1981 PLP (C (PLC(CS))

M. SALEEM CHAUDHRY (CHAIRMAN).‑In this case the appellant is aggrieved by the order of President of Pakistan, dated 14th April 1970, dismissing him from service. . Briefly the facts of the case are that the appellant was appointed as Extra Assistant Commissioner in August, 1948, under the Punjab Govern ment, against a War Service vacancy. In 1969 when he was holding the post of Additional Commissioner (Revenue) Bahawalpur, he was suspended from service on 6th December 1969, under Martial Law Regu lation No.

58. He was charge‑sheeted on 23rd February, 1970, on the following ten charges: ‑ (1) Whereas, you, Mr. C A. Saeed, P. C. S. (now under suspension) in the year 1951. while posted as Magistrate, 1st Class, D. G. Khan, by abusing your official position and powers, on 14th September 1951, during your journey from Multan to Lahore occupied all the 5 berths of a IInd Class railway compartment, although you had a reservation for 2 seats only and thereby‑ caused considerable incon venience to other passengers, you are thus charged for 'mis conduct' ; (2) And whereas, you, in the year, 1957, while posted as Secretary, Regional Transport Authority, Rawalpindi, in consideration of undue favour shown in the grant of route permits to Mr. Muhammad Ashraf Pagganwala, Proprietor, Bhimber Co‑operative Society Ltd., Gujrat, dishonestly accepted from him as illegal gratification Zaphyr Car No. KAA‑3089 worth Rs. 14,000 you are thus charged for 'corruption' ; (3) And whereas, you, in the year 1965‑67, while posted as Deputy Commissioner, Gujrat, dishonestly accepted from Muhammad Amin, Peshawari as illegal gratification, furniture worth Rs. 6,395, for issuing a `No‑Objection Certificate' for the construction of a new cinema house in Gujrat, you are thus charged for `corruption' ; (4) And whereas. you, while posted in the above capacity, dishonestly and in consideration of a loan of Rs. 10.000 taken by you, showing undue favour, got deposited into Muslim Commercial Bank Limited, funds amounting to Rs. 4 lacs of the District Council and Rs. 50,000 of the Improvement Trust, although other banks were offering higher and attractive rates of interest, and thereby, caused wrongful loss to the District Council and Improvement Trust, Gujrat, you are thus charged for 'misconduct' ; (5) And whereas, you while posted in the above capacity, dishonestly and in consideration of a loan of Rs. 5.000 taken by you, showing undue favour got deposited. in the United Bank Limited. funds amounting to Rs. 4 lacs of the District Council, although attractive and higher rates of interest were being offered by other banks, and thereby caused wrongful loss to the District Council, you are, thus charged for 'misconduct' ; (6) And whereas, in the declaration of assets submitted under Ordi nance IX of 1969, you wilfully omitted to declare a Toyota Car; of bearing registration No. LED‑5488, ostensibly owned by your wife, you are thus charged for 'misconduct' (7) And whereas, you in the statement of assets submitted under Ordinance IX of 1969, in order to conceal your ill‑gotton wealth, wilfully, undervalued your assets, dishonestly exaggerated your income and omitted to declare the correct value of the Defence Saving Certificates held by you and your family members, you are thus charged for 'misconduct' ; (8) And whereas, you during your service, acquired in your name and in the names of your family members, assets and properties, dis proportionate to your known sources of income, and have also assumed a style of living beyond your ostensible means you are thus charged for being 'corrupt' ; (9) And whereas, the adverse remarks endorsed in your Annual Confi dential Reports by your superior officers, reflect that you are inefficient, you are thus charged for 'inefficiency' ; (10) And whereas, you, enjoy a persistent reputation for corruption, you are thus charged for being 'corrupt'. The charges were enquired into by a Military Tribunal established under Martial Law Regulation No. 58 who vide their report, dated 14th April 1970, (R/1) appended. to the Written Arguments filed by respondents held that all the charges except two charges viz. charges Nos. 2 and 3, were proved against the appellant. The Military Tribunal accordingly recommended that the appellant be dismissed from service and he may also be prosecuted. The recommendations of the Military Tribunal appeared to have been accepted by the President of Pakistan and the appellant was accordingly dismissed from service on 2nd May, 1970. The appellant made various representations before 20th December, 1971, and thereafter against his dismissal which failed to find favour with the authorities concerned. He also filed a Writ Petition which too in pursuance to the provisions contained in Article 212 of the Constitution of Pakistan, was declared to have abated after the establishment of this Tribunal in 1974. Eventually the present appeal was filed before this Tribunal by the appellant on 16th August, 1974. Initially, the appeal was heard in the light of the judg ment of Supreme Court of Pakistan reported as Federation of Pakistan v. Saeed Ahmad Khan (P L D 1914 S C 151). In the aforesaid judgment, it was ruled by the Supreme Court that notwithstanding the validation clause in the Consti tution of Pakistan. 1973 the actions taken under M. L. R. 58, if proved to be mala fide and coram non judice, could still be questioned before the courts of competent jurisdiction. After recording the oral evidence of appellant on 23rd May 1978, we found that the appellant had prima facie made out a case of mala fide. The respondent was called upon to lead evidence in rebuttal. Finally, the appellant raised the following contentions in support of this appeal: ‑ (i) That the impugned order of his dismissal was vitiated due to mala fide on the part of the then President of, Pakistan Gen. Agha Muhammad Yahya Khan and Ch. Zahoor Elahi, a politician of District Gujrat; (ii) That the Military Tribunal constituted under M. L. R. 58 did not provide the appellant with reasonable opportunity to defend. Accordingly to appellant, no evidence was recorded in his presence. Thus he was denied due opportunity to cross‑examine the witnesses. He was also not confronted with the material collected by the Military Tribunal against him. He was not allowed any personal hearing; (iii) That the report of the Military Tribunal was never placed before the President of Pakistan. Thus the order of the President of Pakistan was not based upon the aforesaid report. According to the appellant, in fact, no order was ever passed by the President in his case: (iv) That none of the charges were established against the appel lant. 'The appellant submitted that charges Nos. 1, 2, 9 and 10 were never made the basis of his dismissal as conceded by the respondent in paragraph 19 (f) of the Written Statement. Charges Nos. 2 and 3 were held not proved by the Military Tribunal itself. (See Annexure R/l to the Written Arguments filed by the respondent). As regards Charges Nos. 4, 5 and 7, the appellant submitted that the findings were inconclusive as in the opinion of the Military Tribunal, the said charges needed amendment, and admittedly no amended charge was served upon the appellant at any stage. According to the appellant even suggestions for amendments were based upon mere conjucture and possibilities. For instance, the Tribunal after holding that the loans obtained by the, appellant from the bank were on normal interest rate was little justified to hold that the deposits were made at lower rate of interest for ulterior motives. Such findings were clearly contradictory and self‑defeating. Similarly, the finding that the appellant possibly gave deposits to Muslim Commercial Bank to secure benefit in the purchase of Car was too hypothetical to accord to the accepted standards of proof. Thus legally the same could not furnish any basis for his dismissal. The remaining two Charges Nos. 6 and 8 also did not find any mention and were not discussed in the report of the Military Tribunal. (Annexure R/1). In view of above, the appellant contended that even on the basis of the report submitted by the Military Tribunal, not a single charge could be held to have been proved. Conse quently, there was nothing to sustain his dismissal. As regards the merits of Charges Nos. 6 and 8 the appellant submitted that he had supplied full and voluminous details explaining the income and expenditure position. The appellant relied upon the same to show that expenditure figures adopted by the Military Tribunal were highly inflated and his income had been grossly under‑assessed. The appellant submitted that, in fact, the Military Tribunal had not expressed any opinion on the merits of his conten tions although they, vide paragraph 3 of M. L. A. 58, were under a statutory obligation to record a finding to that effect. Thus there was nothing against hint so. To substantiate his plea of mala fide, the appellant has examined five witnesses including himself. In his own statement, the appellant alleged that in the month of March, 1967, when he was Deputy Commissioner, Gujrat, he was approached by the residents against the objectionable pre sence of Gen. Agha Muhammad Yahya Khan at the house of Mst. Akleem Akhtar alias Rani. The appellant sent them back with an assurance that he will look into the matter in the morning. He accordingly contacted the General at Mst. Rani's house on the next morning where some unpleasantness took place between them. The appellant has produced A.W‑2 Saleem Akhtar, his erstwhile a resident of Mohallah Farooqian, Gujrat City, to corroborate his version above. A.W. 3 Mr. Saadullah, the then S. P., Gujrat, stated that he was also approached by the residents of Mohallah with a same complaint on the same day, but be directed the representationists to contact the appellant. The appellant produced A. W. 4 Mr. A. M. Qamar (his own younger brother) some time a Major in the Pak Army and Major Amir Muhammad AW‑5 who were friendly with late Gen. Khudadad‑ Khan and late Major‑Gen. Kiyani. They stated that through the' aforesaid two Generals, Gen, Agha Muhammad Yahya Khan, was approached to seek `pardon for the appellant, but he declined on the ground that the appellant had given him grave offence. In the light of evidence produced by the appellant, we observed on 23rd May 1978 that the appellant had prima facie made out a case of mala fide and we called upon the respondent to produce the evidence in rebuttal. In reply, the respondent has produced the report of the Military Tribunal, Annexure R/ 1, according to which all the charges except the two (i.e. Charges Nos. 2 and 3) had been proved against the appellant. The respondent also produced a photostat copy of the application (Annexure /R2 to respondents' written arguments), filed by the appellant to Gen. Agha Muhammad Yahya Khan, in which he had described' him as BADSHAH WAQAT . Thus according to the respondent after extolling Gen. Agha Muhammad Yahya Khan,, with the epithet above, he was not entitled to raise and press the plea of mala fide against him. It was also pointed out that to start with the appellant had been alleging mala fide against Ch. Zahoor Elahi and not Gen. Agha Muhammad Yahya Khan. Since the appellant raised the plea of mala fide against Gen. Agha Mohd. Yahya Khan only, after his deposition, therefore, the same merits little consideration. The Department also argued that since mot of the charges had been proved against the appellant, after a proper enquiry, therefore, the impugned order merits to be maintained. In any case, the charges stood proved against the appellant and in view of the severity of the charges so proved, his prosecution was recommended. The orders passed against the appellant also needed no interference in view of the validation clause contained in the Constitution of Pakistan, 1973. The appellant has successfully established from the documents filed by the respondents themselves that there was no clear evidence that any of the charges contained in the charge‑sheet had been established. It is common case that Charges Nos. 2 and 3 contained in the charge‑sheet, even according to the report R1 were not proved against him. The contention of the appellant that Charges Nos. 1, 2, 9 and 19 were not made the basis of the dismissal as conceded in para. 19 (f) the Written Statement, was fully borne out and in fact was not disputed. Similarly, it is also apparent from the Annexure R/1 that Charges Nos. 4, 5 and 7 were suggested to be amended by the Mili tary Tribunal which were not shown to have been amended and the appellant does not appear to have been even called upon to explain the amended charges. Thus the general observations by the Military Tribunal in the beginning of the Report R/1 did not appear consonant with the find ing specified against each charge. As such, the same could not to used against the appellant who was neither served with any amended charges as per findings in the report nor he was afforded with any opportunity to meet the modified charges; if any. As already pointed out, unless the amended charges were served upon the appellant and he was allowed reasonable opportunity to disprove the same, the order could not be sustained under para. 2 of M. L. R. 58 which reads as follows: ‑ "

no action under this paragraph shall be taken in respect of any such person except after informing him of the reason therefore and giving him an opportunity to show cause in writing within a period of 7 days as to why such action should not be taken against him and also an opportunity of being heard in person by a tribunal appointed in this behalf by the authority. The tribunal shall consist of one or more members appointed by the authority from amongst the officers of the Armed Forces of Pakistan. The functions of the Tribunal shall be to give hearing to an accused officer and to submit a report to the authority as to the merit of the contention of the accused officer." We are also disposed to agree with the objection of the appellant that the findings of the Military Tribunal qua Charges Nos.'4, 5 and 7 tended to be conjectural and rested on surmises. The inference drawn by the Military Tribunal appeared to be based upon possibilities rather than facts and reliable evidence. For the aforesaid reasons, we are not maintaining the conclusion, above. As regards Charges Nos. 6 and 8, nothing was produced nor there was any discussion whatsoever in the report‑R/l, to indicate that the Military Tribunal applied their mind or expressed any opinion in this regard. In the absence of any such finding, we are unable to agree with the contention of the respondent that the appellant was guilty of the same. In fact the Military Tribunal failed to report on the merits of the conten tions of the appellant in this behalf, as required under para. 2 reproduced above. As stated earlier, we have already held that the appellant has prima facie succeeded to establish his plea of mala fide against the Compe tent Authority. The respondent has produced nothing to rebut the evidence led by the appellant. Thus our conclusions remain un affected. The order is, therefore, liable to be struck down on that ground also. The plea of the Respondent Department that the prosecution of the appellant was recommended and initiated is equally futile. In the first instance, it is admitted that the prosecution was dropped by the authorities unilaterally. Even otherwise, the following observations by the Supreme Court of Pakistan in In re : Province of East Pakistan v. M. Amir Hussain (P L D 1963 S C 185), as it appeared at page 190, furnish a complete answer to the same . "

To be prosecuted is never in itself misconduct, and as for the sanction of D. P. L. it was in the circumstances a necessary formality. In effect, it is the same as of the Screening Committee had only said may be removed' when there would clearly have been no finding within the meaning, of ordinance." Since none of the charges are shown to have been proved against the appellant, therefore, we are not inclined to uphold the impugned order of his dismissal which is hereby set aside. We may also add that the Supreme Court of Pakistan in its recent judgment in appeal C.P S.L.A. No. 244 of 1978 has ruled that this Tribunal is under an obligation to examine the merits of the case and come to its own conclusion on the question whether the appellants in such cases were rightly retired or not. The Lahore High Court In re: Muhammad Aslam Bajwa v. Federation of Pakistan (P L D 1974 Lah. 545) had earlier also ruled as under :‑‑ "Moreover the bar of jurisdiction contained in Articles 269 and 270 is only against Courts as distinct from Tribunals or other executive authorities. Qua those Tribunals therefore, which are set up under Article 212 there will be no `jurisdiction‑barrier' nor any 'validity barrier,' as the standpoint of the Central Government itself is, which we hereby endorse. The cases will get reopened and the peti tioners will achieve their long cherished demand that they should be provided an opportunity of defending themselves somewhere in some Tribunal or forum." Thus the objection of the Department that the departmental actions/find ings having been validated by the Constitution of Pakistan, 1973 were sacrosanct was evidently untenable. In view of the above finding, we do not feel called upon to express any opinion on the other points raised by the parties. Consequently, the appeal succeeds and is accepted with costs. Appeal accepted.