PLJ 2008 SC 1001
[Appellate Jurisdiction]
Present: Abdul Hameed Dogar, CJ, Ijaz-ul-Hassan & Ch. Ejaz Yousaf, JJ.
MUHAMMAD JAMIL KHAN--Appellant
versus
and another--Respondents
Civil Appeal No. 351 of 2006, decided on 17.6.2008.
(On appeal from the judgment dated 14.4.2003 passed by the Peshawar High Court, Peshawar in SJSA No. 7 of 1999).
N.W.F.P. Government Servants (Efficiency & Discipline) Rules, 1973--
----Rr. 5(4) & 4(iii)(b)--Constitution of Pakistan, 1973, Art. 212(3)--Removal from service--Un-authorized awarded a number of weapons--Appeal against the judgment passed by subordinate judiciary service tribunal--Appellant while posted as Addl. Distt. Judge awarded a number of weapons free of cost, to various persons, which were confiscated to state during trial of cases--DIG Police approached the High Court for review of orders passed by appellant, as weapons were of prohibitory bore and could not have been awarded to private person--Judge of High Court was appointed to probe into the matter--Charge sheeted--Awarding weapons to private persons and superdari of two motorcars--Recommendations regarding removal from service were approved by Chief Justice--Appeal was dismissed--Assailed--Appellant while posted as Addl. Distt. Judge had unauthorizedly awarded a number of weapons i.e. the case property to various private persons including his brother--So much so he had awarded a weapon to himself as well for which neither there was any justification nor had he any competence--Held: Penalty of removal from service inflicted on appellant is a bit on higher side and ends of justice would be met with if his removal from service is converted compulsory retirement from service. [Pp. 1004 & 1007] A & E
N.W.F.P. Arms Rules, 1922--
----R. IX--N.W.F.P. Government Servants (Efficiency and Discipline) Rules, 1973--R. 5(4)--Disposal of confiscated arms--Sub-ordinate Judiciary Service Tribunal--Appellant while posted as Addl. Distt. Judge awarded a number of weapons free of cost to various private persons--Validity--Manner of disposal of the confiscated arms has been provided yet, the rules do not make provision for award of confiscated arms to a private person. [P. 1005] B
N.W.F.P. Arms Rules, 1922--
----R. X--Reward--Appellant while posted as Addl. Distt. Judge awarded to number of weapons to private persons--Validity--Reward can be given to a person or persons including police officers, who had given information leading to detection of offences, or who might have assisted in arrest of the offenders and seizure of the arms or other articles yet, that reward too, is limited to cash payment--Reward not exceeding the amount of fine imposed, can be granted to the person or persons who have contributed to arrest of the offender or the seizure of arms or articles. [P. 1006] C
Surrender of Illicit Arms Act, 1991 (XXI of 1991)--
----S. 10--N.W.F.P. Arms Rules, 1922--R. X--Releasing of weapon--Reward for successful recovery of illicit arms--Legality--Reward for successful recovery of illicit arms can also be given to a person providing information yet, such reward is to be made by Federal or Provincial Government as the case can be henced--Appellant was competent or authorized to distribute confiscated arms to the persons of his own choice--Held: Release of weapons being patently illegal on in access of jurisdiction not vested in appellant, he was rightly punished by competent authority. [Pp. 1006 & 1007] D
Hafiz S. A. Rehman, Sr.ASC for Appellant.
Sh. Riaz-ul-Haq, ASC for Respondent No. 1.
Mr. Zia-ur-Rehman, A.G. NWFP for Respondent No. 2.
Date of hearing: 17.6.2008.
Judgment
Ch. Ejaz Yousaf, J.--This appeal with leave of the Court is directed against the judgment dated 14.4.2003 passed by N.W.F.P. Subordinate Judiciary Service Tribunal, Peshawar, (hereinafter referred to as the "tribunal") whereby appeal filed by the appellant against his removal from service under sub-rule (4) of Rule 5 of the NWFP Government Servants (Efficiency and Discipline) Rules, 1973, was dismissed.
2. Briefly stated, the facts of the case are that the appellant while posted as Additional District Judge, Upper Dir , in the years 1997-98 "awarded" a number of weapons, free of cost, to various persons, which were confiscated to the state during trial of cases. Since Registrar of the High Court was approached by the Deputy Inspector General of Police, Malakand Range through letter dated 5.7.1998, for review of the orders passed by the appellant, as the weapons were of prohibitory bore and could not have been "awarded" to private persons, therefore appellant's explanation was sought for. The reply having been found unsatisfactory, a Judge of the High Court was appointed to probe into the matter as an authorized officer. The appellant was accordingly charge sheeted and report from the District & Sessions Judge/Zila Qazi Dir at Timargara, was also sought for, in consequence whereof it revealed that besides "awarding" weapons to various private persons including his brother Ajmal Khan, a weapon was also taken by the appellant himself. Further, two motorcars were also released on Superdari by him one to an Advocate and the other to himself. The charge sheet was accompanied by the statement of allegations. The appellant submitted reply thereto, denying the allegations of illegally giving on superdari the motorcars in question but admitted the fact of giving the arms and ammunitions as "reward" to various persons on the basis of precedents and practice which, according to him, was prevalent in the area. The said reply too, was not found satisfactory and consequently Mr. Miftahuddin Khan, District & Sessions Judge/Zila Qazi, Malakand, at Batkhela, was appointed as Inquiry Officer and report was called to which the appellant replied but that too, was found unsatisfactory. Consequently, the Authorized Officer recommended appellant's removal from service under sub-clause (iii) of clause (b) of Rule 4 of the NWFP Government Servants (Efficiency and Discipline) Rules, 1973. The said recommendations were approved by the then Chief Justice of the Peshawar High Court. Resultantly the appellant was removed from service vide order dated 9th July, 1999. Being aggrieved the appellant approached the Tribunal through appeal which was dismissed vide the impugned judgment, hence this appeal.
3. Hafiz S. A. Rehman, learned senior ASC for the appellant, though initially made some submissions; that since the weapons were "awarded" by the appellant while acting as a judicial officer, hence he was impugned from disciplinary action as the rules were not violated; that no pecuniary or monitory loss was suffered by the Government on account of release of weapons as it were returned/redeposited by the persons concerned; that the appellant was neither personally heard nor his statement was recorded before passing the impugned order and argued the appeal at some length; but then decided not to challenge the imposition of penalty on the appellant, however prayed that since the appellant had twenty years service at his career, he is out of job for more than eight years and hardly a year or so of his service is left and due to loss of job, he as well as his family members have been subjected to monitory hardship, therefore, a lenient view may be taken in the matter of the imposition of penalty on him and the penalty of removal from service may be substituted by a lesser one.
4. Mr. Zia-ur-Rehman, learned Advocate General, NWFP, has on the other hand, urged that since guilt of the appellant was fully brought home after conducting a full-fledged inquiry and it was proved to the hilt that he had, unauthorizedly, released arms, to his friends and close relatives and even to himself, therefore the impugned judgment was unexceptionable. He, however, in view of the fact that appellant was removed from service in the year 1998 and being out of job has suffered monitory hardship, expressed his no objection in case the penalty of removal from service inflicted on him is substituted by any other.
5. Sh. Riazul Haq, learned ASC, while appearing on behalf of Respondent No. 1, adopted the arguments advanced by Mr. Zia-ur-Rehman, learned Advocate General, NWFP, and added that since the appellant had illegally and unauthorizedly released weapons to private persons therefore, he was rightly removed from service.
6. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the available record, minutely, with their assistance.
7. Notwithstanding the fact that learned counsel for the appellant has not challenged the imposition of penalty on the appellant, we have considered merits of the case in the light of the evidence on record. We find that the appellant while posted as Additional District Judge, Upper Dir , had unauthorizedly "awarded" a number of weapons, i.e. the case property, to various private persons including his bother. So much so he had "awarded" a weapon to himself as well for which neither there was any justification nor had he any competence. It would be pertinent to mention here that though under Section 20 of the Arms Ordinance, 1965, the Court while convicting any person of any offence punishable under the said Ordinance, committed by him in respect of any arms, ammunition or military stores, has power to direct that the whole or any portion of such arms, ammunition or military stores, and any vessel, vehicle or any other type of transport used to covey the same, and any type of package or container in which the same may have been concealed, together with the other contents of such package or container be confiscated, yet, in the said Ordinance as well as the rules framed thereunder, nowhere it has been provided that the Court, while confiscating the arms and ammunition or the vehicle, etc., would be competent to "award" the same to any other person. It would be pertinent to mention here that though as per rule (ix) of the NWFP Arms Rules, 1922 (hereinafter referred to as the said Rules, 1922), under the heading of "DISPOSAL OF CONFISCATED ARMS", the manner of disposal of the confiscated arms has been provided yet, the said rules do not make provision for "award" of confiscated arms to a private person. Here it would be beneficial to have a glance at rule (ix) of the said Rules, 1922, which reads as follows:--
"DISPOSAL OF CONFISCATED ARMS
(ix) Arms, ammunition or military stores that have been forfeited to Government under Sections 14 and 16 or have been confiscated under Section 24 shall be disposed of as follows:--
(1) Arms, ammunition and stores which can be utilized by the police or any other Government Department may be retained and brought into use with the sanction of the State Government.
(2) Arms, ammunition and stores not so retained shall be disposed of in the following manner:--
(a) all revolvers and pistols of whatever bore, and all rifles and ammunition of prohibited bores, shall be to the nearest arsenal for disposal.
(b) arms, ammunition and stores other than those described under (a) above may be sold to licensed dealers or other persons entitled to possess them, and
(c) arms and disposed of under (b) shall be broken up locally and the materials sold, unless they are rifled fire-arms or rifle barrels, in which case they should be sent to the nearest arsenal to be broken up Ammunition and stores not disposed of under (b) shall be destroyed.
(3) An acknowledgement should be obtained from the officer-in-charge of the arsenal concerned of the receipt of arms and ammunition sent to him under Rule 2 above and, in the due course, a certificate that the said arms and ammunition have been either destroyed or taken into Ordinance stock.
[Note. The expression Stores: in these Rules means "Military Stores" as defined in Section 4 of the Arms Act, 1878]"
However, under the heading "REWARDS" as per rule (x) of the said Rules, 1922, though reward may be given to a person or persons including the police officers, who had given information leading to the detection of the offence, or who might have assisted in the arrest of the offenders and seizure of the arms or other articles yet, that reward too, is limited to cash payment which, in no case, be more than half of the value of the confiscated articles; and likewise under rule (xi) a reward not exceeding the amount of the fine imposed, can be granted to the person or persons who have contributed to the arrest of the offender or the seizure of the arms or other articles. It would also be advantageous to go through rules (x) & (xi) of the said Rules, 1922 as well, which read as follows:
"REWARDS
(x) When any arms or other articles are confiscated under Section 24, the convicting Magistrate shall, immediately on conviction, pay reward of not more than half the value of the confiscated articles and in such proportion as he may been advisable after due consideration of all the facts of the case to the person or persons (police officers are included) who may have given information which led to the detection of the offence, or who may have assisted in the arrest of the offenders and seizure of the arms or other articles.
Such payment will be chargeable to Law and Justice, and be drawn by Magistrate in their contingent Bills.
(xi) Any Magistrate convicting an offender of any offence under the Act may, at his discretion, grant a reward not exceeding the amount of the fine imposed, in such proportions as he may think fit to any person or persons (police officers are included) who have contributed to the arrest of the offender or the seizure of the arms of other articles."
Needless to point out that under Section 10 of the Surrender of Illicit Arms Act, 1991, "Reward" for successful recovery of illicit arms, may also be given to a person providing information yet, such reward is to be made by the Federal or Provincial Government as the case may be hence, by no stretch of imagination it can be concluded that the appellant, in any way, was competent or authorized to distribute the confiscated arms to the persons of his own choice. Thus the release of weapons being patently illegal and in access of jurisdiction not vested in the appellant, he was rightly punished by the competent authority. The impugned judgment, therefore, does not suffer from any legal infirmity so as to call for interference by this Court. However, keeping in view the fact that all the weapons were returned and no pecuniary loss was caused to the Government or the State and that appellant, prior to the incident had more than 18 years service at his credit, we feel that the penalty of removal from service inflicted on the appellant is a bit on the higher side and ends of justice would be met with if his removal from service is converted into compulsory retirement from service. Order accordingly.
8. With the above modification in the penalty inflicted on the appellant this appeal, having been found without merit, is hereby dismissed.
(R.A.) Appeal dismissed.
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