PLJ 2011 SC 49
[Appellate Jurisdiction]
Present:
Javed Iqbal, Raja Fayyaz Ahmed and Muhammad Sair
Ali, JJ.
REGISTRAR,
versus
MUHAMMAD
NAVEED HASHMI and another--Respondents
Civil
Appeal No. 1676 of 2003, decided on 26.1.2010.
(On appeal from the judgment dated 24.1.2003 passed by the
Punjab Subordinate Judiciary Service Tribunal, Lahore in S.A. No. 16/1992).
Judicial
Officer--
----Reputation
of being corrupt cannot be decided in vacuum and scrutiny of ACRs--Petitioner joined service as civil
judge--Relinquished the charge--Dismissal from service--Question of--Whether
judicial officer was enjoying the persistent reputation of being corrupt cannot
be decided in vacuum and scrutiny of ACRs are the
device to assess the persistent reputation of being corrupt--Annual
Confidential Reports during his posting were silent--Validity--Being discrepant
inconsistent, partisan and unreliable cannot be considered--Unblemished service
record of Judicial Officer cannot be ignored and deserve due
consideration--Allegations on two different occasions could not be substantiated--Allegation
of illegal gratification could not be proved as no solid evidence could be
produced and on basis of vague, sketchy and inconsistent evidence such
allegation could not be substantiated--Prosecution had failed to substantiate
the accusation--Appeal was dismissed. [Pp.
53, 54 & 55] A, B, C & D
Mr. Saeed Yousaf
Khan, Addl. AG and Mr. Abdul Sattar Asghar, Registrar High Court for Appellant.
Qazi Muhammad Anwar, Sr. ASC for
Respondent No. 1.
Nemo for
Respondent No. 2.
Date
of hearing: 26.1.2010.
Judgment
Javed Iqbal, J.--This appeal with leave
of the Court is directed against judgment dated 24.01.2003 passed by the Punjab
Subordinate Judiciary Service Tribunal, Lahore whereby Service Appeal Bearing
No. 16 of 1992 preferred on behalf of Mr. Muhammad Naveed
Hashmi (Civil Judge) (hereinafter referred to as
Respondent No. 1) has been accepted.
2. Precisely stated the facts of the case are
that the petitioner joined service as Civil Judge and resumed duties at Khanpur District Rahimyar Khan on
14.11.1979 and relinquished the charge of the post of Civil Judge on 14.7.1982
when transferred to Bhalwal. Pursuant to a complaint
dated 14.7.1982 made by Mr. Jam Rashid Ahmad, Advocate whereby serious
allegations were leveled against Respondent No. 1. After haying a preliminary
inquiry and completion of mandatory formalities, disciplinary proceedings were
initiated which culminated into his dismissal from service on 8.3.1986. Being
aggrieved a departmental appeal was preferred which was never responded and accordingly
the Punjab Subordinate Judiciary Service Tribunal (hereinafter referred to as
the Service Tribunal) constituted under Punjab Service Tribunal Act, 1974 was
approached by means of appeal which has been accepted, hence this appeal.
3. Leave to appeal was granted vide order dated
1.12.2003 which is reproduced herein below for ready reference:
"After
hearing Malik Azam Rasul, ASC for the petitioner and having gone through the
judgment impugned, we are inclined to grant leave to appeal to consider the impact
of evidence adduced in this case in the course of inquiry proceedings and
further to ascertain as to whether the order passed by the Tribunal was
justified on the record. Order accordingly. Operation of the order impugned
shall remain suspended in the meanwhile."
4. Mr. Saeed Yousaf Khan, learned Additional Advocate General duly
assisted by Mr. Abdul Sattar Asghar,
Registrar Lahore High Court entered appearance and contended strenuously that
the legal and factual aspects of the controversy have not been appreciated by
the learned Service Tribunal (comprising of two Hon'ble
Judges of Lahore High Court) which resulted into serious miscarriage of
justice. In order to substantiate the said contention it is submitted that the
overwhelming evidence produced against Respondent No. 1 went unnoticed causing
serious prejudice against the appellant. It is urged that in cases of
corruption it is difficult to produce direct evidence and moreso
the persistent reputation of being corrupt has been established by more than
twenty learned Advocates who appeared in support of the complaint made by Mr.
Jam Rashid Ahmad, Advocate but amazingly their version has been disbelieved
without assigning any cogent or concrete reasoning. It is next contended that
in disciplinary proceedings, the provisions of the Qanun-e-Shahadat
Order, 1984 cannot be made applicable as has been done by the learned Service
Tribunal as it has no application in such proceedings. It is urged with
vehemence that the observations and findings of learned Authorized Officer
(late Mr. Justice Rustam S. Sidhwa)
could not have been ignored and the recommendations made by him were in
consonance with the evidence which has come on record but discarded by the
learned Service Tribunal. It is also mentioned that Respondent No. 1 was a
corrupt officer who received illegal gratification duly proved by adducing
forthright and confidence inspiring evidence which should have been considered
by the learned Service Tribunal. It is also contended that a Judicial Officer
can be removed on the basis of reputation for which no concrete evidence would
be required.
5. Qazi Muhammad Anwar, learned Sr. ASC appeared on behalf of Respondent No.
1 and controverted the view point as portraited at bar by Mr. Saeed Yousaf Khan, learned Additional Advocate General for
appellant with the submission that allegations leveled against Respondent No. 1
could not be substantiated by producing any confidence inspiring and concrete
evidence. It is further argued that the evidence so produced was discrepant and
contradictory which has rightly been appreciated by the learned Service
Tribunal and the conclusion arrived at is in consonance with the evidence. Qazi Muhammad Anwar, learned Sr. ASC has supported the judgment impugned by
arguing that no illegality or infirmity whatsoever has been committed and the
judgment impugned being well based does not call for interference without any
lawful justification which is badly lacking in this case. Qazi
Muhammad Anwar, learned Sr. ASC has urged with
vehemence that Respondent No. 1 was exonerated of all the charges by the
Inquiry Officer and the findings of learned Authorized Officer are based on
extraneous consideration which being conjectural have rightly been ignored by
the learned Service Tribunal. It is argued that there was absolutely no
evidence to establish the allegation of persistent reputation of being corrupt.
It is contended that no adverse remarks were ever communicated to the appellant
and it can safely be presumed that no such adverse entry was made in the Annual
Confidential Reports.
6. We have carefully examined the respective
contentions as mentioned herein above, scrutinized the entire evidence and
perused the judgment impugned with the eminent assistance of learned counsel on
behalf of the parties. A careful scrutiny of the entire record would reveal
that after having preliminary inquiry, the following allegations were leveled
in the charge sheet:--
"1. That while posted as Civil Judge, Khanpur, you had a persistent reputation of being corrupt.
2. That while working as Civil Judge, Khanpur, you accepted Rs.5,000.00
as bribe from Irshad Ahmad, son of Ahmad Ali, caste Awan resident of Mauza Pir Bakhsh Korai,
Tehsil Khanpur, District Rahimyar Khan, Mukhtar of Mst. Amir Khatun,
plaintiff in Suit No. 294/1 of 1978, titled Mst. Amir Khatun versus Gamun, pending in your Court, for intended showing of favour to Mst. Amir Khatun.
3. That while working as Civil Judge, Khanpur, you accepted as bribe Rs.1500.00/- in cash and
payment of Rs.300.00 for the books purchased by you from Ghulam
Farid, son of Naseer Khan
caste Kalahi, resident of Khanpur,
District Rahimyar Khan, for intended showing of favour to his wife, Mst. Sharam Khatun, by promising to
accept her application for setting aside the exparte
order secured by her former husband, Manzoor Ahmad,
for obtaining the custody of her minor sons in guardian Case No. 165 of 1966,
titled Ghulam Farid versus Manzoor Ahmad and others, pending in your Court".
7. The Inquiry was conducted by learned District
and Sessions Judge, Rahimyar Khan who exonerated
Respondent No. 1 from all the charges vide inquiry report dated 30.7.1984. We
have also examined the report which is comprehensive in nature and the entire
evidence has been scrutinized with diligent application of mind and the
conclusion arrived at is convincing, solid and concrete. It is, however, to be
noted that the learned Authorized Officer disagreed with the Inquiry report and
issued show-cause notice and after affording personal hearing, Respondent No. 1
was dismissed by means of order dated 8.3.1986. The reasoning given by the
learned Authorized Officer seems to be extraneous in nature and it mainly
prevailed upon him that Respondent No. 1 was enjoying a persistent reputation
of being corrupt and no evidence. was required to
substantiate it as the provisions enumerated in the Qanun-e-Shahadat
Order, 1984 could not be made applicable in such an eventuality as has been
done by the learned District and Sessions Judge. No doubt that Respondent No. 1
was dismissed as a result of disciplinary proceedings initiated against him but
it was bounden duty of the prosecution to substantiate the accusation by
producing cogent and concrete evidence which is lacking in this case. It may
not be out of place to mention here that complaint was made against Respondent
No. 1 who rendered three years service at Khanpur w.e.f. 14.11.1979 to 14.7.1982. The learned Additional
Advocate General was pointedly asked as to whether any complaint was made
during the above period against Respondent No. 1, who informed that no such
complaint was ever made. In our considered view the persistent reputation of
being corrupt can be proved conveniently on the basis of Annual Confidential
Reports. The learned Additional Advocate General failed to point out that any
adverse remarks were recorded in the Annual Confidential Reports or
communicated to Respondent No. 1. There is no escape to infer that neither any
complaint was made nor inquiry was conducted during three years posting of
Respondent No. 1 at Khanpur. The learned Additional
Advocate General was asked time and again how the persistent reputation of
being corrupt has been established but no satisfactory answer could be given.
The question as to whether a Judicial Officer is enjoying the persistent
reputation of being corrupt cannot be decided in vacuum and scrutiny of Annual
Confidential Reports are the only device to assess the persistent reputation of
being corrupt or otherwise. The Annual Confidential Reports during his posting
at Khanpur are silent in this regard. Had there been
some complaint the position would have been different and some remarks would
have been made in the Annual Confidential Reports. The learned Additional
Advocate General was asked as to whether any advice was tendered to Respondent
No. 1 for improvement in this sphere who answered in negative. As mentioned
herein above the Authorized Officer did not agree with the recommendations of
the Inquiry Officer by whom Respondent No. 1 was exonerated but the reasoning
whereof seems to be academic. The learned Authorized Officer may be correct
logically but not legally. There must be some proof to substantiate the
allegation of persistent reputation of being corrupt. Nothing could be brought
on record on the basis whereof such a serious charge could have been
substantiated. There is nothing even to prove prima facie what to say about
solid proof that an amount of Rs. 5000/- and 1500/-
was received as illegal gratification. The learned Service Tribunal has
discussed the entire evidence in depth, strictly in accordance with law and
settled norms of justice and the conclusion as arrived at is well based which
is reproduced herein below for ready reference:--
"The
evidence recorded shows that out of 14 P.Ws. Abdul Majid, P.W.2, Irshad Ahmad,
P.W.1, Yar Muhammad, P.W.4, were the clients of
complainant, Jam Rashid Ahmad, Advocate. Abdul Haq,
P.W.3, and Qaiser Mehmood,
P.W.5, are interested witnesses as the cases were decided against them. The
evidence of Noor Hussain,
P.W.7, is hearsay. Rana Muhammad Hussain,
P.W.6, Malik Waheed Bakhsh, P.W.8, Sarfraz Shahid, P.W.9, and Muhammad Ashiq,
P.W.10, are close associates of the complainant in a society known as "Ehbab-e-Danish". In small towns the people oblige each
other. P.W.9, admitted that he represented the
complainant in Courts when he is out of station. P.W. 10 only stated that brief
was taken away from him and given to Ch. Arshad
Advocate which is neither here nor there. We do not agree with the observation
of the Authorized officer that "those specific instances
of hearsay that they had heard that in these cases money had been passed is
of no significance." It is well established that hearsay evidence is not
admissible in law and any finding based upon it is liable to be struck down.
The Authorized Officer also came to the conclusion that Manzoor
Ahmad Mohsin, P.W.13 and Fazal
Mehmood, P.W.14, Advocates deposed with regard to the
general reputation and also deposed with regard to certain cases in which money
has been paid but in none of these cases neither of them had given direct
evidence".
8. It has also been observed that the learned
Authorized Officer has not kept the defence version
in juxtaposition and ignored the version of various Advocates (D.W.1 to D.W.20)
produced by Respondent No. 1 qua his reputation. We have also gone through the
evidence produced against the respondent which being discrepant, inconsistent,
partisan and unreliable cannot be considered. The unblemished service record of
the respondent cannot be ignored and deserve due consideration. The allegation
of receiving Rs.5,000/- and 1500/- on two different
occasions could not be substantiated. In support of Charge No. 3 i.e. receiving
illegal gratification of Rs.1500/- from Ghulam Farid could not be proved. It is to be noted that Ghulam Farid appeared as a
witness (P.W.11) and he has not supported the prosecution version. He made it
abundant clear that Mr. Jam Rashid Ahmad (complainant) had assured him for
compromise in a case pending before Respondent No. 1 and obtained his
signatures on blank papers. Ghulam Farid has denied in an unambiguous manner that an amount of
Rs.1500/- was ever paid by him to Respondent No. 1. No other evidence could be
produced in this regard. Similarly, the allegation of illegal gratification of
Rs.5,000/- could not be proved as no solid evidence
could be produced and on the basis of vague, sketchy and inconsistent evidence
such allegation could not be substantiated. The learned Inquiry Officer has
examined the entire evidence produced in support of the said allegation and
exonerated Respondent
No. 1 by
giving convincing and
cogent reasoning which
cannot be brushed aside and has rightly been taken into consideration
and relied upon by the learned Service Tribunal.
9. In view of what has been discussed herein
above, we have no hesitation in our mind to hold that prosecution has failed to
substantiate the accusation. The learned Service Tribunal has scrutinized the
entire evidence with diligent application of mind and the conclusion as arrived
at is in consonance with law and evidence which cannot be reversed without any
lawful justification which is lacking in this case. The judgment impugned being
well based does not warrant interference. The appeal being devoid of merit is
accordingly dismissed.
(R.A.) Appeal dismissed.