA Police, Karachi, respondent No.3 (Chief Secretary, Government of Sindh) vide the notification (Annex‑A) put the appellant under suspension and after lapse of 10 months he was charge‑sheeted on 22‑4‑1995 vide Annexure B and the statement of allegations being Annexures B to B/1 as under: (In fact the wording of charge‑sheet as well as statement of allegations is identical and there is no need to reproduce each of them rather reproduction of statement of allegations will do), "STATEMENT OF ALLEGATIONS Mr. Mumtaz Ahmed Burney, the then S.S.P., CIA, Karachi, presently under suspension is alleged to have committed the following acts of misconduct:‑‑ (i) It is alleged that on 17‑5‑1994, CIA Karachi on the basis of source information picked up a notorious smuggler Haji Shourang Khan from Al‑Asif Square, Shorab Goth, Karachi and obtained Police Custody Remand in case Crime No.392 of 1993, under section 17(3), AOP (EH) Ordinance w.e..f 18‑5‑1994 to 24‑5‑1994 for investigation. On 18‑5‑1994 he, the then S.S.P. CIA vide his T.P. Message No.SSP/CIA/RDR/94‑III informed all the S.S.Ps. in Pakistan, Director PNCB and Director Excise, Karachi regarding the arrest of accused Shourang Khan to get information if the said accused was wanted by them in any case. On the same date i.e., 18‑5‑1994 the then S.S.P. CIA, Karachi personally called Major Waheed the Deputy Director, ANTF and informed him about the arrest of the above named accused. Major Waheed deputed ANTF Officers namely Ghulam Ali Sheikh, Athar Ali Naqvi and Muhammad Akhtar and others for interrogation of accused Shourang Khan at CIA Centre, Karachi with reference to his activities in the business of Narcotics. On 20‑5‑1994 the CIA Police on the pointation of accused Shourang Khan also recovered 100 Kgs. of Hashish. Consequent upon the recovery of Hashish a case F.I.R. No.126 of 1994, dated 21‑5‑1994 under Article 3/4 of Prohibition (EH), Order, 1979 was registered at Police Station Gulzar‑e‑Hijri but on the same evening accused Shourang Khan was released‑ on, bail under section 497‑B of the Cr.P.C. by the Investigation Officer Inspector Khair Muhammad Chandio on the plea that accused was a heart patient and it was done with the consent and knowledge of S.S.P./CIA though, there were no grounds for his release which could meat the conditions provided in the said section of Criminal Procedure Code. (ii) Due to the abnormal conduct of CIA, the officials of ANTE were unable to complete their task. However, from the enquiries made by ANTE accused Shourang Khan was found involved in many cases of Narcotics registered at different Police Stations in the Country. (iii) CIA officials knew fully well that Shourang Khan was a notorious narcotics smuggler whose interrogation by ANTF could reveal a lot of information about the organized drug smuggling in Pakistan. His release under the orders of the S.S.PJCIA on the day of recovery of 100 Kgs. Hashish on his pointation, under section 497(b), Cr.P.C. was unlawful."

3. The appellant made reply thereto (Annexures D to D/7) by refuting all the above allegations. The Inquiry Officer thereafter conducted the inquiry of recording the statements of six witnesses produced from the complainant/prosecution side and two from the accused/appellant besides recording of statement of the appellant himself. After having recorded such evidence produced by the parties, the appellant submitted his final statement before the Inquiry Officer on 25‑10‑1995 (Annexures F to F‑28) who in turn submitted his findings to respondent No. l on 6‑12‑1995 by holding the appellant guilty of Count No.l and partly on Count Nos.2 and 3 as per charge‑sheet/statement of allegations. Respondent No.3, served final show cause notice (Annexure G) on 1‑1‑1996 on the appellant to which the reply was tendered by the appellant on 16‑‑1‑1996 (Annexures H to H/17) wherein he, once again denied the charge. On receiving such a reply, respondent No.3 forwarded the case to the Chief Minister of Sindh as required under Sindh Government Rules of Business, 1986 for onward transmission to the Federal Government as the appellant was an employee of Federal Government with his own recommendations as under:‑‑ "(a) Recommending to the Federal Government for awarding major penalty of compulsory retirement." Anyhow, the Chief Minister of Sindh recorded the following observations on the said summary:‑‑ "I don't think we should recommend any punishment as the decision should be taken by the Competent Authority in the light of findings and facts of the case. Here I have a feeling that the subordinates of Mr. Burney have acted on his own and Mr. Burney was obviously careless and had no control over his subordinates." The Sindh Government forwarded the enquiry proceedings etc., to the Federal Government on 8‑8‑1996 whereafrter respondent No.2 (Secretary, Establishment Division) got served final show‑cause notice on appellant on 3‑9‑1996 (Annexures I to 1/1) to which the appellant made reply (Annexures J to J/28) on 23‑9‑1996 by refuting in toto all the above allegations. Appellant was personally, heard by respondent No.2, the Authorised Officer sometime during September/October, 1996 and he finally issued the impugned Notification on 9‑5‑1998 thereby awarding him major punishment of compulsory retirement from service in terms of Rule 4(1)(b)(ii) of the Government Servants (E&D) Rules, 1973 (Annexures K to K/3) against which he preferred departmental appeal to respondent No. l on 8‑6‑1998 (Annexures L to L/3) and the same remained unresponded, he preferred the instant appeal on 5‑10‑1998 after lapse of statutory period of 90 days by raising many objections with regard to impugned notification.

4. Respondents Nos. l and 2 controverted the above assertions made in the Memo. of Appeal with regard to various objections and supported the impugned notification as according to them all the allegations levelled against the appellant stood proved to the hilt and that no injustice was done to him rather the major penalty of compulsory retirement from service was imposed on him quite in accordance with the law keeping in view the magnitude of the misconduct.

5. We have heard the arguments and carefully examined the record.

6. Precisely the allegations which allegedly culminated in passing of the impugned order against the appellant were that he had the knowledge and it was with his consent that Khair Muhammad Chandio, Inspector/Investigation Officer had released on bail Shourang Khan, an accused of a case F.I.R. No.126 of 1994 under Articles 3/4 of Prohibition Order, 1979 although grounds did not warrant for his such release and as a consequence thereof, the officials of Anti‑Norcotics Task Force (ANTF) were unable to complete their task i.e. failed to associate the said accused in many other cases of narcotics for investigation purpose and further that CIA Officials were very much in know of the fact that said accused was a notorious narcotics smuggler and after interrogation by ANTE it would have led to acquiring of much information about the organized drug smuggling in Pakistan.

7. Admittedly Shourang Khan, accused, was arrested in connection with case F.I.R. No. 126 of 1994 registered on 21‑5‑1994 under Articles 3/4 of Prohibition Order, 1979 on the allegations of having got recovered 100 Kgs. of Charas but on the same day, Investigating Officer Khair Muhammad Chandio of CIA released him on bail while exercising powers under section 497‑B of Cr.P.C. At the moment, no doubt this Tribunal is not to sit in the judgment over legal issue as to whether the said Investigating Officer was competent to release that accused on bail or he exceeded 'his powers as presently we are not dealing with any such inquiry against Khair Muhammad Chandio, nevertheless, as this issue is alleged to be linked with the appellant vis-a‑vis his consent/knowledge and/or his orders conveyed to the Investigating Officer for releasing the accused on bail, hence to a certain extent the competency of the Investigating Officer to release that accused on bail shall have to be gone into, section 497‑B of Cr.P.C. is reproduced as under: "A person under the age of 16 years or a woman or a sick or infirm person be released on bail by the police officer even if the offence, charged is punishable with death or imprisonment with life." A bare reading of above legal provisions hardly leaves any room for doubt that the Police Officer is having vast powers to release an accused on bail if he fulfils any of the above requirements.. In the case in hand, Shourang Khan, accused was complaining of heart trouble who was aged 76 years and was having feeble physique and had also produced a medical certificate in support of his heart trouble. The Investigating Officer while making deposition before the Inquiry Officer further clarified the matter that the said accused was complaining of severe heart pain and this factum was noted down in "Roznamcha" by him and by Anwar Gondal, A.S.‑I., copies of the extracts of the same are available on the record. The Investigating Officer further stated that earlier there had been custodial deaths and keeping in view this fact there was apprehension that in view of heart trouble, old age and weak health of Shourang Khan, the possibility/likelihood of the said accused also expiring in such custody could not be ruled out for which the Investigating Officer was to be hauled up and he placed on the record as many as five custodial death cases relating to Karachi Division during the years 1990 to 1995. We may also add here that after grant of bail by the Investigating Officer Shourag Khan was admitted in a hospital and from there he applied for the bail in due course in the Court of A.D.M./CIA, Karachi wherefrom he was granted bail on 30‑5‑1994, copy of which is available on the record. It is an admitted fact (as is proved so by the observations of Authorised Officer made in para. No.3 of his summary of the case dated 20‑5‑1997) that Shourang Khan, accused did, appear in the said Court on 30‑5‑1994. The contention of Investigating Officer that it was a fit case for grant of bail thus stands proved to the hilt in view of accused being ultimately released on bail by the concerned Court on 30‑5‑1994 inter alia on the ground of his illness, old age, etc.

8. The contention raised from the respondent's side as to why said Investigating Officer did not get medically examined the accused before releasing him on bail is hardly of any substance as in the above provisions of section 497‑B of Cr.P.C. there is no such direction rather it is the satisfaction of the Police Officer with regard to any of such requirement available under that section as if he feels satisfied by documents or through any other valid means that the case of accused is falling within the purview of said section then there is no legal embargo upon him to first get him medically examined.

9. It transpires that the respondent felt aggrieved and annoyed by the release of Shourang Khan by the Investigating Officer simply for the reason that had he not been so released, the‑ANTF might have been able to arrest him and join him in investigation of many other important narcotics cases. We wonder at the logic and philosophy of such line of thinking. Even if an accused is enlarged on bail either by Police Officer or Court, Police or any Investigating Agency is at liberty to apprehend him under section 54 of the Cr.P.C. as suspect in any other case and there is no need to obtain permission of any Court for that matter. Even if an accused is granted bail in a particular case, legally he is under obligation to join investigation of that case if and when called upon by the Investigating Officer.

10. It is well‑settled principle that an accused is innocent unless he is proved guilty and to secure that safe administration of criminal justice, the provision of bail is provided in the Criminal Procedure Code. The attendance of an accused can be secured by proceedings 'against his surety under section 514, Cr.P.C. and even trial Court be held against the accused in absentia under section 512, Cr.P.C. it is not the case of the respondent that Shourang Khan absconded after being released on bail by the Investigating Officer rather as given above, he did attend the Court of ADM/CIA on 30‑5‑1994 during his bail proceedings wherefrom his bail was confirmed and prior thereto he remained admitted in hospital. He was not alleged to be involved in any murder case. Even if he would have been so involved and after valid reasons warranting his release on bail, the police officer and the Court could exercise such powers. It is in evidence recorded by the Inquiry Officer, Mr. Mohsin Panhwar, that till registration of above case for recovery of 100 Kgs. Charas, Shourang Khan accused was not reported to have been named as an accused in any other case of narcotics although the present appellant had promptly sent T.P. Messages to all the SPs of Police throughout Pakistan in order to know if this accused, Shourang Khan was involved in any other case registered in any other Police Station but till 6-6-1994 (when the appellant was put under suspension) no such information from any quarter was received about the involvement of Shourang Khan in any other narcotics case. Even Major Waheed who was Incharge of ANTF conceded before the Inquiry Officer when appearing as a witness that they did not have any record to establish that Shourang Khan was named as ah accused in any F.I.R although according to him, the names of all accused poisons and even of suspects in narcotics cases are available with their department but strangely enough the said witness came up with the version that had Shourange Khan not been released on bail so abruptly by the Investigating Officer they would have been able to involve him in blind narcotics cases It is tragic to know about such designs of officers of such agencies to involve any person once arrested in untraced and blind cases without collecting incriminating material against him prior thereto. It is also in evidence that the appellant as well as the Investigating Officer did request officials of ANTE to arrest Shourang Khan, accused if they wanted to associate him in any other required narcotics case but such offer was turned down by those officials as according to them he was not named as an accused of narcotics case prior thereto. Moreover, there was no legal hindrance in the way of ANTE Officials to append Shournag Khan any time in‑between 18‑5‑1994 to 30‑5‑1994 and even thereafter as there is nothing to suggest from the record that after being released on bail, Shourang Khan absconded.

11. The only point falling for determination is as to whether appellant had ordered the Investigating Officer to release Shourang Khan on bail or in the alternate he consented for his bail or was having knowledge that Shourang Khan was going to be released on bail by Investigating Officer Khair Muhammad Chandio. We have scanned the record carefully but were unable to lay our hands upon any material to show that the appellant ever made an order oral or in writing about Shourang Khan to be released on bail by the Investigating Officer. It is pertinent to note that this allegation of involving the appellant for consenting to release on bail was squarely denied by the Investigating Officer as while appearing before the Inquiry Officer Mr. Mohsin, he categorically stated that he (Mr. Chandio) decided of his own to release Shourang Khan on bail in view of his illness anti old age. This admission (In the part of Investigating Officer takes the bottom out of this allegation of the prosecution about consent/knowledge or order made by the appellant about his release. No doubt as per record, appellant was informed by the 1nve'itigating Officer to proceed in the matter in accordance with the law which obviously seems to be a valid and most appropriate direction. The appellant wits not expected to play the role of a teacher in a class by dictating his orders rather in his supervisory status he rightly asked the Investigating Officer to proceed according to law and thereafter it was for the Investigating Officer to steal with the matter to release or not Shourang Khan keeping in view the relevant dictates of law.

12. In the light of above discussion, no exception can be taken to the steps taken by, the Investigating Officer in that direction as bailing out of the accused by him was further confirmed by the Magistrate and tile prosecution never applied for cancellation of bail.

13. Evan if Shourang Khan was released on bail, ANTF Officials were at liberty, a~ already stated above, to apprehend him if he was reported to be involved my other narcotics case and they were not required to make request to the appellant or to the Investigating officer for that purpose as they could Independently proceed against him. Moreover, the appellant and the Investigating Officer did offer ANTF Official to take into custody Shourang Khan when on two consecutive days, three officers of CIA came and interrogated Shourang Khan while in the custody of Mr. Khair Muhammad Chandio but they declined to arrest him obviously as by that time there was no F.I.R. registered against him in which he was named as an accused or even as suspect thus thereafter appellant could not be made scope‑goat for the same.

14. Evidence recorded by the Inquiry Officer does not reveal even in the remotest manner that appellant had ordered the Investigating Officer to release Shourang Khan on nail or such bail order was secured with tasit approval of the appellant. Releasing an accused on bail on valid grounds is no offence. We were told during the course of arguments that Mr. Khair Muhammad Chandio is still in service but the appellant seems to have been politically victimized for no offence committed by him as there are clipping of newspapers available on the file that even the then Prime Minister had made press conference who held that they were not going to spare the appellant for his alleged involvement in the bail matter. The Investigating Officer categorically stated that he was never forced nor directed by the appellant to release Shourang Khan on bail rather he released him of his own. His this admission coupled with advice of the appellant to proceed against that accused in accordance with law with regard to his release is enough to issue a chit of innocence in favour of the appellant.

15. A perusal of the Inquiry Report as well as observations made by the Authorised Officer convince us that the same were result of whims and conjectures and were shorn of valid reasons. There was no cogent and convincing incriminating evidence to establish the above allegations against the appellant. Mere framing the charge‑sheet, holding of inquiry and issuance of final show‑cause notice does not mean that the allegations stand proved. In such‑like matters it is the evidence which is placed on the record which is to be sifted in order to arrive at just decision in the matter and one should not be held guilty in a blind‑folded manner as in the case in hand. In the light of above discussion we have reached an irresistible conclusion that the prosecution had miserably failed to establish and prove the above allegations against the appellant thus, the appeal succeeds, the impugned order is set aside and it is ordered that the appellant be reinstated into service from the date of his compulsory retirement order with all back benefits by leaving the parties to bear their own costs.

16. Copies of the judgment be sent to all concerned through registered post. H. B. T./116/FST Order accordingly.