Zain Ahmed (Petitioner) VS The I.G of Police and Others (Respondent)

IN THE HIGH COURT OF SINDH AT KARACHI

CP. No. D-469 of 2022 (Zain Ahmed v I.G of Police Sindh & another) Date Order with signature of Judge Before:

Mr. Justice Muhammad Karim Khan Agha Mr. Justice Adnan-ul_Karim Memon

Date of hearing and Order: 15.01.2025

Mr. Kamran Asghar advocate for the petitioner Mr. Ali Safdar Depar, Assistant AG

ORDER

Adnan-ul_Karim Memon, J: Petitioner Zain Ahmed prayed that this Court Order respondents 1 & 2 issue an appointment letter to the petitioner and direct respondent 2 to comply with the approved list of successful candidates and issue the petitioner's appointment letter.

2.learned counsel for the petitioner has submitted that the petitioner was selected for the post of Driver police constable by the Inspector General of Police Sindh vide official letter No. 4725-40-EB-III/T-7/S & S Dated 15-04-2019, however, the respondents failed to provide legal justification for the delay in issuing the appointment letter to the petitioner, which is considered arbitrary and discretionary. Per learned counsel, documentary evidence submitted by the petitioner supports his claim and demonstrates adherence to legal procedures. Per learned counsel, a previously lodged FIR against the petitioner was dismissed with an acquittal order of the petitioner under the “C” Class. The petitioner's application to the I.G. Sindh regarding this issue remains unanswered. The petitioner is eager to serve the Sindh Police with dedication and responsibility. This petition seeks this court’s order directing the respondents to issue the appointment letter in favor of the petitioner.

3.The learned Additional Advocate General argued that it was established on record that the petitioner had a criminal history, therefore, he cannot be a member of the disciplined force and does not deserve any leniency by this Court as this would hurt other members of the force if he is allowed to join the police force. The learned AAG submitted that the case of the petitioner was placed before the Sindh Police Recruitment Board in the meeting for reconsideration and the Board withdrew its recommendation regarding the appointment of the petitioner as Driver Police Constable.Learned AAG further submitted that the Supreme Court has held that acquittal in criminal cases does not fully exonerate an accused, especially when the trial court did not allow the prosecution to present evidence. He added that the Supreme Court has emphasized that such acquittals cannot be given the same weight as those based on a full

trial. He added that the Supreme Court observed that they were justified in prioritizing the integrity of their operations and public trust and dismissed the case of the candidates. Learned AAG emphasized that the Sindh Police Recruitment Board believes that individuals with criminal records, regardless of the outcome of the case, are not suitable for sensitive positions in the police force. Learned AAG cited the judgment of the Supreme Court in the case of President National Bank of Pakistan Vs. Waqas Ahmed Khan (2023 SCMR 766) argued that the Supreme Court has declined relief to the private respondent in that case on the premise that sanctity cannot be accorded to acquittal under section 249-A or 265-K Cr.P.C. Furthermore the Supreme Court in the case of Faraz Naveed Vs District Police Officer Gujrat 2022 SCMR 1770 has held that the police force is a disciplined force with cumbersome accountability and responsibility of maintaining law and public order in the society and populace, therefore, any person who wants to be part of the disciplined force should be a person of utmost integrity and uprightness with unimpeachable/spotless character and clean antecedents; that despite the acquittal, it is the privilege and prerogative of Sindh Police Force. So, it is for the department to examine fairly and equitably whether the petitioner has been completely exonerated or not and his further induction may not become a constant threat to the discipline of the police force and public confidence and may also not demoralize and undermine the environment and frame of mind of the upright and righteous members of the force, therefore a person having criminal antecedents would not be fit to be offered or appointed in Police Force. He prayed for the dismissal of this petition on the same analogy.

4.We have heard the learned counsel for the parties and perused the records with their assistance and case law on the subject issue.

5.The issue for determination is whether a person acquitted in a criminal case can be disqualified from the police constable position based solely on the previous FIR disposed of under C Class in the year 2021.

6.Petitioner's Grievances is that respondents have delayed issuance of appointment letter despite being selected for the post of Driver Police Constable. As per the petitioner, he qualified for the post of Driver Police Constable, passing the Driving Test conducted by NTS in 2018 (Slip No 87, Roll No. 101074) and completing the interview (Slip No 56). However his appointment was withheld due to one criminal case, which culminated into C Class vide order dated 15.7.2021, based on the family dispute as a complaint intended not to pursue the case, which was registered after the initiation of the recruitment process in the year 2018.

7.To appreciate the aforesaid proposition, we have gone through the Sindh Civil Servants Act, 1973, and the rules framed thereunder as well as Police Rules, 1934, and Disciplinary Rules, 1988, but could not come across the provision which restricts such appointment in civil/public service on account of pendency of a criminal case, however, Section 15 of the Sindh Civil Servants Act, 1973 provides that no person convicted for an offense involving moral turpitude shall unless government otherwise direct, be appointed to a civil service or post, which means that a conviction does not automatically disqualify a candidate. The circumstances of the conviction must be considered. If the conviction does not involve moral turpitude, crime, violence, or association with antigovernment movements, it should not be a disqualifier, which is not the case at hand. Even the recruitment rules do not disqualify candidates solely based on pending criminal cases. A conviction itself is not a disqualification unless it involves moral turpitude. Besides denying appointment in civil/public posts, based on pending criminal cases can lead to injustice, as the accused might be acquitted by the trial court.

8.In the present case, the Sindh Police initiated a recruitment process for the post of Driver Police Constable in 2018. The petitioner was selected for the post after clearing the written test, physical test, and interview, and was denied the position of Driver Police Constable on the analogy that he was involved in a criminal case in the intervening period however the same was culminated, at the same time, we are sanguine of the fact that in disciplinary force, like police, it is expected that the persons/candidates having their character above board, free from any moral stigma, are to be inducted. Verification of character and antecedents is a condition precedent for appointment to the police force.

9.Coming to the case of the candidates having criminal records, in this regard our criminal justice is founded on the Code of Criminal Procedure, Pakistan Penal Code Qanoon-e Shahadat Order to lay norms for the admissibility of evidence. Registration of a criminal case against a person remains as an accusation of a crime or an offense till on conviction it culminates into a certainty to the guilt of a Government servant and on acquittal one is obliterated of all the allegations. The involvement of a person in a criminal case does not mean that he is 'guilty'. He is still to be tried in a Court of law and the truth has to be found out ultimately by the Court where the prosecution is ultimately conducted.

10.Once the candidate is acquitted of the alleged charges before the initiation of the recruitment process which means there was no accusation against him when he applied for the subject post, which does not disqualify him from participating in the recruitment process; besides that

stigma was no more in his character as the competent court of law cleared him from the charges and the state failed to file appeal against his acquittal from the criminal charges, in such a situation the candidate cannot be held disqualified for the civil/public posts. Normally a person convicted of an offense involving moral turpitude should be regarded as ineligible for Government Services. However, in cases where the Appointing Authority feels that there are redeeming features and reasons to believe that such a person has cured himself of the weakness, specific approval of the Government may be obtained for his/her employment.

11.In the instant case, the guidelines as set forth would not apply, as the criminal Court has not convicted the petitioner, rather he has been acquitted of the criminal charges based on evidence and 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 in any punishment by the department and held him disqualified for the post because acquittal for all future purposes. The aforesaid proposition has been set at naught by the Supreme Court of Pakistan in the case of the District Police Officer Mainwali and 2 others v. Amir Abdul Majid, 2021 SCMR 420.

12.There is no denial from the fact that in Government service it is expected that the persons having their character above board, free from any moral stigma, are to be inducted. Verification of character and antecedents is a condition precedent for appointment to a Government service. The candidates must have good character and provide two recent character certificates from unrelated individuals. What is discernible from the above is that the only impediment to being appointed to a Government service is the conviction on an offense involving moral turpitude but involvement, which does not culminate into a proof by conviction, cannot be a way out or guise to do away with the candidature of the petitioner.

13.The petitioner was not denied the appointment due to concealed information or character issues. The sole reason for denial was the one criminal case, which case had already been disposed of under C Class and the petitioner had already been exonerated by the police coupled with the order of the Magistrate acquitted. Mere pending cases may not be the sole reason for disqualification for the civil/public posts.

14.Coming to the case decided by this court on the subject issue and its applicability in the present case, this Court in the case of Constitution Petition No. D-6135/2023 (Re. Abdul Ghani Vs. P.O Sindh) & other connected petitions, after going through the judgments of the Supreme Court in the cases of National Bank and Faraz Naveed (Supra) held as under:-

“15. In view of hereinabove facts and circumstances of the case and by following the dicta laid down by the Hon”ble Supreme Court as above we are of the view that strict application of Section 15 of the Act without reading it with the proviso to Section 6 (3) ibid, is not appropriate to accommodate the Petitioners (except those who have been discharged by the Courts in “C” class) in any Employment with the Police Department as their antecedents and character does not appear to be satisfactory as per the criterion laid down by law as well as the judgments of Supreme Court; hence, their petitions are liable to be dismissed and it is so ordered. Insofar as the cases wherein the Police Report filed under Section 173 Cr.P.C. have been canceled in “C” class, are concerned, the opinion formed by this Court shall not apply and their cases may be considered by the Respondents in accordance with law without being influenced by the above findings. Their petitions are allowed to this extent.”

15.As a result of the foregoing discussion, this petition is disposed of. The IGP, Sindh, shall re-examine the petitioner's candidature and, if found suitable, appoint him as per his final selection and recruitment rules within one month. Compliance report shall be submitted to this Court through

MIT-II.

JUDGE

JUDGE

Shafi