IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
C. P. No. D-608 of 2019
PRESENT:
Mr. Justice Muhammad Saleem Jessar &
Mr. Justice Khadim Hussain Soomro
Petitioner Majid Ali : through Mr. Riaz Hussain A. Khoso,
Advocate.
Respondents / State : through Mr. Abdul Hamid Bhurgri, Addl. A.G a/w Inspector Saeed Ahmed Agani of CTD Larkana.
Date of hearing : 22.11.2023
Date of announcement : 06.12.2023
Muhammad Saleem Jessar, J.- By means of this constitutional petition the petitioner has prayed for directing respondent No.1, Senior Superintendent of Police (OPS-I) C.T.D. Sindh, Karachi, to issue appointment order in the name of petitioner for the post of Police Constable on merit basis.
Brief facts giving rise to filing of instant constitutional petition are; that respondents had invited applications from suitable candidates for recruitment to the post of "constable" in Counter Terrorism Department (CTD) and Rapid Response Force (RRF). Copy of such advertisement is annexed with the petition, which is available at page 11 of the court file. The petitioner applied for such post and appeared in the written test as well as viva-voce and was declared as successful candidate and his name was placed in merit list at serial No.119 which is available at page 15 of the court file. Ultimately, after fulfillment of codal formalities the petitioner was issued offer letter and he as well as other successful candidates were referred to Medical Superintendent, Garden Karachi for medical checkup / fitness, as such the petitioner had undergone such physical fitness test and was also found fit for service. Then, vide Letter No. SSC/- 8481 dated 08.5.2017 the character verification report of the petitioner on prescribed Form No.12.18 (1) was called by SSP Kashmore @ Kandhkot from SHO P.S. Tangwani, in whose territorial jurisdiction the petitioner was residing. The concerned SHO in his report disclosed that the petitioner had remained involved in two cases viz. Crime No.44/2016 under Sections 506 (2) and 337-H (2) P.P.C and Crime No.60/2016 under Sections 224, 353, 147, 148 and 149 P.P.C. of P.S Tangwani. Thereafter, vide impugned letter No.8242-60, dated 03.06.2019 issued from the Office of AIGP / Establishment on behalf of Inspector General of Police Sindh, Karachi, it was declared that the Sindh Police Recruitment Board has perused the judgments whereby the petitioner was acquitted in the aforesaid two criminal cases thoroughly and had recommended to reject case of the petitioner for his appointment as constable in CTD Sindh being sensitive department of Sindh Police, as the persons having suspicious character with criminal records cannot be appointed in CTD. The grievance of the petitioner is that he had already been acquitted of the charges in both aforesaid cases vide judgments dated 07.11.2016 and 27.01.2017 respectively. Copies of such judgments have been annexed with the petition. Petitioner’s case is that he was involved in fake cases which resulted in his acquittal, therefore, such involvement in criminal cases could not intercept his appointment, more particularly when right from the date of his acquittal he has not been shown to be involved in any criminal activity, hence he has maintained instant petition with the above prayer.
We have heard learned counsel for the parties and have perused the material available on the record.
Learned counsel for the petitioner contended that since the petitioner was acquitted of charges in the criminal cases on which basis his appointment had been declined, as such he was legally entitled to be appointed to the said post. According to him, every acquittal is honorable acquittal including the one which is recorded on the basis of benefit of doubt, therefore, the petitioner may not be deprived of his meritorious right. In support of his contentions, learned counsel placed reliance upon unreported Orders passed in C.P. No. D- 706 of 2009 (re:Ghulam Hyder and others v. District Police Officer Kashmore @ Kandhkot) passed by a Division Bench of this Court and another Order dated 21.02.2023 passed by another Division Bench of this Court in C.P. No. D-4060 of 2020 (re:Abdullah Shah v. Home Secretary Sindh and 4 others).
Conversely, learned Addl. A.G. appearing for the respondents / State vehemently opposed the petition. He, while referring to comments of respondents No.1 and 4, submitted that the department where appointment was sought by the petitioner, is a Special Police Force which is presumed to be sensitive in nature, therefore, such person who has criminal record at his credit cannot be taken into such service, as such, the petition merits no consideration and the same may be dismissed.
We have gone through said judgments whereby the petitioner was acquitted of the charges, which has been annexed with the petition and are available in court file. From perusal of said judgments it appears that that the petitioner was acquitted by extending benefit of doubt to him. It is settled law that doubt itself destroys very basis of the prosecution case and where the benefit of doubt has been extended to an accused, it cannot be said that charge against him has been established by the prosecution, therefore, Superior Courts have held time and again that such an accused has to be treated as innocent, and even the accused, who has been acquitted by extending benefit of doubt, shall be deemed to have been honorably acquitted. It is also settled law that all acquittals are “Honorable” and there can be no acquittal which may be said to be “dishonorable” as the term acquittal has not been defined anywhere under the scheme of Criminal Procedure Code, 1898 or under some other law. Therefore, in such a situation, ordinary dictionary meaning of "Acquittal" shall be pressed into service. In instant case, the petitioner has already been acquitted of the criminal charges and right from the date of his acquittal no criminal activity or record has been brought on file by the official respondents, therefore, he is entitled to be appointed to the post for which he has already been declared successful during the tests / interviews conducted by the respondents.
From perusal of the record it reveals that the only reason for which the petitioner was declared to be unfit for appointment to the post of Constable in C.T.D., was that he was reported to be involved in aforesaid two criminal cases. However, subsequently he was acquitted in both cases, therefore when the very and only allegation on the basis whereof the petitioner was declared to be unfit for appointment was washed up and disappeared from the scene, then there was no fun in still treating him unfit for appointment to the aforesaid post.
Apex Court has already laid down a principle that where the conviction in a criminal case was the only ground on which an employee had been removed from service and if such ground had subsequently disappeared through his acquittal, then he would be a fit and proper person entitled to continue with his service. In this connection, reference may be made to the case of CHAIRMAN AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN and another Vs. MUMTAZ KHAN, reported in PLD 2010 Supreme Court 695, wherein, while relying upon its earlier judgment passed in the case of Dr. MUHAMMAD ISLAM Versus GOVERNMENT OF N.W.F.P. through Secretary, Food, Agriculture, Livestock and Cooperative Department, Peshawar and 2 others, reported in 1998 S C M R 1993, it was held as under:
“It is admitted at all hands that no allegation had been levelled against the respondent in the present case regarding any illegality, irregularity or impropriety committed by him in relation to his service and his acquittal in the case of murder had removed the only blemish cast upon him. His conviction in the case of murder was the only ground on which he had been removed from service and the said ground had subsequently disappeared through his acquittal, making him re-emerge as a fit and proper person entitled to continue with his service.”
It was further held as under:
“It has already been clarified by this Court in the case of Dr. Muhammad Islam v. Government of N.-W.F.P. through Secretary Food, Agricultural, Live Stock and Cooperative Department Peshawar 1998 SCMR 1993 as follows:-
"We are inclined to uphold the above view inasmuch as all acquittals even if these are based on benefit of doubt are Honourable for the reason that the prosecution has not succeeded to prove their cases against the accused on the strength of evidence of unimpeachable character. It may be noted that there are cases in which the judgments are recorded on the basis of compromise between the parties and the accused are acquitted in consequence thereof. What shall be the nature of such acquittals? All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals….
The said precedent case also involved a question of reinstatement in service of an accused person implicated in a criminal case who had been acquitted by the criminal Court and this Court had declared that an acquittal had no shades and there was no concept of Honourable or dishonourbale acquittals. It had specifically been noted by this Court in that case that there could also be cases involving acquittals on the basis of compromise between the parties and after raising a query regarding the status of such acquittals this Court had hastened to add that "All acquittals are certainly honourable". If that be the case then the respondent in the present case could not be stigmatized or penalized on account of his acquittal on the basis of compromise. In view of the discussion made above and also in view of the novel situation presented by this case the precedent cases cited by the learned counsel for the appellants have been found by us to be missing the mark, if not irrelevant to the controversy in hand….
We may reiterate that in the case of Dr. Muhammad Islam (supra) this Court had categorically observed that "All acquittals are certainly honourable. There can be no acquittals, which may be said to be dishonourable. The law has not drawn any distinction between these types of acquittals". The sway of those observations made by this Court would surely also encompass an acquittal obtained on the basis of compounding of the offence.”
Besides, in an unreported Judgment passed by a Division Bench of this Court in CP No. D-706 of 2009, re: Ghulam Hyder & others Vs. District Police Officer, Kashmore at Kandhkot & others, in similar case while dealing with above legal point, held as under:-
“Since the petitioners were ignored for their appointments as Police Constables only on the ground of their involvement in the criminal cases which respondent No.1 himself has admitted the acquittal of the petitioners. Therefore, this petition is allowed. Respondent No.1 and 3 are directed to issue appointment orders of the petitioners at once as they have already been found fit in various tests as well as in the medical test.”
Yet, in another identical case another Division Bench of this Court while delivering judgment in CP No. D-4060 of 2020, re: Abdullah Shah Vs. Home Secretary Sindh & 4 others, held as under:-
“…………it is well-settled law that once the civil servant is acquitted in the criminal case, then on this very charge he cannot be awarded any punishment by the department because acquittal for all future purpose. The aforesaid proposition has been set at naught by the Hon’ble Supreme Court of Pakistan in the case of District Police Officer Mianwali and 2 others v. Amir Abdul Majid. 2021 SCMR 420.”
As far as the contention raised by learned Addl. A. G Sindh to the effect that Counter Terrorism Department (CTD) and Rapid Response Force (RRF). being sensitive departments, therefore the petitioner being a suspicious person, cannot be appointed therein is concerned, in our view the same is devoid of force. It is a settled principle of law that an accused unless and until convicted, would be presumed to be innocent. In instant case, as stated above, the petitioner had been acquitted of the charges and in view of dictum laid down by Honourable Supreme Court, as discussed above, even an acquittal on the basis of benefit of doubt would be termed as an “Honourable Acquittal”, the petitioner would be presumed to be quite innocent. In other words, if an accused is acquitted of the charges, it would be presumed that he has never committed any offence and such involvement in criminal case which ultimately ended in his acquittal, shall not put any stigma on his character. In instant case, the petitioner besides having been acquitted in aforesaid two criminal cases, is also a young man having broad shoulders and may have a bright future, therefore, his future should not be given black dot only because of his involvement in fake criminal cases in which he has honorably been acquitted. Hence, we are of the considered view that when the petitioner has been declared to be successful candidate on merit, then he should not be deprived of his legitimate meritorious right and he is entitled to be appointed to the post he had applied for and for which he was also shown to be a successful candidate.
Consequently, instant petition is hereby allowed. The respondents are directed to reconsider the case of the petitioner, in terms of the dicta laid down by the honourable Supreme Court of Pakistan in the cases of Dr. Muhammad Islam and Chairman ADBP (supra) and after considering his merit shall issue appointment order in his favour within two months' time from the date of instant judgment, under intimation to this Court.
JUDGE
Larkana
Dated: 06-12-2023. JUDGE