1983 PLP (C (PLC(CS))

2. By virtue of this appeal he has prayed that that the impugned order be set aside and he may be re‑instated to his original post with all back benefits.

3. Brief facts of the case are that the appellant while attached to the Naib‑Tehsildar. (Recoveries) for recovery of arrears of land revenue etc. strayed into Indian territory which was complicatedly joining the Pakistan Border and was apprehended by the Indian Border Police. His bags and papers were confiscated and he was sent to Ferozepur Jail, India. Ultimately he was convicted to 7 months' R. I. After his release when the appellant came back to Pakistan he found that his wife had been murdered and his house was ransacked by the dacoits. In this condition the appellant reported himself to Tehsil Headquarters for duty and was re‑instated by the order of the Collector Sahiwal dated 10‑2‑1981. This order was however subject to decision of pending departmental enquiry against the appellant. The appellant also learnt that in his absence a show‑cause notice was issued and was publicised in daily 1mroze also. In the absence of the appellant one Mr. Iftikhar Ahmad Hundal, Magistrate 1st Class Depalpur, was appointed as Enquiry Officer. The appellant after re‑instatement, appeared before the Enquiry Officer who instead of giving him 14' days' time as required under the rules to submit reply, recorded his statement straightway instead. The appellant was not given any chance to produce his defence and on the result of the enquiry so conducted against him, was dismissed from service: He filed an appeal before the Commissioner, Multan which also met the same fate.

4. I have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case care fully with their assistance.

5. The first and primary objection raised by the appellant's counsel in this behalf is that the earlier notice issued against the appellant was on the home address whereas the appellant was in Indian Jail. He has further submitted that when ultimately the appellant appeared before the Enquiry Officer he did not conduct the enquiry afresh but relying, on the earlier evidence so recorded in his absence, proceeded on unwarranted assumption that the appellant must have crossed the Indian Border with some ulterior motives and has been guilty of misconduct. According to the learned counsel such like procedure is violative of the fundamental principle of natural justice as laid down in P L D 1964 S G 97 at 101 and PLD1959 SC 45 at 51.

6. With regard to the merits of the case he has submitted that it is on the record that he was duly assigned duty for recovery of arrears of land revenue from village Mujahid Key adjoining the Indian Border and his crossing the border unwittingly was an act not intentional but due to lack of knowledge of the demarcation of the area between Pakistan and India. Learned counsel has vehemently argued that the appellant has been condemned on conjectures by holding without any evidence on the record that he must have crossed the border intentionally and may be spy of India. According to the learned counsel such like conclusions are just creation of whim and fancy on the part of the authorities whereas there was no actual basis for the same.

7. On the other hand learned District Attorney has submitted that the appellant had no business to cross the border, Being a Patwari he should have been wellaware of the demarcated boundary of Indo‑Pak border, therefore, the punishment so awarded to him was justified. With regard to the illegality of the procedure so challenged by the learned counsel for the appellant, learned District Attorney has submitted that the authorities could rely on the earlier evidence so recorded in the absence of the appellant.

8. I have given my anxious thought to the arguments so raised by both the parties in support of their cases and have carefully attended to the documents so placed on record.

9. The persual of the record reveals that the appellant was duly assigned the work with the Recovery Naib‑Tehsildar to make recoveries in village Mujahid Key situated on the border of India. I have seen the enclosed map placed on the record as Exh. P‑2 and find that the village Mujahid Key is definitely on the border of India and have also satisfied myself that the appellant was on duty with the Naib‑Tehsildar (Recoveries) on the relevant date. R. 3 is Robkar from Tehsildar Mahal in which the name of the appellant finds mention at No. 5 alongwith Inayat Khan and according to this document the appellant was posted to make recoveries. Similarly R. 4 is also document in support of the contention of the appellant. R. 2 is another document which shows that the appellant was duly appointed person to work in the said area. R.1 is a Post Card posted by the appellant from Central Jail, Ferozepur, India. With these documents on the record I am fully satisfied that the appellant was not a wanderer near the border area but was on duty to collect the arrears of land revenue for village Mujahid Key etc. and also he did not absent himself from duty wilfully but was a prisoner of Indian Government in Indian Jail.

10. I am further satisfied from the record that when the appellant reported back for duty in Tehsil Hqrs. after his release from Indian Jail, the Tehsildar made a report in his favour and this is why the Collector re‑instated him back to his duty, I have also looked into the F. I. R. so placed on the record which gives a proof that in the absence of the appellant the dacoits looted his house and killed his wife. All these circumstances go to show that the absence of the appellant was not wilful and he was re‑instated in service by the Collector both on genuine grounds of absence and the compassionate ground that he had lost everything when he came back to his country. I have looked carefully in the evidence recorded by the Enquiry Officer himself although in the absence of the appellant and find that there is not an iota evidence to show that he was enemy agent or had some ulterior motives to cross the border. In these circumstances, I am constrained to observe that the Enquiry Officer had no justification to dub him as enemy agent which has only biased the mind of his superiors against the appellant warranting drastic action, culminating in his dismissal from service. The appellant has served for six years as Naib‑Qasid and never before it has been stated that he was in the habit of crossing Indian Border or was indulging in activities which were subversive in nature. To my mind this sort of conclusion against him that he was an agent of India, would be nothing but giving a dog bad name and hang him. On the converse the case of the appellant needs lot of sympathetic consideration when he had strayed into Indian border unintentionally and had suffered 7 months' R. I. in jail and had lost every thing when he came back to his country.

11. In view of the above analysis I am of the considered opinion that the procedure so adopted by the Enquiry Officer was violative of the mandatory provisions of the Service Rules as well as against the funda mental principle of natural justice as laid down in the above‑cited rulings of the Supreme Court of Pakistan. I am fully convinced that the appellant has not been given fair deal and due to biased conclusion in the inquiry by the Enquiry Officer, adverse attitude has been taken in his case, not for his absence, but considering him a person with shady character. It is a well‑established principle of fundamental justice that nobody can be condemned without being heard. If the authorities were convinced that the appellant had crossed the border knowingly although claimed by him otherwise, then a fulffedged inquiry on this point should have been conducted to prove him guilty of this heinous offence. In the present case on the contrary a conclusion has been arrived at without supporting evidence which has ruined the career of the appellant for good. Before coming to this decision that he had crossed the border with ulterior motives it was mast for the Enquiry Officer to give a chance to defend himself and not to act on ex parte proceedings.

12. I, in view of the above analysis, set aside the two impugned orders as being without lawful authority and based on no evidence and direct that the appellant be re‑instated in service with all back benefits. However, there will be no order as to costs. Appeal accepted.