1991 PLP (C (PLC(CS))

Date of hearing: 10th September, 1990. ABDUL HAMID KHAN (MEMBER): --Shah Muhammad, ASI/25 while posted in District Multan in 1987 was proceeded against departmentally on the following change:

"You ASI Shah Muhammad No.25 are reportedly instrumental in making P.W. Rasool Bakhsh (the only public witness of historical case of recovery of 21 kilo heroin, 50 kilo opium and 1 kilo charas) as hostile Rasool Bakhsh is recovery witness in case F.I.R. No.154, dated 28-5-1987 under section 3/4 Imtinah Munashiat Act, P.S. Lohari Gate. This witness has also got his statement under section 164, Cr. P.C. recorded in the Court of R.M. Lodhran denying the factum of recovery and this was done with your connivance."

2. A show-cause notice containing the above charge was served on the appellant which was denied by him. After taking into consideration the defence produced by the appellant the Authority i.e. Sr. Superintendent of Mice, Multan/respondent No. 1 imposed on him the major penalty of reduction in pay by two stages. The departmental appeal filed by him before the D.I: G. Police Multan/respondent No.2 was also rejected. He has now filed the instant appeal before this Tribunal under section 4 of the Punjab Service Tribunals Act, 1974 against the aforesaid impugned orders dated 1-2-1988 and 5-3-1989 of respondent No. 1 and respondent No.2 respectively.

3. We have heard the counsel for the parties and have also examined the relevant record produced before us. The learned counsel for the appellant's main contention was that this was a case of no evidence and that the entire proceedings had been conducted without any basis or material and the show-cause notice was based on presumptions and suppositions. There was nothing on record to show the appellant's connivance in the matter of the statement. In fact, by the time the departmental proceedings were initiated against the appellant nothing had happened which could indicate that Rasool Bakhsh had turned hostile. The learned counsel for the appellant further submitted that this was a case which involved a factual controversy as to whether the statement in question was got recorded with the connivance of the appellant which charge had been denied by him and this controversy could only be resolved by holding a regular inquiry. This was, therefore, not a fit case to dispense with the regular enquiry by resorting to shorter procedure of show-cause notice. No motive has been attributed. According to the learned counsel for the appellant the most glaring aspect of these proceedings was that both the impugned orders have been passed when the real background relating to the statement of Rasool Bakhsh under section 164, Cr. P.C. was fully known to both the respondents as the matter had comprehensively been thrashed out in the judgment dated 21-12-1987 of the Sessions Judge, Multan wherein it was clearly stated that the said statement had been given by Rasool Bakhsh under coercion. It was, therefore, obligatory upon the respondents to take notice of the facts of which judicial cognisance had been taken.

4. The learned DA. in his reply to the above contentions of the learned counsel for the appellant mainly relied on the written objections submitted by the respondents and stated that the appellant was guilty of misconduct as he was instrumental in making Rasool Bakhsh, the only public witness to recovery, turn hostile.

5. The contention of the learned counsel for the appellant that the show-cause notice was based on presumptions and suppositions and there was nothing on record to show the appellant's connivance in this matter has not been controverter in any manner by the respondents beyond saying that the appellant's explanation to the show-cause notice was found unsatisfactory. There is no evidence available on record connecting the appellant with the aforesaid statement of Rasool Bakhsh P.W. under section 164 of Cr. P.C. The record made available to the Tribunal by the respondents also nowhere indicates that Rasool Bakhsh was associated with the departmental enquiry. During the course of the proceedings the appellant was not confronted by prosecution with any witness or documentary evidence which could connect him with the statement to establish that he had really been instrumental in making Rasool Bakhsh give the statement under section 164 of Cr. P.C. This could have been done only if a regular enquiry had been held in which both the parties were given an opportunity to prove or rebut the charge through evidence and cross-examination. The matter being controversial and the charge being of serious nature it was not a fit case to dispense with the regular enquiry and adopt the shorter procedure. On these two counts we are fortified in our views by the judgements in P L D 1989 SC 335 Samiuddin Qureshi v. Collector of Customs 1989 S C M R 561, Abdul Ghaffar Qureshi v. Federation of Pakistan and this Tribunal's judgment in Case No. 537/70 of 1984 Amir Khan v. S.P., Jhelum and D.I: G., Police, Rawalpindi.

6. In view of the fact that there was no direct legal evidence to show that the appellant had influenced P.W. Rasool Bakhsh in giving statement under section 164 of Cr.P.C. the impugned orders have evidently been passed on presumptions and oppositions. Since the misconduct attributed to the appellant has not been established on the basis of any positive evidence beyond reasonable doubt we proceed to accept the appeal and set aside the impugned orders. There are no orders as to costs. Copies of the signed judgment be released to the parties according to the procedure of the Tribunal. M.Y.H/335/Sr.P. Appeal accepted.