2018 PLP (C (PLC(CS))

JUSTICE MUHAMMAD YOUNIS THAHEEM, MEMBER.

Through this judgment, this tribunal proposes to dispose of the above titled subordinate judiciary service appeal arising out from the order of Hon'ble Chief Justice/Authority, Peshawar High Court, Peshawar, dated 18.10.2010 (actually 13.10.2010) vide which appellant was awarded major penalty of reduction to two stages lower in the time scale for a period of four years with the following prayer: "It is prayed that my appeal may kindly be accepted and the order dated 18.10.2919 passed by Hon'ble the Chief Justice/Authority in the proceedings in exercise of powers under Rule 7-A of N.W.F.P (now Khyber Pakhtunkhwa) Government Servants (Efficiency and Disciplinary) Rules, 1973, wherein, minor penalty of the appellant was converted into major penalty of reduction to two stages lower in the time scale within the meanings of the Rule 4(1)(b)(i) of N.W.F.P Government Servants (Efficiency and Disciplinary) Rules, 1973, may be set aside or any other relief which this tribunal deems fit may kindly be also granted."

2. Brief facts of the instant appeal are that appellant while posted as Judicial Magistrate, Peshawar was charge sheeted by the 'Authorized officer as under:- "That you, while posted as Civil Judge-XII, Peshawar, while hearing a petition under section 169, Cr.P.C. moved by the accused by taking undue advantage of your official position and status as Judicial Magistrate, on 26.11.2008 unlawfully ordered not to arrest the accused, (by making endorsement on the notice) involved in a case FIR No.804 dated 18.9.2008 registered under section 302/34, P.P.C. and refrained the law enforcing Agency to act under the law and thus misutilized your authority; Your aforesaid conduct is in total disregard of the law and apparently aimed at helping the accused charged in the above referred case, which, prima facie, amounts to 'misconduct' within the meaning of NWFP Government Servants (Efficiency and Discipline) Rules, 1973. You are, therefore, hereby required to:- (i) State whether you desired to be heard in person, and (ii) Put in your written defence, within 10 days of the communication of this charge sheet, before the enquiry officer, Mr. Niaz Muhammad Member Inspection Team-I, Peshawar High Court, Peshawar. Otherwise it shall be presumed that you have no defence to put in and in that case an ex-parte action shall be taken against you. That the statement of allegation is enclosed herewith.

3. To defend himself, the appellant submitted his reply to the charge sheet wherein he dispelled the charge. In order to prove the charge sheet an enquiry was conducted against the appellant through an enquiry officer who recorded evidence in the case wherein the appellant fully participated whereafter the 'Authorized officer' vide his order dated 23.6.2010 imposed minor penalty of censure under rule 4(1)(a)(i) of N.W.F.P. Government Servant (E&D) Rules, 1973 to which the Authority did not agree and set aside the above said order of Authorized Officer while exercising power of revisional under rule 7-A of the ibid rules and matter was sent to the said Authorized Officer to proceed against the appellant separately vide order of the Authority bearing endorsement No.3391-92 dated 04.03.2010 and thereafter the minor penalty was converted into major penalty of reduction to two stages lower in the time scale within the meaning of rule 4(1)(b)(i) of ibid rules vide order dated 13.10.2010. The above impugned order was passed while exercising power of revision under rule 7-A of the rules, which has been challenged through the instant appeal.

4. The learned counsel for appellant and appellant himself argued the case and submitted that the learned Authorized Officer has been influenced by the unfounded inquiry report of the inquiry officer which is based on the sole statement of Moharrir Nasir Khan. He further argued that there is no worth reliable evidence against him which could be made a basis for awarding any punishment or converting minor penalty into impugned major one. It was lastly argued that the appellant is innocent and had not acted under the influence of Jan Muhammad the then Additional Sessions Judge, and had neither directed his then Moharrir to put the note "not to arrest the accused" on the 'PARWANA' nor has endorsed it.

5. Conversely learned counsel appearing on behalf of respondent defended the impugned orders which according to him, are based on proper appreciation and appraisal of case material and law on the subject.

6. Arguments heard and record gone through.

7. Basic question for determination in the case in hand is whether the appellant is guilty of mis-conduct within the meaning of rule 2(1)(e) of the N.W.F.P. (Khyber Pakhtunkhwa) Government Servants (E&D) Rules, 1973 and the above said major penalty has rightly been imposed on him? Answer to the above question is in affirmative. In order to arrive at the ibid conclusion we have thoroughly considered the case record which shows that the appellant had acted under the influence of Jan Muhammad khan then Additional Sessions Judge, Peshawar and had misused his judicial position while seized of an application under section 169, Cr.P.C. and in that connection issued a notice/PARWANA' for requisitioning of the record by directing his Moharir to put a note for not to arrest the accused till the decision of the application under section, 169, Cr.P.C. involved in a criminal case under section 302, P.P.C.

8. From the perusal of record it reveals that a criminal case under sections 302/34, P.P.C. was registered with Police Station Yakatoot Peshawar vide F.I.R. No.804 dated 18.09.2008 against Akbar Khan and 03 others wherein an application under section 169, Cr.P.C. was filed by the accused on 17 11.2008 for their discharge and a 'PARWANA' for requisitioning of the case record was issued and signed by appellant the then Judicial Magistrate, Peshawar. The 'PARWANA' which is epicentre of the entire case placed on record as EXIOW-1/1 is reproduced in verbatim as under: Case against the appellant is that the ibid under lined note was inserted, signed and endorsed in the 'PARWANA' by him under the improper influence, direct pressure of Jan Muhammad Additional Sessions Judge, Peshawar. This tribunal also noticed unreasonable and irrational space between signature of appellant and the direction regarding requisitioning of record in the said 'PARWANA'.

9. Case record shows that the Enquiry officer appointed by the Authorized officer recorded statements of witnesses namely Nasir Khan Moharrir as IOW-1, Abdul Wakeel then Naib Court with appellant as IOW-2, Gharib Ullah Khan SI as IOW-3, Ikram Ullah Moharrir investigation Police Station Kothwali as IOW-4 and Gul Rehman Steno typist then attached with the appellant IOW-5.Similary during inquiry proceedings appellant also produced Murtaza Shah as DWI, Nawab Khan then APP in the Court Judicial Magistrate i.e. appellant as DW2 and appellant himself appeared as DW

3. The present appellant during the inquiry proceedings cross-examined all the IOWs.

10. During inquiry proceeding Nasir Khan then Moharrir with appellant appeared as IOW-1 who stated that 'PARWANA' EXIOW-1/1 was issued for summoning of record for 28.11.2008 and note on the 'PARWANA' is of his hand writing .He stated that he was summoned by the appellant to his retiring room where a guest was also sitting with him and he (appellant) handed over to me the file of the case and directed me to issue process to the concerned police station. The relevant portion of his statement is reproduced below:- "On 25.11.2008 I was summoned by Mr. Muhammad Ayaz Khan the learned Presiding Officer to his retiring room where a guest was sitting with him and he handed over to me the file of the case and directed me to issue process to the concerned police station. Accordingly I prepared the process without any note and when I brought the same for signature to the learned Presiding officer he directed me to add a note which was accordingly added by me then it was signed by the Presiding officer." This witness was cross-examined at length but nothing came favorable to the appellant. He negated the suggestion that the fateful note was put by him after obtaining signatures from the appellant.

11. In addition to above the statement of Gharib Ullah who appeared as IOW-3 is worth perusal who stated as below:- "Mr. Jan Muhammad A.S.J. (appellant in SA No.88/2010), telephoned me that he was in possession of process relating to Police Station Yakatoot which was to be delivered to the Police Station. I then talk to Moharrir of P.S. namely; Shamshuz Zaman regarding this. Mr.Shamshuz Zaman telephoned one Ikram Moharir Police Station Kothwali for getting his motorcycle for the purpose. On this Mr. Ikram informed me that he was already in Shoba Bazar Chowk and said he would get the said 'PARWANA' from the concerned Judge. Similarly the same witness further stated as below: "When I was on way to Peshawar with accused I received telephone call from Mr. Jan Muhammad Khan ASJ, that the accused be produced before Mr.Nisar Muhammad Khan JM, Peshawar. I brought this into the notice of my high ups and then produced the accused in Court of Nisar Muhammad Khan JM who directed me verbally to release the accused". Similarly appellant appeared before the enquiry officer as DW3 but did not utter a single word that he had not signed the 'PARWANA' EXIOW1/1 rather stated that he pointed out the forgery in the order of Mr.Nisar Muhammad Khan Judicial Magistrate (other convict Judicial officer)."

12. Furthermore, from the testimony of Nasir Khan Moharrir IOW-1 is worth perusal who admitted the conduct and role of appellant for commission of misconduct, so in the light of evidence on record and the documentary proof in the shape of EXIOW1/1 we are of the view that act committed by the appellant can safely be termed as misconduct in terms of rule 4(1)(b) of the NWFP (Khyber Pakhtunkhwa) Government Servants (E&D) Rules, 1973 and was rightly proceeded under the ibid rules as his act and role played was not expected from him as a judicial officer having been assigned the noble cause of administrating justice without fear or favour. So from the record it is proved that the appellant had directed his Moharrir to put aforesaid note on 'PARWANA' (EXIOW1/l) by failing to understand the law and the principles of independence of Judiciary by acting under the command, influence, inducement and direct pressure of Jan Muhammad Khan then A.S.J. (appellant in SA No.88/2010). In this respect wisdom is derived from the Judgment of Lahore High Court reported as PLD 2015 Lahore 317 so the appellant being a judge failed to comprehend his judicial position and the principles of independence of Judiciary.

13. For what has been discussed above, we are of the humble view that the appellant could not point out any irregularity, illegality or a jurisdictional defect in the impugned order, therefore, the instant appeal, being bereft of any merit, is hereby dismissed. ZC/1/KPKST Appeal dismissed.