1991 PLP (C (PLC(CS))

(iii) The impugned order dated 31-1-1989 is based on a misconception of facts that the appellants were caught red-handed while extorting money as illegal gratification from the truck drivers; (iv) The prosecution witness Nazir Hussain, truck driver, who was the star witness in this case as also complainant in criminal case F.I.R. No.559, dated 2-10-1988, disowned his complaint and called the entire police story as fabricated. There was no other prosecution witness except the members of the raiding party; (v) No recovery was affected from the appellants although the raiding party comprised, seven policemen who had come in a wagon; (vi) The appellants have been acquitted by the Special Judge Anti- Corruption Sargodha of all the charges, as there was absolutely no probability of conviction of any of the accused in this case.

5. The learned District Attorney vehemently opposed and rebutted the contentions of the learned counsel for the appellants and submitted that the very first objection raised by the learned counsel for the appellants that the appellants were not allowed to cross-examine the witnesses was factually incorrect. He produced before the Tribunal the original statements of the witnesses recorded during the course of the enquiry wherein all the three accused officials had cross examined the witnesses and noted at the end of each statement "admitted as correct". As regards the objection raised by the learned counsel for the appellants with regard to the technical defects in the proceedings he explained that all the basic requirements of the Punjab Police (E&D) Rules, 1975 had been observed. The appellants were given abundant opportunity to put up their defence which is evident by the fact that some defence witnesses were produced by them. As regards their acquittal in the criminal case the learned DA. stated that the appellants were not acquitted on merits or honourably but under section 249-A of Cr.P.C. for lack of adequate evidence. He pointed out that acquittal in a criminal case does not necessarily mean that the departmental proceedings should also result in the exoneration of the accused civil servant. In response to the explanation offered by the appellants that they had gone to a village to enquire about the health of a friend, spent the night there and were only standing on the roadside the next morning awaiting for a bus to take them back to Sargodha and were, therefore, not on duty at that time, the DA. called it a cock and bull story. He stated that they were wearing uniforms and that too outside the municipal limits of Sargodha which clearly indicated that they were upto something. He, therefore, concluded that the appellants had rightly been punished through proceedings which did not suffer from any defect. He urged the Tribunal to uphold the impugned orders which according to him were perfectly legal. The learned DA. could not, however, adequately defend the omission of non-supply of a copy of the enquiry report.

6. The three charges levelled against the appellants are examined hereunder in the light of the submissions made by the learned counsel for the appellants and the learned DA. Charge No. 1 "On 2-10-1988, you alongwith other 3 Constables conducted illegal and unauthorised traffic checking on Sargodha-Jhavarian Road and extorted money as illegal gratification from different trucks/public vehicles' drivers."

7. The only fact specified in the charge is the date. All other matters mentioned there are non-specific; the names of the other constables have not been mentioned; the point at which the appellants were making the unauthorised checking on Sargodha-Jhavarian Road had not been specified; the amounts of illegal gratification received from the drivers of vehicles have not been mentioned; the numbers of the vehicles and the names of the drivers have not been given. The charge is, therefore, patently vague and non-specific and could rightly be termed as based on surmises and conjectures and, therefore, unfounded. Charge No.2 "Case F.I.R. No.559, dated 2-10-1988, under section 5/2/47, P.CA. and 161, P.P.C., P.S. Saddar was also registered against you because of your indulgence and thereby captured red-handed while you were busy in carrying out and accepting illegal gratification from public vehicles/truck drivers."

8. The appellants have been acquitted of the charges contained in the aforementioned F.I.R. The prosecution failed because in the light of the evidence on record the Court felt that there was absolutely no probability of conviction of any of the accused in this case. This allegation in the charge-sheet was wholly based on the F.I.R. 559, dated 2-10-1988 which was the basis of the criminal proceedings. Since the criminal proceedings failed. this charge too should fail. Charge No.3 "Moreover, the point of traffic checking on which you were found carrying out illegal traffic checking was beyond the Municipal limits for which you were restricted and quite unauthorised to perform the traffic duties. But, you because of your ulterior motives, violated the orders of your officer by conducting traffic checking beyond the Municipal limits."

9. It has nowhere been denied by the appellants that they were standing on Sargodha-Jhavarian Road although they have given their own reasons for their presence at that place and at that time. They have also not denied the fact that they were in uniforms. It is also admitted that the place where they were standing on Sargodha-Jhavarian Road was on the outside of Sargodha and outside the municipal limits. It is also evident that they left the municipal limits without permission from the competent authority. It was incumbent on them to obtain leave for going out of Sargodha notwithstanding the fact that they were not on duty at that time. Thus this charge is proved to the extent that appellants' absence from Sargodha was unauthorised and the appellants have not been able to offer any plausible explanation of this misconduct.

10. Before concluding some other weaknesses in the case made out by the prosecution may as well be mentioned. In the departmental proceedings the three appellants were accused of being caught red-handed while accepting illegal gratification whereas in the F.I.R. only Manzoor Ahmad was so accused. In the F.I.R. driver Nazir Hussain, prosecution witness in both the criminal and departmental proceedings, did not support the prosecution case during the course of both the proceedings. The prosecution could not produce even a single witness who could state that he saw any of the accused accepting any amount as illegal gratification from any person not the amount of Rs.20 stated to have been given by Nazir Hussain, driver, to Manzoor Ahmad, appellant, was recovered from him. It is, therefore, not correct to say that any of the appellant was caught red-handed. The prosecution did not produce two important eye-witnesses for reasons best known to it. They are the drivers of the wagon in which the raiding party travelled and, the driver of the taxi in which the appellants are stated to have fled away. None of the appellants could be apprehended by the raiding party in spite of the fact that they were seven in number and had come in a vehicle. It is surprising that despite the raiding party being mobile it did not give the appellants a chase. The departmental proceedings and the written objections filed by respondents clearly show t at no effort was made by the raiding party to chase the appellants. Thus so far as the first two charges are concerned, it is evidently a case of no evidence.

11. As already stated, the learned D.A. did not controvert the contention of the learned counsel for the appellants that copies of the enquiry report were not supplied to the appellants which prevented them from putting up their defence adequately. In the light of the judgments in cases reported as P L D 1981 S C 176, 1984 S C M R 451 and 1987 S C M R 1562 cited by the learned counsel for the appellants, this defect in the departmental proceedings is sufficient to quash the proceedings on this ground alone.

12. Taking all the aspects of the three appeals into consideration it is held that the first two charges are vague, unfounded and not supported by credible evidence. However, the third charge relating to the unauthorised absence of the appellants has not been assailed successfully. Viewed in this context, the penalty of dismissal from service would seem to be a bit too harsh. Resultantly the impugned orders of dismissal are set aside, the three appellants are reinstated and the penalty of dismissal is converted into forfeiture of two years approved service in each case which should meet the ends of justice. The intervening period between their dismissal and reinstatement shall be treated as leave extra ordinary without pay. There axe no orders as to costs. M.Y.H/322/Sr.P Appeal partly allowed