1984 PLP (C (PLC)

ABDUL HAMID CHAUDHRY (MEMBER). ‑Khalid Masood Ex‑Officiating A. S.‑I. (Substantively Head Constable) has filed this appeal under sec tion 4 of the Punjab Service Tribunals Act, 1974, against the orders, dated 18th September, 1980 passed by Superintendent of Police, Sadar Division. Lahore, whereby he was reverted to his substantive rank of Head Constable and‑also reduction in rank from Head Constable to that of Constable with immediate effect. His appeal to Deputy Inspector‑General of Police, Lahore Range, has also failed. He also preferred the revision petition before the Additional Inspector‑General of Police, which was rejected on 30th September, 1981.

2. By virtue of this appeal the appellant prayed that the impugned orders of Superintendent of Police, Deputy Inspector‑General of Police and Additional Inspector‑General of Police be set aside and he be restored to his previous position.

3. Brief facts of the case are that one Asghar Ali son of Mian Abdul Aziz caste Rajput, Nawan Bazar, Sheikhupura, filed a complaint before the Superintendent of Police, Sadar Division, Lahore, alleging that appellant alongwith Mst. Saleh with of Ghulam Muhammad went to his shop and told him that he had taken two Tolas of gold, which was a stolen property, from Mst. Saleh. He further alleged that the appellant took him along to Police Station Nawankot, Lahore. His brother namely Muhammad Yaqub alongwith a few others went to the appellant the same evening and gave him two Tolas of gold. He further alleged that the appellant extorted an amount of Rs. 500 forcibly from his brother and resultantly released him, because otherwise he had threatened him for the registration of a case,

4. On this complaint, Superintendent of Police, Sadar Division, Lahore, marked the enquiry to Mr. Muhammad Rafiq Butt, D. S. P./ S. D. P. O. Sadar II, Lahore. The preliminary Enquiry Officer held the ‑appellant responsible for extorting 2 Tolas of gold as well as Rs. 500 as bribe money for releasing the complainant Asghar Ali. The Preliminary Enquiry Officer conducted the enquiry by personally visiting Sheikhupura and recording the statement of the neighbouring shopkeepers, etc., of the complainant. The Enquiry Officer also quoted the cases F. h R. No. 540/ 79 in which one accused Ashiq was arrested. This recovery of 2 Tolas of gold was made at the disclosure of accused Ashiq before the appellant but the same was not practically shown to have been recovered in the case file. In this way the appellant misappropriated this gold and he also extracted bribe money.

5. The Preliminary Enquiry Officer submitted his report to the Superintendent of Police, Sadar Division, Lahore, whereby the appellant was held guilty. Agreeing with this report, Superintendent of Police, served a show‑cause notice on 5th July, 1980 upon the appellant alongwith grounds of action. The appellant submitted reply which was not accepted by the Superintendent of Police, and after observing other formalities the impugned order was passed by the Superintendent of Police, Sadar Division, Lahore. Since his appeal and revision petition to the Deputy Inspector‑General of Police and Additional Inspector‑General of Police, Lahore, respectively were also dismissed. Hence this appeal.

6. We have heard the learned counsel for the appellant as well as learned District Attorney on behalf of the respondents. Learned counsel for the appellant argued that the allegation against the appellant was that of corruption and it required thorough enquiry by a regular Enquiry Officer and the discretion exercised by the competent authority for dispensing with the regular enquiry is unjustified. In this behalf they relied upon Mubarik Ahmad Malik and 4 others v. Federation of Pakistan (1980 P L C (C S) 418), Dost Muhammad v. Deputy Commissioner, Multan (1980 P L C (C S) 611), Muhammad Anwar v. Board of Revenue and others (1980 P L C (C S) 562) and Muhammad Siddique Jawaid Chaudhry v. The Government of West Pakistan (P L D 1974 S C 393) On the other hand learned District Attorney submitted that in the preliminary enquiry conducted by the D. S. P./S. D. P. O. Sadar II, Lahore, the appellant was associated in the enquiry. After the receipt of the report of Preliminary Enquiry Officer, the Superintendent of Police. ordered for supplying the copy of the statements to the appellant recorded during the inquiry and also right of cross‑examination to be provided to the appellant District Attorney further clarified that the appellant preferred not to avail his right of cross‑examination which was afforded to him ; as such the requirement of law as enunciated in Mubarik Ahmad Malik and 4 others v. Federation of Pakistan etc. were complied with.

7. We have given our anxious thought to the arguments of the parties and have also perused the record very carefully. The fact is that the appellant was arraigned before the competent authority on the charge of corruption. Although the preliminary enquiry is permissible but the accused was required to be supplied with the copy of enquiry report and the substance of evidence recorded against him to enable him to rebut the same in defence while submitting reply to the notice under rule 6(3) of the Punjab Police E & D Rules, 1975. The perusal of the record shows that although the Superintendent of Police had specifically directed the Preliminary Enquiry Officer to afford an opportunity to the appellant to cross‑examine the witnesses, yet for reasons best known to him, the preliminary Enquiry Officer did not comply with the said directions. The record shows that only one question was put by the appellant to the complainant as to whether be had any grievance against him. The complainant replied that his grievance has been redressed and did not want any other proceedings, against the appellant. There is no material on the record to show whether other witnesses were also present and any opportunity to cross‑examine them was also afforded to the appellant. In this view of the matter we have arrived at a definite conclusion that the appellant was not provided any opportunity to cross‑examine all the witnesses as directed by the Superintendent of Police which caused material prejudice to him in his defence. We are not also oblivious of our earlier judgments wherein we have held that the dispensing of regular enquiry on the allegation of corruption is unjustified and resort to the procedure of show‑cause notice would be an arbitrary exercise of discretion vested in the competent authority under rule 6(3) of E & D Rules, 1975.

8. In this case involving charge of corruption it was incumbent for the competent authority to conduct regular enquiry. No doubt a preliminary enquiry was held but it is defective in the sense that the appellant was not afforded an opportunity to cross‑examine the witnesses and not allowed to defend himself properly. Since the provision of rules have not been complied with in the instant case by not holding a regular enquiry, hence the impugned order cannot be sustained.

9. The upshot of the above discussion is that the impugned orders of the Superintendent of Police, Sadar Division, Lahore, reverting the appellant to substantive rank of Head Constable, reduction in rank to Constable and the consequential appellate orders are declared illegal and are set aside. The result is that this case is remanded to the competent authority for proceeding in accordance with law as indicated above. There shall be no orders with regard to cost. A. E. Appeal accepted, Case remanded.