2011 PLP (C (PLC(CS))

MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN).

This appeal under section 4 of the Balochistan Service Tribunals Act, 1974 has been preferred by the appellant against the order dated 4-5-1994 passed by respondent No.1 whereby he was terminated from service.

2. The relevant facts in small compass are that the appellant was initially appointed as Junior Clerk in Agriculture Department on 23-7-1990. He remained posted on the said post till 4-5-1994 when his services were terminated, the background of termination was that on 30-8-1992 an F.I.R. No.10192 was lodged under Section 302 PPC with Levies Sibi by one Essab Khan, wherein, it was alleged that appellant has committed the murder of Din Muhammad. He was arrested and after completion of investigation, challan was submitted before the learned Additional District and Sessions Judge Sibi, and on conclusion of the trial, appellant was acquitted of the charge vide Judgment dated 16-12-2000. Being aggrieved of his acquittal, the complainant Essab Khan filed Criminal Acquittal Appeal No.2 of 2001 before the honourable High Court. The said acquittal appeal was dismissed on 4-6-2005 and acquittal of appellant was upheld. Thereafter, the complainant Essab Khan, against, both the judgments of learned trial Court as well as appellate Court, filed a Criminal Petition for Leave to Appeal bearing No.20-Q/2005 which was also dismissed by the honourable Supreme Court vide Judgment dated 20-4-2006.

3. That after acquittal in the aforementioned case, the appellant approached the respondent No.1 and moved an application for assigning him duty. However, he was informed by the respondent No.1 that his services were terminated vide order dated 4-5-2004.

4. That against the order of dismissal the appellant approached the respondent No.2 for redressal of his grievance, but the concerned staff of the office of respondent No.2 refused to receipt the application. Therefore, in such compelling circumstances, the. appellant filed a Constitutional Petition before the honourable High Court. However, the same was dismissed vide order dated 29-3-2007. The appellant, however was set at liberty to approach the proper forum, hence this appeal.

5. Mr. Amanullah Kanrani Advocate, learned counsel for appellant contended that, since there was no other allegation and the appellant was dismissed from service on account of his absence which was result of his false involvement in Crime No.10192 as such, after his clean acquittal, he is entitled to be re-instated in service with all back-benefits. In support of his contention learned counsel placed reliance on the cases reported as 1998 SCMR 1993 and 2001 SCMR 269.

6. On the other hand Mr. Salahuddin Mengal learned Advocate-General of Baluchistan opposed the appeal on the ground that the appellant remained absent from his duty w.e.f. 5-3-2000 to 16-12-2000 and he was not acquitted honourably.

7. We have considered the contentions raised by the learned counsel for appellant and learned Advocate-General and also perused the record of case.

8. The record clearly shows that absence of appellant was neither wilful nor deliberate. The record enclosed' with the memo of appeal clearly divulges that the appellant is victim of the circumstances and he has found innocent upto the honourable Supreme Court of Pakistan and he has faced great agony of Court trial on the allegation of an offence, which, he did not commit. The appellant has admittedly remained absent from duty w.e.f. 30-4-1992 to 4-5-1994 but his absence, as stated above, was neither wilful nor deliberate, rather it was a natural consequence of false F.I.R., lodged against him by complainant. Although word "wilful" has not been defined anywhere in Balochistan Civil Servants Act 1974, but its plain meaning is; voluntary, knowingly and deliberate not accidental or involuntary. An act or omission is wilful if done voluntarily and intentionally and with the specific intent to do something the law forbids. As such, the absence of appellant cannot be termed as wilful absence from duty, hence the authority was not justified to terminate the services of appellant on account of absence.

9. As regards the acquittal of appellant, learned counsel contended; that since the acquittal has not been defined in the service laws, nor in the code of criminal procedure. Thus all kinds of acquittals, are reckoned to be honourable and no distinction can be made. In this behalf, he referred to the dictum laid down by the honourable Supreme Court in 1998 SCMR 1993. Relevant para therefrom is reproduced hereinbelow:-- "We are inclined to uphold the above view in as much as all acquittals even if these are based on benefit of doubt are honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence there of, what shall be the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals."

10. The learned Advocate-General when was confronted with the same, he could not give any satisfactory reply. The contention of the learned Advocate-General in regard of limitation is also devoid of force for the reason that the record is indicative of the fact that the appellant took up the matter with department and delay was not intentional, rather he has been pursuing the case right from his acquittal. Viewing the above situation we hereby condone the delay. Even otherwise the Supreme Court has appreciated the disposal of matters on merit instead of denying justice on technical grounds.

11. Mr. Amanullah Kanrani also argued that, appellant may be reinstated in service with back-benefits In this behalf, he placed reliance on 2001 SCMR 269, wherein following observations were made:- "

10. It is an admitted fact that the appellant was acquitted by learned Special Judge (Central) Multan from the charge which were levelled against him. This Court, in. the case of Dr. Muhammad Aslam has laid down a dictum that all acquittals are "honourable" and there could not be acquittal which could be termed as "dishonourable."

12. The learned Advocate-General opposed the contention and stated that the appellant is not entitled to back benefits, as the judgment relied upon is distinguishable.

13. We are of the considered view that there, is no room entertaining any opinion contrary to the principle that where there is no work, there is no pay. Even otherwise, except oral assertion, there is nothing in black and white to show that immediately after lodging of F.I.R., the department was informed by the appellant. As such, the appellant is not entitled for back-benefits.

14. For the foregoing reasons, we accept the appeal. The appellant is re-instated in service from the date of his dismissal without any back benefits. The period appellant remained out of service be treated as extraordinary leave without pay.

15. With the observations made hereinabove appeal stands disposed of. H.B.T./7/BST Appeal accepted.