2003 PLP (C (PLC(CS))

Suleman Habibullah, Additional. Advocate‑General Sindh with Akhlaq Ahmed Siddiqui, Advocate‑on‑Record for Petitioners. Nemo for Respondent. Date of hearing: 27th June, 2002. SYED DEEDAR HUSSAIN SHAH, J. ‑‑‑Petitioners seek leave to appeal against the judgment passed by Sindh Service Tribunal, Karachi, hereinafter referred to as the Tribunal) in Appeal No.284 of 1999, dated 31‑1‑2002, whereby appeal filed by the respondent was accepted.

2. Brief facts of the case are that respondent had applied for appointment for the post of Head Constable in training with Sindh Reserve Police through his application dated 3‑7‑1985 and was selected/appointed by the Competent Authority as Police Head Constable on merits. After election, the respondent had immediately undergone recruitee as well as power course at PTS, Baldia, in the year 1985, which he successfully passed, whereafter, had also undergone Intermediate Course at PTS, Shahdadpur in the year 1989 and successfully completed the same in the year 1992. The respondent was found fit for promotion on the basis of seniority‑cum‑fitness for the post of Assistant Sub‑Inspector of Police and 'was promoted as such In the year 1997, the respondent was promoted on merits as Sub‑Inspector of Police, SRP, Karachi. On 28‑4‑1997, one Muhammad Zaheer son of Haji Muhammad Bashir Khokhar resident of Gujranwala had lodged F.I.R No.99/97 at Police Station Saddar, District South, Karachi, for an offence under section 17(3)EHO, 392/34, P.P.C. against police mobile bearing No. SP‑4558 for unlawfully snatching 1100. American Dollars, wherein the name of the .Assistant Sub‑Inspector/respondent allegedly ascertained as Ch. Shafqat was mentioned and on the basis of that F.I.R., matter was reported against the respondent by the Police Station Saddar, Karachi, vide report do.1191‑93 dated 22‑5‑1997. Thereafter, respondent received Show‑Cause Notice bearing No.SRP, Gulshan Base‑II, SSC/5677 dated 23‑5‑1997, on the basis of above‑referred F.I.R., calling upon him to submit his reply within 7 days and respondent through his statement dated 2‑5‑1997, vehemently, denied the charges of Show‑Cause Notice and also requested for personal hearing for further explaining his position. On 7‑6‑1997, final Show‑Cause Notice bearing No.SRP, Gulshan. Base‑II, SSC/6900 on the satire alleged Barges of the earlier show‑cause notice was issued to the respondent. The department also appointed Fact‑Finding Inquiry Committee (hereinafter (erred to as the Committee for fixing of actual responsibilities on the real culprits through order dated 13‑5‑1997, which was investigated by Azhar Rab, DSP/Chairman of Complaint Committee SRP, Unit‑II, Gulshan apse‑II, Karachi. The respondent objected to the above investigation and he as even not allowed to participate in the investigation. Thereafter, investigation was ‑transferred to Haq Nawaz Baloch, DSP, Headquarter, IMP, Unit‑II Gulshan Base‑II, Karachi. During the proceedings of the committee, Muhammad Zaheer‑complainant of F.I.R. No.99 of 1997 filed 5 affidavit dated 14‑5‑1997, by mentioning that complainant had not identified the respondent. Subsequently, the respondent alongwith other co accused were charge‑sheeted to face the trial for the crime mentioned above the Court of Additional Sessions Judge, who conducted the trial, and after conclusion of the trial, through judgment dated 20‑8‑1998, acquitted the respondent and other co‑accused observing that charges against them were not proved. The respondent was dismissed from service by order dated 21‑8‑1997 on the allegation of his involvement in criminal case under Rule 9(b) she Sindh Police (E & D) Rules, 1988.

3. The respondent preferred departmental appeal against the said dismissal order, mentioning full facts, and circumstances, requesting for his exoneration from the above charges but his departmental appeal was rejected through order dated 1‑1‑1999. Lastly, finding no other way out, responder approached the Tribunal through appeal under section 4 of the Service a Tribunals Act, 1973, which was allowed. Hence, this petition.

4. We have heard the learned Additional Advocate‑General for the petitioners, who, inter alia, contended that Tribunal did not consider the case in its proper perspective and that respondent was prosecuted for a criminal offence though he was acquitted by the trial Court but the judgment of the Tribunal is not sustainable.

5. We have considered the arguments of the learned Law Officer and have carefully examined the record. The trial Court after conclusion of the trial, acquitted the respondent of the charges; as the same were not proved Against him.

6. The respondent was dismissed from service on the bags of a investigation of the case, whereas judgment of the trial Court, whereby the respondent was acquitted, was not considered by the department. It is borne out from 'the record that the regular enquiry, as required under Sindh Police E & D) Rules, 1988, was not conducted, whereas the Committee was constituted in which respondent was not even allowed to participate. The Tribunal, after careful consideration and following the rule laid down by this court in the case of Rashid Mehmood v. Additional Inspector‑General of Police and 2 others (2002 SCMR 57), wherein, it was held that departmental authority failed to conduct any regular inquiry against the respondent, therefore, there was no ground to hold the respondent guilty of misconduct, and reinstated the respondent. By now, it is settled law that a proper inquiry is to be conducted, wherein Government servant is to be provided an opportunity of defence and personal hearing, and if charges in regular inquiry are proved then action against the public servant is to be taken.

7. The dismissal order was passed on the recommendations of Fact Finding Inquiry Committee, which investigated the case, in which respondent was not allowed to take part. The respondent was acquitted, by the Court of law meaning, thereby no material was available with the petitioners to take action and impose major penalty on the respondent.

8. The impugned judgment is based on valid and sound reasons and is entirely in consonance with the law laid down by this court. Neither, there is misreading, nor non‑reading of material evidence, nor misconstruction of facts and law. Moreover, the question of general public importance as contemplated under Article 212(3) of the Constitution of the Islamic Republic of Pakistan, 1973, is not involved in this Case.

9. For the facts circumstances and reasons stated hereinabove the petition is without merit and substance, therefore, the same is hereby dismissed and leave declined. Q.M.H./I‑63/S Petition dismissed.