P L D 1965 (W (PLP)

6. Learned counsel submits that the only material which touches upon this aspect of the conditions of service of Government employees is contained in a Memorandum issued by the Additional Chief Secretary to the Government of West Pakistan under No. S(R)21‑43/57 S. O. K‑III on the 16th of November 1957 to all the Commissioners of the Divisions containing instructions for the speedy disposal of disciplinary cases. Paragraph 4 of this Memorandum runs as follows:‑ "It had been observed that, on being placed under suspension, an officer is generally prohibited from leaving the station. This is permissible where it is felt that, unless he is confined to a particular station, he might tamper evidence likely to be produced against him, but such prohibition should not be in force if there is no valid cause for such apprehension. He should simply be required to inform the authorities concerned of his movements." This instruction was continued by another letter issued by the Chief Secretary to the Government of West Pakistan.

7. Paragraph 4 of the Memorandum can lead one to the only conclusion that unless an order prohibiting such an officer from leaving a station is passed there is no particular restraint upon him in doing so except the usual information which he has to give to his superior before he leaves the station. Had this not been so this Memorandum would not have used the expression‑ "An officer is generally prohibited." On the face of it, it is difficult to rebut this argument.

8. Section 7 of the Police Act authorises 'the Provincial Government to make rules for the control of disciplinary action against police officer of the subordinate ranks. "Subordinate ranks" has been defined in the interpretation clause as members of the police force below the rank of Deputy Superintendent. The rules made under section 7, therefore, although not applicable to the present petitioner, who is admittedly a Deputy Superintendent of Police, will nevertheless be helpful in determining the question involved in this case. Rule 16.21(2) of the Police Rules contained in Volume II runs as follows:‑ "16.21(2): A police officer under suspension shall be transferred to the lines, if not already posted there. He shall attend all roll‑calls and shall be required to perform such duties and to attend such parades as the Superintendent tray direct; provided that he shall not perform guard duty or any other duty entailing the exercise of the powers or functions of a police officer; shall not be placed on any duty involving the exercise of responsibility, and shall not be issued with ammunition. A police officer under suspension shall ordinarily be confined to lines when off duty, but shall be allowed the reasonable facilities for the preparation of his defence . . . ." This rule specifically requires the posting of a suspended police officer to the Lines; and also lays down the functions that he is required to perform during this state of suspension. No such provision has been pointed out to me by the learned counsel for the parties in the rules which govern the conditions of service of Deputy Superintendents of Police or officers of grades higher than an Inspector of Police. In the absence of such a provision in those rules it cannot be argued that an officer not governed by rule 16.21. can be subjected to a similar restraint or can be‑ required to confine himself to a district in which he was posted at the time the order of suspension was passed. As already stated he could be expected only to conform to the normal requirement of informing his officer of his whereabouts before leaving the station so as to enable the former to locate him for the purpose of the service of process upon him, in connection with the inquiry to be held against him.

9. Section 29, under which the petitioner has been charged arms the relevant part of which has been reproduced above, can be split up into two portions, namely‑ "(i) who shall withdraw from the duties of his office without permission; (ii) or, without having given previous notice for the period of two months." A reading of the provisions of the Act would show that both these portions of section 29 have reference to section 9 of the Act which runs as follows:‑ "No police officer shall be at liberty to withdraw himself from the duties of his office unless expressly allowed to do so by the District Superintendent or by some other officer authorised to grant such permission, or, without the leave of the District Superintendent, to resign his office, unless he shall have given to his superior officer notice in writing, for a period of not less than two months, of his intention to resign." The second portion of section 29, therefore, which deals with the giving of notice before withdrawing from the duties of his office, relates to cases of resignation only as is clear from the second part of section

9. It is no body's case that Mirza Muhammad Abbas bad resigned his post. This portion of section 29 is, therefore, not applicable to him.

10. As for the first portion, which makes withdrawal from duty without permission penal, it relates to the first part of section

9. Withdrawal from duty contemplates that the person concerned has some duties to perform under the rules or the law. It was contended that the last paragraph of section 8 of the Act provides that a police officer who has been suspended from office does not cease to be a police officer and‑ "shall continue subject to the same responsibilities, discipline and penalties and to the same authorities, as if he had not been suspended." A perusal of section 8 of the Act, which I would presently demonstrate is not applicable to the petitioner, shows that during the time of suspension of police officers governed by section 8, their‑ "powers, functions and privileges vested in him as a police officer shall be in abeyance . . . . ." These words are, in fact, a restatement of the general principles applicable to the status of a suspended officer. When an order is passed placing a Government servant under suspension what, in fact, is being suspended is his capacity to perform the functions oft his office, to exercise the powers which he would otherwise have enjoyed as such officer, to perform the duties normally assigned to an officer of that rank and of course to draw his pay for only a subsistence allowance is paid to him in place of salary. In other words, an officer placed under suspension has no duties to perform, and if he has no duties to perform the question of withdrawing himself from duties of his office can naturally not arise.

11. In such a state of affairs section 9 no longer remains applicable and since there are no duties to perform the question of withdrawal from them would not arise and the penalty imposed in section 29 would not be attracted to the case of such a one.

12. It is significant that while section 9 talks in terms of duties as do sections 22 and 29, section 8 advisedly does not use the expression but says,‑ "shall continue subject to the same responsibilities, discipline and penalties." The word "duties" has not been included in the last paragraph of section 8 because performance of duties and suspension could not possibly go side by side.

13. The same problem may be looked at from another angle. It is the withdrawal from duties without permission that has been made penal by section

29. The duties of a police officer have been enumerated in the Act itself. Sections 23 and 25 lay down the duties and their perusal would show that asking for permission before leaving a district is not included in them. That being the gravamen of the charge against the petitioner it cannot be covered by section 29 which as we have already seen is a penalty for withdrawal‑ "from the duties of his office without permission." And it is understandable that the Legislature did not want to place such a lapse on the part of a police officer on the same footing as dereliction of duty which has been made punishable inter alia by imprisonment not exceeding three months.

14. It was contended by the learned Assistant Advocate --General that the last paragraph of section 8 provides that‑ "a police officer shall not by reason of being suspended from office cease to be a police officer." and that since he continues to be a police officer he is liable .under section 9 not to withdraw himself from the duties of his office and under section 22‑ "to be considered to be always on duty" and, therefore, his leaving the district without permission was, in fact, synonymous with withdrawal from his duties. We have already seen above, that an officer under suspension does not perform any duties and, in fact, if the portion of section 8 following the portion quoted above were to be read, it will be found that it says that during the term of such suspension the powers, functions and privileges vested in him as a police officer shall be in abeyance. The mere fact, therefore, that he continues to be al police officer does not mean that he continues to have functions to perform and, in fact, it has' been so stated in no unmistakable terms.

15. I stated above that section 8 was not applicable to al Deputy Superintendent of Police. The opening part of section 8 reads as follows: "Every police officer appointed to the police force other than an officer mentioned in section 4 shall receive on his appointment a certificate in the form annexed to this Act. " The officers enumerated in section 4 are Inspector‑General of Police, Deputy Inspectors‑General, Assistant Inspector‑General, District Superintendent and Assistant Superintendents. If we turn to the interpretation clause we find that the word "District Superintendent" includes‑ "or other person appointed by general or special order of the Provincial Government to perform all or any of the duties of a District Superintendent, of Police under this Act in any district. Police Rules contained in Volume I reads as follow: "The powers and duties of Assistant and Deputy Superintendent of Police are the same and interchangeable. They derive their powers from the fifth definition in section 1 of the' Police Act (V of 1861) and from 551 of the Code of Criminal Procedure Assistant and Deputy Superintendents of Police are posted to districts and other duties at the discretion of the Provincial Government to be trained and to assist the Superintendent in the discharge of his responsibilities, and the authority of the Superintendent is delegated to them to the extent prescribed by these Rules. We, therefore, find that the Superintendents of Police are required to perform some duties of a District Superintendent of Police under general orders contained in these rules. A Deputy Superintendent is, therefore, included in the expression "District Superintendent" as defined in section 1 of the Police Act and as used in section 4 of the Act. Being a person thus mentioned in section 4 of Deputy Superintendent of Police is an; officer not covered by the provisions of section 8.

16. Enquiries made by me from the learned Assistant Advocate‑General and the police officer assisting him in Court have revealed that, as a matter of fact, no certificate as is laid down in section 8 is ever issued to a person holding the rank of Deputy Superintendent or above. The whole scheme seems to be to, have two compartments in the police service, one consisting of gazetted police officers of and above the rank of Deputy Superintendent of Police and another comprising of enrolled police officers of and below the rank of Inspectors. This is explicit from rule 1.13 of the police Rules.

17. The circumstance, under which the last paragraph of section 8, on which reliance has been placed by the learned Assistant Advocate‑General was 'brought on the statute book may be of some interest.

18. The statement of Objects and Reasons of the Police Act (1861) Amendment Act, 1895 (VIII of 1895) discloses that the amendment had to be made because of two decisions of High Courts. Learned counsel for the petitioner had adverted my attention to those two decisions which are: Queen‑Empress v. Durga (I L R 10 All. 459) and Queen v. Dina Nath Gangoli ((72) 8 Beng. L R (App.) 58). I have before me the former case in which it was held‑ "Section 29 of Act V of 1861 contemplates that the person to be charged with an offence under it must have been, at the time of his being the act in respect of which the charge is preferred, a police constable within the meaning of that Act. When a police officer is suspended he ceases to be a police officer." The other case has been noticed in this decision. The amendment seems .to have been brought about due to the following observation in the judgment‑ "It is of no use framing rules and formulating police manuals, if such rules and the directions in such manuals are not authorised by or are in hostility with the statute, and I think the 'subject is one which may fairly claim attention at the hands of the local Government, especially just now, when there are so many complaints of the working of the present police system, and a thorough overhauling and re‑organisation seems desirable."

19. Interpretation of section 8 as it then existed, i.e., shorn of the last paragraph which is now a part of it, was that a police officer when suspended ceased to be a police, officer. Paragraph 4 of the statement of Objects and Reasons of this Act reads as follows:‑ "It has been held by two High Courts that at present a policeman when suspended, even temporarily, ceases to be a member of the police force and is no longer amenable to the provisions of Act V of 1861. Section 3 of the Bill will enact that a police officer shall not by reason of being suspended from office cease to be a police officer or to be subjected to responsibilities and discipline as such." The result is that as a consequence of suspension of police officer to whom section 8 is applicable does not cease to be a police officer and by virtue of rule 16.2(2) of the Police Rules he will continue to have duties to perform. The section itself not being applicable to the petitioner the amendment does not affect him.

20. My conclusions, therefore, are: (1) that having been placed under suspension the petitioner had no duties to perform as contemplated by the Police Act V of 1861, (2) there being no duties to perform the question of withdrawal from such duties did not arise, and, therefore, (3) section 29 is not attracted to the facts of the case. The instant prosecution is, therefore, very such an abuse of the process of the Court and to secure the ends of justice it is necessary to quash the proceedings pending under section 29 against the petitioner in the Court of the Additional District Magistrate, Muzaffargarh, and they are hereby quashed. A. H.