1990 PLP (C (PLC(CS))

The charge‑sheets alongwith statement of allegations were issued to the accused Police Officers vide this office No. 164, 165, 166, 167 and 168/EC, dated 28‑3‑1982. The charge sheets alongwith statements of allegations were entrusted to the various police officials for service upon the accused Police officers. But the same could not be served upon them as all of them absconded immediately after the alleged death of Kamran Raze alias Nanna in Police custody. None of them was available at the known places of their Residence. However, the charge‑sheets and statements of allegations were delivered to the wives of S.I. Muhammad Saleern and A.S.I. Muhammad Havat, whereas those were pasted on the doors of the houses of A.S.I. Ilam Din, Constable Muhammad Siddique No.799 and Constable Atta Ullah No.439 in the presence of the respectable of localities by the officials deputed for this purpose on 30‑3‑1983, 30‑3‑1982 and 31‑3‑1982, 31‑3‑1982 and 30‑3‑1982 respectively. None of the accused Police Officers either submitted his written reply to the charge sheet nor appeared before the undersigned to explain his position. It was therefore, decided to proceed against them ex parte. D.S.P. Narowal was appointed as the enquiry officer. He has submitted his findings dated 10‑4‑1982 after conducting the due proceedings and recording the statements of relevant prosecution witnesses. He has held all the accused Police Officers guilty of the charges and recommended the major penalty including dismissal from service against all of them. I agree with the findings of the enquiry officer. Keeping in view the grave nature of allegations and the wilful absence of all the accused Police Officers. I, hereby in exercise of the power conferred upon me under rule 6 Punjab Police (E & D) Rules, 1975 dismiss all the accused Police Officers mentioned below w.e.f. 10‑4‑1982 (F.N.): --‑ (1) S.I. Muhammad Saleem No. 102/GL. (2) A.S.I. Muhammad Hayat No. 479/SKT. (3) A.S.I. Ilam Din. (4) Constable Muhammad Siddique No.799. (5) Constable Atta Ullah No.439. Issue Orders in OB and‑all concerned to note. Sd/ Superintendent of Police, Sialkot.

11. It would be advantageous to also reproduce hereunder the reinstatement order dated 19‑9‑1987 of the D.I: G. Gujranwala. "Have read an appeal submitted by Ex‑S.I. Muhammad Saleem No.102/GL against his dismissal from service ordered by the then S.P./Sialkot vide his order 13777‑88, dated 11‑4‑1982 on the charge of misconduct regarding kidnapping, wrongful confinement and allegedly torturing Kamran Raza alias Nanna r/o Oila Lakshman Singh Ravi Road, Lahore to death and having been involved in case F.I.R. No. 42, dated 10‑3‑1982 under section 344/365, P.S. Pasrur and case F.I.R. No.66, dated 14‑3‑1982 under section 364/302/201/34, P.P.C., P.S. Ravi Road, Lahore while posted as S.H.O., P.S. Pasrur, District Sialkot. The parawise comments offered by S.P./Sialkot have been perused. The appellant has also been heard in person in Orderly Room on 13‑9‑1987. The appellant in his appeal as well as during personal hearing pleaded his innocence. He has submitted an attested copy of judgment of Additional Sessions Judge, Lahore, Saba Mohy‑ud‑Din Khan vide which the appellant has been acquitted of the charge. On the basis of the judgment of Additional Sessions Judge, Lahore I set aside the order of his dismissal passed by S.P. Sialkot and re‑instate the appellant in service w.e.f. 10‑4‑1982 the date of his dismissal with all back benefits. The period he remained out of service subsequent to his dismissal shall be treated as leave of kind due and the period of suspension if any as duty period. Order announced. Sd/‑ Muhammad Amin, Dy. Inspector‑General of Police, Gujranwala Range, Gujranwala. 19‑9‑1987."

12. It would be seen that the dismissal order dated 10‑4‑1982 was passed against the appellant by the S.P. Sialkot as "Authority", under the Punjab Police (E & D) Rules, 1975, which provided for a limitation period of 30 days for filing an appeal with the "Appellate Authority" i.e., D.I.‑G. Gujranwala but it took the appellant more, than five years to do so. Thus he failed to file an appeal against the dismissal order dated 10‑4‑1982 within the prescribed time limit in the proper forum. Even on being arrested as a Proclaimed Offender on 21‑4‑1986, he did not prefer any appeal before the D.I.‑G. The appellant has not challenged the dismissal order even uptil now, either in any Court of law, or before this Tribunal. It was only after the pronouncement of the judgment dated 22‑6‑1987 that he filed an appeal before the D.I.‑G. Gujranwala who without taking any notice of the fact that by then the appeal had already become unjustifiably and un-condonable time‑barred, readily passed the reinstatement order dated 19‑9‑1987. Though the appeal filed by the appellant merited outright dismissal on the point of limitation alone, yet the D.I.‑G. Gujranwala. proceeded to pass the reinstatement order dated 19‑9‑1987, in flagrant violation of the relevant mandatory provisions of the law of Limitation', as well as, of the Punjab Police (E & D) Rules, 1975, regulating "Limitation". In the aforestated circumstances, it was obviously not competent for him to have entertained and admitted the appeal, and to have passed the reinstatement order dated 19‑9‑1987, without first deciding the question of 'Limitation', which was of paramount importance in the case.

13. The D.I.‑G. Gujranwala has passed the reinstatement order dated 19‑9‑1987 entirely on the basis of the judgment dated 22‑6‑1987; without assigning any other reason or ground, factual or legal, whatsoever, for the same; and without appreciating that the dismissal order dated 10‑4‑1982 against the appellant had never been a matter or an issue sub judice before the learned Additional Sessions Judge, Lahore. As already stated the dismissal order dated 10‑4‑1982 had been based upon the Enquiry Report of the Enquiry Officer i.e., D.S.P. Narowal, who had found the appellant (and his accomplices) guilty of the charges inquired into. The appellant never challenged the Enquiry Report and findings of the Enquiry Officer against him, either before any Court of law, or before this Tribunal, and the same have not been even touched upon by the D.I. G. Gujranwala while passing the reinstatement order dated 19‑9‑1987. Consequently, the enquiry report and the findings dated 10‑4‑1982 of the Enquiry Officer, as against the appellant, still stand intact and undemolished. In this view of the matter, it was not competent for the D.I.‑G. Gujranwala to have set aside, just summarily and arbitrarily, the dismissal order dated 10‑4‑1982.

14. It has been clearly admitted in the written objections filed by the S.P. Sialkot and the D.I.‑G. Gujranwala, before this Tribunal, in context of the present appeal that "the appellant after registration of the criminal case against him, during March, 1982, had absconded, and was declared a Proclaimed Offender. The appellant did not remain in Jail during the investigation, and hence he did not deserve full pay for the period of his absence:" The appellant has not been exonerated by the learned Additional Sessions Judge, Lahore vide his judgment dated 22‑6‑1987, of the aforementioned disturbing traits of his personal conduct; normally, unbecoming of a civil servant or a gentleman. The charges against the appellant in the criminal cases, if correct, were certainly heinous. In addition abuse and misuse of official position was also involved. An innocent person implicated falsely in a criminal case would not abscond, but gracefully surrender to the due process of law, face his trial in the Court of law boldly, and prove his innocence there. But the appellant preferred to flout the law of the land, to the extreme. The reinstatement order dated 19‑9‑1987 of the D.I.‑G. Gujranwala is totally silent about those facts. He ought to have reviewed and justified these disturbing facts of the appellant's case, while passing the reinstatement order dated 19‑9‑1987; but he did not consider it proper; and the omission could be due to anything but chance error or ignorance of facts or law. It was, therefore, not fair, just and competent for him to have set aside the appellant's dismissal order dated 10‑4‑1982 arbitrarily; and pass a perfunctory reinstatement order dated 19‑9‑1987, just for rewarding the appellant; for his absconsion and wilful absence from duty, for more than five years; not only with his reinstatement in service w.e.f. 10‑4‑1982, but also with all back benefits w.e.f. 10‑4‑1982 to'19‑9‑1987.

15. As would appear from the judgment dated 22‑6‑1987, Muhammad Hayat A.S.I., Ilam Din, A.S.I. and Muhammad Siddiq Constable accomplices of the appellant, in the two criminal cases were tried by the "Special Military Court"; convicted and sentenced to different terms of imprisonment, on their having been found guilty of the charges, brought against them, by the prosecution. Had the appellant not absconded and had he been tried alongwith his aforesaid accomplices, by the same Special Military Court, at the same time, his fate would not have been different. Earlier to that, and shortly after the registration of the criminal cases, they were all found guilty of the charges enquired into by the Enquiry Officer, who had recommended imposition of major penalty against all of them, in consequence of which the appellant had been dismissed from service vide dismissal order dated 10‑4‑1982. The judgment dated 22‑6‑1987 reveals that the appellant was apprehended as late as on 21‑4‑1986, after his absconsion during March, 1982, and he was acquitted of the charges under section 302/364/201/ 139/147/149, P.P.C. on 22‑6‑1987; fourteen prosecution witnesses were examined against him (and his accomplice Ata Ullah Constable) during their trial; out which three prosecution witnesses were formal; and all the remaining eleven prosecution witnesses had resiled. Syed Maqsood Ali, father of Kamran Raza, the victim of the alleged crime the complainant and the principal prosecution witness in the criminal cases against him was not examined during trial, because by then he had expired, as deposed by P.W. 11 Aamer Hameed during the trial. The Investigating Officer, who was the most material prosecution witness in the peculiar circumstances of the case, had also not been examined. The remaining prosecution witnesses were either given up or were not examined by the prosecution. The absconsion of the appellant paid him rich dividend, and came to his rescue, because during that fairly long period, whatever incriminating evidence had been brought on record earlier either during the departmental enquiry or during the trial of the appellants' three accomplices before the Special Military Court, had gone hostile. Resultantly, the trial of the appellant ended in fiasco due to the resiling of all the prosecution witnesses examined by the prosecution against him. Thus the acquittal of the appellant resulted solely due to resiling of all the Prosecution Witnesses examined; and due to non‑examination of the complainant, Syed Maqsood Ali, as well as the Investigating Officer; and. as such acquittal of the appellant was neither on merits, nor because of is innocence and, therefore, not honourable. Moreover, his dismissal was not under adjudication in the Court of learned Additional Sessions Judge, Lahore, who never exonerated him of the charges of misconduct, absconsion and wilful absence from duty for more than five years. It was, therefore, erroneous, incompetent and illegal for the D.I.‑G. Gujranwala to have arbitrarily ordered reinstatement of the appellant, vide his order dated 19‑9‑1987, solely on the basis of the judgment dated 22‑6‑1987.

16. Resultantly, we find that the reinstatement order dated 19‑9‑1987 is arbitrary, illegal, ultra vires and of no legal consequence, and the same is therefore, hereby set aside. Consequently the dismissal order dated 10‑4‑1982 of the S.P. Sialkot is upheld, which having attained finality is still operative, as against the appellant, with the result that he continues to remain dismissed from service w.e.f. 10‑4‑1982.

17. Thus the instant appeal fails, and the appellant is therefore, not entitled to any of the benefits of service w.e.f. 10‑4‑1982. There will be no order as to costs. A copy of this decision may be furnished to the Inspector‑General of Police, Punjab, Lahore for information and requisite action. AA./265/Sr.P Appeal dismissed.