1995 PLP (C (PLC(CS))

(a) Looting of KIL oil at Ghas Mandi. (b) Looting a General Store on Nishtar Road Near Lasbela Chowk. (c) Looting of delivery Van of Gold Leaf Cigarettes at Nazimabad. (v) You had arrested about three gangs of dacoits about 20 in number and released them under section 169, Cr.P.C. after taking bribe of Rs.3,00,000. (vi) You have been indulging in such practices during your stay at various Police Stations. The above allegations against you constitute charge of "Corruption" within the meaning of rule 3(c) of the Sindh Police (E&D) rules, 1988." Once again the appellant repudiated all the charges made against him hereinabove, accompanying the revised show‑cause notice. The service of the show‑cause notice instead of the charge‑sheet was indicative of the Authority's intention to adopt the procedure mentioned in sub‑clause (i) of clause (b) of sub‑rule (3) of Rule 6 of the said rules. Thus, the procedure followed by the Authority did not envisage holding of a regular enquiry. However, in Para 5 of his memo of appeal the appellants statement is that two enquiries were conducted, one by Mr. Ch. Muhammad Ashraf Ghumman, D.S.P. and the other by Mr. Asad Jehangir Khan, D.I: G.P. In the corresponding para. 5 of the written statement all that has been admitted is that the D.I.G.P., Karachi got an enquiry conducted through Mr. Muhammad Ashraf Ghumman, DSP/SDPO, Ferozabad. We have also come across the said D.S.P's. report dated 17‑2‑1993 made to the D.I.G.P., Karachi. In the concluding para. of his report he has expressed his view in these words: "Inspector Choudhry Abdul Latif is not at fault and found innocent. Hence no action against him is required:" But the enquiry held by aforementioned D.S.P. was not held in accordance with the said rules. Neither it was held in presence of the appellant nor any witness was examined in course of the enquiry nor the appellant was allowed any opportunity for his defence. Even a copy of enquiry report was not supplied to the appellant. As for the other enquiry allegedly made by the D.I.G.P., Asad Jehangir Khan, of which the mention has been made by the appellant in his memo of appeal it is not admitted by the other side. Nevertheless our attention was invited to the Annexure `G' at page 57 of the case file which obviously is a report submitted by the said W.‑G.P. to the Commander, Headquarter, Corps Reserve 5 Corps Malir Cantonment, Karachi. The said report is based on certain enquiries made with regard to the appellant. There is no trace of evidence before us to hold that the said report was the outcome of any enquiry personally made by the D.I.G.P., Asad Jehangir Khan. In any case in the said report too the appellant has been exonerated. This is clear for the concluding para of the report, which reads as under: "From the enquiries it reveals that the allegations against Ch. Abdul Latif are based on presumptions and the allegations are unfounded and baseless." The D.I.-G.P. has passed the final order dated 24‑5‑1993 which is the culmination of the disciplinary proceedings taken out against the appellant. It may be pertinent to refer to last para. of the order which reads as under: "

5. In view of the above, it is not possible to take a decision unless documentary/other proofs regarding allegations are available: As such, it is recommended that a full-fledged departmental enquiry should be initiated and an E.O. nominated to resolve this matter before a final decision is taken. The Inspector has already been released from suspension by the I.G.P., Sindh vide Order No. 7171/E.II, dated 4‑5‑1993, will be decided later on." It would be noticed that, the above order is neither of punishment nor of exoneration of the appellant. It is rather a direction for holding a fresh full-dress enquiry in the matter for which Enquiry Officer was to be nominated. Keeping the D.I.G.Ps. said order in view, the appellant's learned counsel submitted that the provisions of sub‑rule (i) of rule 12 of the said rules under which the I.G.P. has passed the impugned order were not attracted for upsetting the D.I.G.P's. said final order. The amended version of the said sub rule is as under:‑‑ "(i) The Inspector‑General, Additional Inspector‑General, a Deputy Inspector‑General and a Superintendent of Police may call for and examine the record of any case and (a) may award any punishment specified in sub‑rules (a) and (b) of rule 4, in any case in which no punishment has been awarded; and (b) confirm, enhance, modify or annul the punishment in any case in which any punishment specified in sub‑rules (a) and (b) of rule 4 has been awarded; and make or direct to be made further investigation before passing orders." After going through the above sub‑rule, we regret our inability to endorse the interpretation made by the appellant's learned counsel of the said sub‑rule. The I.G.P. had power under the aforesaid sub‑rule to call for and examine the record of 'any case' which in our opinion, includes even the case of the present nature in which the order involved is neither of punishment nor of exoneration but is of fresh proceedings. However, we are unable to support the I.G.P's. impugned order on merits. The reasons given by the I.G.P. in support of his order are seemingly b4sed on presumptions angible evidence has been produced on record to substantiate his conclusions. In any case such evidence has not been brought to the notice and knowledge of the appellant nor has he been afforded Opportunity to take care of the same. That is why the D.I.G.P. in his order had felt the necessity of holding a full-dress enquiry through Enquiry Officer. Because unless the evidence referred to in the I.G.P's. order is formally produced bore Enquiry Officer in course of enquiry held in presence of the accused official (appellant) who is again given opportunity to counter the said evidence both through cross‑examination of the witnesses producing such evidence and by examine his own witnesses in defence, it cannot be used for the purpose of inflicting punishment on him. Apart from above, as required by sub‑rule (4) of rule 6 of the said rules, on receipt of the appellant's reply, as no formal enquiry has been held in the present case, the Authority had to first determine if the allegations made against the appellant were proved and it was only in that case that he could proceed further to award any of the prescribed punishments to him. As stated above neither formal enquiry was held against the appellant in his presence nor any material in the nature of evidence was supplied to him alongwith the show cause notice. Therefore, only two documents namely the show‑cause notice and appellant's reply were before the I.G.P. for determining the guilt of the appellant. Any other material even if within the knowledge of the I.G.P. could not be used against the appellant if it had not been first brought to the notice of the appellant, allowing him opportunity of defence against such material. In these circumstances the I.G.P. was not in a position to hold that the charges made against the appellant were proved. Moreover, it was rather difficult to accept the uncorroborated and untested views of the I.G.P., about the appellants guilt in the face of the clear findings of not only of the D.S.P., Muhammad Ashraf Ghumman who had made an informal enquiry but also of the D.I: G.P., Karachi whose role in the present case was of Authority. Both the said officers are unanimous in declaring that the appellant could not be punished in the material before them, though the authority (i.e. the D.I.G.P.) while passing the final order had directed that fresh full‑fledged enquiry be held through Enquiry Officer to be nominated foe the purpose. We may also refer to the Supreme Court authority reported as Aslam Warraich v. Secretary, Planning and Development Division (1991 SCMR 2330) Therein it was held: "In the light of the foregoing discussion we accept these appeals and remand the cases to the Department concerned for consideration of the representations submitted from the respondent's side on merits and to decide the same by reasoned orders. And with the further directions that the reasons should also be conveyed to the respondents. The respondents shall be at liberty to amend their representations and include additional grounds either of facts as alleged in two civil petitions dealt herein or of law. There shall be no order as to costs." The above authority clearly shows that the reasons that influenced the decision of the I.G.P. as revising authority should have first been conveyed to the appellant giving him chance of meeting the same. In the light of above discussion we are inclined to agree with the D.I.PG.P. (i.e. Authority in this case) that this is a fit case in which comprehensive enquiry be held taking care for strict compliance of the requirements of the rules. Accordingly we allow the appeal with no order as to costs and set aside the impugned order. The case is remanded back to the Authority concerned for holding full-dress enquiry beginning with service of necessary charge‑sheet and statement of allegations on the appellant. H.B.T./597/Sr.S Appeal allowed.