1988 PLP (C (PLC(CS))

MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).--Appellant Sheikh Farid Khan was working as Sub-Inspector/ S.H.O. , Police Station, Bagnoitar Tehsil and District Abbottabad when in consequence of an application by one Haji Muhammad Hussain s/o Barkatullah an enquiry was conducted against him at the behest of S.S.P. Head-quarters, Abbottabad, by ASP, Havailian Circle, as a result of which he was dismissed from service vide order dated 2-5-1987 passed by respondent No.2. According to him he joined the Police Force, Swat in the year 1964 and was transferred to Hazara Range, Abbottabad in the year 1977. At the relevant time he was posted as S.H.O. Police Station, Bagnotar when one Munsif s/o Qamar Zaman made a report entered at S.No.13 dated 16-9-1986 regarding the missing of his minor daughter Mst. Ansar Jan. The appellant took the permission from the Illaqa Magistrate under section 156(3), Cr.P.C. for enquiry which was entrusted to A.S.I. All Asghar. In the meanwhile one Haji Muhammad Hussain s/o Barkatullah resident of Lower Malikpura, Abbottabad filed the report at P.P. Abbottabad on 16-9-1987 regarding the same girl and further stated that she had slipped away from his house. Another application was addressed to S.S.P., Abbottabad alleging the payment of Rs.10,500 to the appellant through constable Muhammad Farid and A.S.I., Ali Asher as illegal gratification. A preliminary enquiry was conducted and on the basis of the same show-cause notice was issued to the appellant, which was contested by him but respondent No.2 without framing the charge-sheet and summary of allegations appointed Mian Zafar Ahmad Qureshi A. S. P. Havalian as Enquiry Officer. The appellant submitted an application to the respondent No.2 for the appointment of some other officer than the A.S.P. who was on inimical terms with him as the appellant had not obeyed the illegal orders of the Enquiry Officer in a previous case. His request was turned down and the application was also removed from the file. No independent and impartial witness supported the charge of the complainant Haji Muhammad Hussain, the appellant was serving at the time of dismissal at Kohistan while the orders were passed by S. S. P. ; Abbottabad who was not competent to announce the impugned order but he could only send the enquiry report to the S.P. Kohistan. Moreover, the impugned order was illegal, biased, void and without jurisdiction. Claim of the appellant was vehemently resisted by the respondents who submitted the written statement and after going through the record we propose to dispose of the case as under, in the light of the arguments advanced by the parties. A perusal of the record shows that no charge-sheet/summary of allegations was framed in the instant case and the entire proceedings were conducted on the basis of the show-cause notice served upon the appellant. This was the inherent defect in the enquiry proceedings and it is not curable at any cost. Besides this the appellant submitted an application expressing his no confidence in the Enquiry Officer at the very outset and the allegation was not denied in implicit words by the respondents. Mere refusal is not sufficient. It was a serious allegation and it must have been replied in clear and unequivocal words. Over and above this the career and service of an officer was involved and the Enquiry Officer being a quasi-judicial man, as held by the superior Courts of the country, the appellant must have confidence in him. The functions of an Enquiry Officer are just like a Court but the enquiry reveals that the appellant was not given the opportunity to cross-examine the witnesses in accordance with the provisions of Evidence Act. The witnesses must have been given the oath and instead of the question answer form, the Enquiry Officer was duty bound to write the same in the narrative form. On the basis of the above we set aside the impugned orders, by accepting the present appeal and remand the case to Senior Superintendent of Police, Abbottabad with the direction to initiate a de novo enquiry against the appellant within a month, of the receipt of the order by framing a charge-sheet/summary of allegations and appointing an efficient and honest Police Officer as Enquiry Officer. Appellant is entitled to receive the pay/allowances for the period from which he was dismissed from service. File be consigned to the record room. Parties are left to bear their own costs. S.Q. /72/Sr.N Appeal accepted