Ajmal Shah (Ex-Addl: Sessions Judge, Hangu Vs The Honourable Chief Justice, Peshawar High Court, Peshawar through its Registrar and Administrative Committee of PHC, Peshawar

PESHAWAR HIGH COURT. PESHAWAR

(SUBORDINATE JUDICIARY SERVICE TNBUNAL)

Service Appeal No. 04/2020

Ajmal Shah

.Appellant.

V/s 1 The Honourable Chief Justice, Peshawar High Court, Peshawar through its Registrar at Peshawar.

2 The Administrative Committee, Peshawar High Court, Peshawar through Registrar, Peshawar High Court, Peshawar.

.Respondents

For the Appellant: Mr. Ali Azeem Afridi, Advocate along with appellant in person.

For the Respondents: Mr. Umer Farooq, AAG. Date of hearing: 02.12.2023

syED ARSHAD ALI. J:- This Appeal under Section 5 of the Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act, lggl ("Act') is directed against the Order No.2588-2688 dated 11.02.2020, whereby major penalty of removal from service was imposed upon the appellant' 2. Brief facts of the case are that the appellant, while serving as Additional District & sessions Judge, Hangu, received a Show Cause Notice No.22756lAdmn dated 18.11 .2019, which reads as under:- 'o'Whereas, you accused/officer, in the capacity of Add: Sessions Judge/Judge Special Court/Judge Model d criminal Trial court, Hangu happened to have seized with trial of the accused Ghani Gul son of Mir zaliincase FIR No.40/19 of CNSA based on FIR No'365 dated 04.04.2018 u/s 9-C CNSA P.S Hangu' Your judgment dated 15.05.2019 in the said case suffers from the following acts of omission and commissions: - i. That while passing sentencing order, you failed to have regard to the quantum of punishment provided under 9 C CNSA for the quantity of narcotic substance proved to have been recovered. You in an obvious disregard to the specific penal provision passed the sentencing

v order in the operative part of judgment dated - 15.05.2019 whereby the convict was sentenced with .imprisonment for the period already undergone as under trial prisoner and fined with Rs:30,000/-or imprisonment of 03 months in default. In a clear conflict with the aforesaid sentencing order, you also passed an order to place the convict on probation for the period of sentence of 03 years SI after deposit of fine amount Rs:30,000/-.

ii. That your order of sentencing and of probation as mentioned above is palpably elroneous not befitting to exercising of jurisdiction in accordance with law and appears to have been passed with consideration other than judicial. iii. That a judge/judicial officer, axiomatically, must wear laws on his sleeve and accordingly you are supposed to have full knowledge ofthe sentencing law i.e. section 9-C CNSA, 1997 as well as about the requirement of placing a convict on probation under the Probation of Offenders Ordinance, 1960. Your non-adherence to the requirement of said laws while passing the order of sentencing and of probation speaks about your ineffrciency, if you, do not have the functional knowledge of the said law; and otherwise, about our judicial unbecomingness. Your acts and omissions enumerated herein above make it evident that you are guilty of inefficiency and misconduct which is a valid ground for disciplinary action as prescribed under the Khyber Pakhtunkhwa Government Servants (Efficiency and Disciplinary Rules) decided to impose upon you one or more penalties as provided under Rule 4 of the said Rules. You are therefore, required to show cause, as to why the aforesaid penalties should not be imposed upon you and also intimate whether you desire to be heard in person.

If no reply to this notice is received within fifteen days of its delivery, it shall be presumed that, you have no defence to put in and in that case, an ex- parte action shall be taken against you. The said show cause notice was replied by the appellant, however, the proceedings were not yet completed when other cases were brought to the notice of Honourable Chief Justice of Peshawar High Court, Peshawar where in a same manner; as Stated above; judgments were rendered by s< the appellant. Accordingly, second Show Cause Notice No.903/Admn: dated 22.0t.2020, was issued to the appellant which reads as under: - 'oEEBEASrJou accused /offtcer, in the capacity of Additional Sessions Judge'I/Judge Special Court/Judge Model Criminal Trial Court, Hangu, happened to have seized with trial of: -

i. The accused Hanif Gul and Samand Ali in case FIR No.349 dated 07.10.2018 u/s 9 (c) CNSA P.S Saddar, Hangu.

ii. The accused Tariq Shah in case FIR No.410 dated 14.05.2018 under section 9 (c) CNSA P.S Doaba (Hangu).

iii. The accused Raza Ullah in case FIR No.577 dated 19.08.2018 under section 9 (C) CNSA P.S Doaba (Hangu).

iv. The accused Salam and Muhammad Javed in case FIR No.1 183 dated 18.12.2017 uls 9 (C) CNSA P.S City Hangu.

v. The accused Muhammad Rahim and Abid Ullah in case FIR No.690 dated 20.06.2019 under section 9 (C) CNSA/I5 AA P.S City Hangu.

vi. The accused Shah Tamas and Maqsood ur Rehman in case FIR No.463 dated 07.11.2018 under section 9 (C) CNSA P.S Thall (Hangu).

vii. The accused Adnan Gul in case FIR No.375 dated 07.07.2013. under section 9 (C) CNSA P.S Doaba Hangu.

viii. The accused Ghani Gul in case FIR No.365 dated 04.04.2018 under section 9 (C) CNSA P.S City Hangu.

ix. The accused Irfan Ullah and Muhammad Zubq in case FIR No.616 dated 08.09.2018 u/s 9-C CNSA P.S Doaba Hangu; and trial in all the cases enumerated above ended in conviction wholly or partially. However, your sentencing orders in all the said cases are not befitting to have been passed by a Judicial Officer well-versed in law and well-possessed with a judicious mind. This is because while passing sentencing order; you failed to have regard to the quantum of punishment provided under 9 (c) CNSA for the quantity of narcotic substance proved to have been recovered. You almost in all the said cases, in an obvious disregard to the specific penal provision passed the sentencing order in the operative part of the judgments cited above whereby the convicts were sentenced with imprisonment for the period of 03 years S.I. or for imprisonment already undergone. In a clear conflict with the aforesaid sentencing order, you also passed an order to place the convicts on probation for the period of sentence of 03 years S.I each after deposit of fine. Moreover, your orders of sentencing and of probation as mentioned above are palpably eroneous not befitting to exercise of ) jurisdiction in accordance with law and appear to have been passed with consideration other than <# judicial.

That a Judge/Judicial Officer, axiomatically, must wear laws on his sleeve and accordingly you are supposed to have full knowledge of the sentencing law i.e. Section 9 (c) CNSA, 1997 as well as about the requirement of placing a convict on probation under the Probation of Offenders Ordinance, 1960. Your non-

adherence to the requirement of said laws while passing the order of sentencing and of probation speaks about your inefficiency, if you do not have the functional knowledge of the said laws; and otherwise, about your judicial unbecomingness. Your acts and omissions enumerated hereinabove make it evident that you are guilt of inefficiency and misconduct which is a valid ground for disciplinary action as prescribed under the Khyber Pakhtunkhwa Govemment Servants (Efficiency & Discipline) Rule, 2011. As a result, thereof, I, as Competent Authority, have tentatively decided to impose upon you one or more penalties as provided under Rule 4 of the said Rules.

You are, therefore, required to show cause as to why the foresaid penalties should not be imposed upon you, and also intimate whether you desire to be heard in person.

If no reply to this notice is received within seven (07) days of its delivery, it shall be presumed that, you have no defence to put in, and in that case, an ex-parte action shall be taken against you.

The said show cause notice was replied by the appellant as under: - "In respondent to para No.l; it is submitted that your honour have rightly referred to that the undersigned having seized with trial of cases as is obvious from the show cause notice; wherein the undersigned having acted in judicial capacity and as such having appreciated the cases based on evidence available at the relevant time; which decisions are open to judicial scrutiny before the Honourable High Court.

In Nusrat Yasmin's case, it was held that, "High Court, under our Constitution, enjoys both judicial and administrative powers and functions. Judicial powers are drawn from the jurisdiction enjoyed by the High Court under the Constitution or the law. Article 175 of the Constitution declares that "no court shall have any jurisdiction save as is or may be conferred on it by the Constitution or by or under any law". The High Court enjoys original, appellate and revision jurisdiction under various provisions of law and the Constitution and while exercising these jurisdictions, the High Court enjoys the power to modiff, set aside or uphold the judgment of the Courts below. As a matter of ') routine, the High Court comes across orders of the fr lower Court, which are not justified either in law or in fact, and modifies them or sets them aside. The concept of appeal and revision to a higher forum presumes that a judge inspite of discharging his or her duties to the best of his abilities and capacity may still elr or make a mistake. "A judge who has not committed an error is yet to be bom". The High Court while adjudicating a lis is free to examine all aspects of the case that are necessary

and integral for the determination of the case and this includes, in a particular case, bias or malice on the part of the judge of the District Judiciary, if the record of the case supports it, This, at best, will result in setting aside the impugned judgment on the ground of bias or malafide. The Court, while exercising constitutional, appellate or revisional jurisdiction under various laws is to judicially examine and review the orders and judgments of the Courts below on questions of law and facts. What is under examination on the judicial side is the legal reasoning behind the order or the judgment. Error, if any, in the legal reasoning, application of law or appraisal of evidence by the Courts below, is rectified by the High Court, in accordance with the law, which may include the ground of bias or malice."

It is important to note; that the undersigned have rendered judgrnent(s) in good faith, based on assistance available at bar and as such extraneous consideration (s) as alleged are denied in toto. Even otherwise, if the competent authority takes hold of the fact that the judgment(s) rendered are not benefitting to exercise ofjurisdiction; the same can be looked at by the Honourable High Court. In response to para No.2; it is submitted that, the undersigned reiterates the factum that the judgment(s) rendered were in good faith and based upon assistance provided at the bar.

Moreso; the cases taken note of are also pending adjudication before the Honourable Peshawar High Court, Peshawar which can be looked into at that stage, if required.

In lieu of the above; it is therefore requested that the subject show cause notice No.903/Admn dated 22.01.2020 may graciously be filed.

The undersigned desires to be heard in person." 3, The worthy Chief Justice, Peshawar High Court, Peshawar being not satisfied from the said reply, through the impugned order dated ll.Oi.2O20 bearing Endst: No.2487- 587 & No.2588-2688 dated 12.02.2020 has imposed major penalty of removal of the appellant from service. Feeling aggrieved, the appellant has filed Departmental appeal dated 23,10.2020 before Registrar Peshawar High Court, Peshawar which remained unattended and thus the appellant filed 3€ Service Appeal No.02l202 1 .

4, Arguments heard and record perused.

5.It is evident from record that when the Division Bench of Peshawar High Court was hearing a case/criminal revision arising out of judgment passed by the appellant while posted as Additional Sessions Judge, Hangu wherein

one accused Hanif Gul was found in possession of 36- kilograms of Chars, where he was convicted by the appellant on his alleged confession/plead guilty to suffer 03-years SI and imposed fine of Rs:30,000/-. The sentence was indeed in flagrant violation of the relevant law i.e. 9-C of the Control of Narcotics Substance Act, 1997, therefore, the Honourable Bench had brought the matter to the notice of the then Honourable Chief Justice of Peshawar High Court through Member Inspection Team ('MIT'). Accordingly, the MIT had prepared a note before the Chief Justice Peshawar High Court, Peshawar. The worthy Chief Justice Peshawar High Court, Peshawar considering the contents of the note had directed the MIT to visit the Court of the appellant for collection of the record. The MIT accordingly visited the Court and has collected certain record which is evident from para 17 of his report which is reproduced as under:- "(17). I also obtained judgments in case FIR No.616 dated 08.09.2018 in which 2230-grams Chars were recovered and the accused was sentenced 03-years R.I. In case FIR No.365 dated 04.04.2018 in which 10,000-grams (10-KG) Chars were recovered and accused was sentenced to period already undergone. In case FIR No.375, Chars 15,000-grams (15-KG) were recovered and accused was sentenced to period already undergone. In case FIR No.463, Chars 26274- grams (26.2KG) were recovered and accused was sentenced to period already undergone. In case FIR No.349, Chars 36890-grams (36.890 KG) were recovered and accused was sentenced to suffer 03- years S.I. In case FIR No.1183, Chars 24000- gftrms (24.00KG) were recovered and accused was sentenced to O3-years S.I. In case FIR No.577, Chars 39660-grams (39.660KG) were recovered and accused was sentenced to period already undergone. IN case FIR No.4l0, Chars 15600- grams (15.600KG) and Opium6250-grams (6.250 KG) were recovered and accused was sentenced to ') period already undergone. IN case FIR No.690, { Chars 8050-grams (8.50KG) were recovered, while accused was sentenced to period of 03-years

S.I.

6, On the basis of said report initially a show cause notice was issued to the appellant in respect of one case alone, however, later, the same was followed by another

show cause notice wherein the other cases were also referred seeking explanation of the appellant. The appellant in his reply has shown no remorse on the matter and has explained that he had done it as a routine matter while performing his official duties, his judgment was subject to correction by the appellate forum, hence his case did not fall within the mischief of misconduct warranting any disciplinary proceeding in the matter. The same arguments were also advanced by the learned counsel for the appellant while arguing the case.

L During the hearing, the office was directed to trace out as to whether in any other case the present appellant has adopted the aforesaid Modus Operandi. The office has placed on file the following record: - i. Criminal Appeal No.l155-P of 2019 which was decided on 14.10.2020.

In the said case too from the possession of accused 39680-grams of Chars were recovered and he was only sentenced for 03-years. The said sentence was enhanced by this Court while rendering judgment in Crminal Appeal No.1155-P of 2019 dated 14.10.2020.

ii. Criminal Appeal No.1427-P of 2019.

In this case the accused was found in possession of huge quantity of narcotics and the present appellant was awarded lesser punishment. Though, in the appeal the accused was acquitted of the charges as the prosecution could not establish the case, however, the conduct of the appellant remained the same.

Similar, is the position in Criminal Appeal No.936-P 1 of 2019 decided on 04.02.2021; Criminal Appeal No.983-P of 2019 dated 20.t0.2022; Criminal Appeal No.92-P of 2019 decided on 24.02.2023; criminal Appeal No.727-P of 2023 decided on 14.06.2023; Criminal Appeal No.584-P of 2023 decided on 19.10.2023.

8.Sub section 'c' of Section 9 of Control of Narcotics Substance Act,1997 reads as under: -

(c)death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotics drug psychotropic substance or controlled substance exceeds the limits specific in clause (b).

Provided that if quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life."

9.It is clear from the language of section 9 (c) of Control of Narcotics Substance Act, 1997 , that if accused is found guilty of having in possession of any psychotropic substance more than ten kilograms, then the punishment should not be less than imprisonment for life. What the present appellant in all the aforesaid cases has done that he would award punishment of 03-years in such like cases and then would order for the release of the accused on probation. We cannot assume that the aforesaid act or judgment passed by the appellant in such like cases were due to ignorance of law; the appellant remained a Judicial Officer for 28-years and the language of the law (9-c) of CNSA is very clear in this regard, therefore, the misconduct of the appellant as well as the fact that he is remained ineffrcient while performing his duties is evident from record.

10.We are mindful of the fact that we are dealing with the case where a judicial officer has been charged for misconduct on account of judgments which he had delivered in flagrant violation of law. Therefore, we should be very careful to examine the culpability of judicial officer as far as his service indiscipline is concerned. De-smith in his work on judicial review of administrative action; while dealing with a a { question of liability of the Members of the Tribunal for excess of jurisdiction observed: "individuals ate though normally to be adequately protected from the consequences of an unauthorized decision by the availability of remedies to set aside: the further imposition of personal liability may deter judges from the proper performance of their tasks to the

detriment of the public interest. M.A. Rehman vs. Federation of Pakistan and others (1988 SCMR 691).

11.We are conscious of the settled proposition of law that a single slip or lapse on the part of a civil servant, would not justiff inference of his being insufficient and in such circumstances, the punishment would be unwarranted. A.U. Musarrat vs. Government of West Pakistan (PLD 1977 SC 24) and Punjab Food Department Lahore and another v. Javed Iqbal and others (2006 SCMR 1120). However, the case of the appellant is an exception to the said Rules, it was not just one case in which the appellant had inflicted a punishment of three years upon the accused, who were charged for offences under section 9(c) CNSA wherein the minimum punishment is ten years and the cases in which the appellant was dealing carried at least life imprisonment as a sentence. The appellant has adopted the methodology in almost nine (09) cases and all the cases were dealt with in the same fashion.

12.A Judicial officer is not expected to administer justice whimsically; he being repository of public office has to administer justice in accordance with law. We are mindful of legal dispensation that a Judge may err either in appreciating evidence or appreciation of law to a /ls and the effoneous judgment is subject to correction by the Appellate Court. However, if a Judicial Officer develops a habit by delivering a judgment in disregard of a clear law and this happens continuously then the said Judicial Officer cannot be allowed to act as a Judicial Officer and the judicial dispensation cannot be left at the whims of such officer as it # will obviously damage the reputation of institution at public at large. The Judicial officer while administering law & justice should be very careful while performing his judicial functions and any deliberate attempt to decide the matter in violation of a legal provision is unbecoming of a Judicial Officer.

13.Khyber Pakhtunkhwa Government Servants (Efficiency & Discipline) Rules, 20ll ('Rules 20ll'), is applicable to the disciplinary matter of a Judicial Officer of Khyber Pakhtunkhwa. Rule 2 (g (i) (l); (i) (ii) (iii). "2. Definitions.--(l) In these rules, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say- (a)....

(b)....

(g)"com.rption" means-

(i)accepting or obtaining or offering any gratification or valuable thing, directly or indirectly, other than legal remuneration, as a reward for doing or for bearing to do any offrcial act; or

(ii)dishonestly or fraudulently misappropriating, or indulging in embezzlement ormisusing Govemment property or resources; or (iii) entering into [voluntary retum or] plea bargain under any law for the time being in force and returning the assets or gains acquired through comrption or comrpt practices voluntarily; or (iv) possession ofpecuniary sources or property by a Govemment servant or any of his dependents or any other person, through his or on his behalf, which cannot be accounted for and which are disproportionate to his known sources of income; or

(v)maintaining a standard of living beyond known sources of income; or

(vi)having a reputation of being comrpt;

(i)"inefftciency" means failure to efficiently perform functions assigned to a Govemment servant in the discharge of his duties;

(l)"misconduct" includes-

(i)conduct prejudicial to good order or service discipline; or

(ii)conduct contrary to the Khyber Pakhtunkhwa Province Govemment Servants (Conduct) Rules, 1987, for the time being in force; or (iii) conduct unbecoming of Government servant and a gentleman; or" - 11. Section 3 of the Rules envisages grounds for # proceeding against a civil servant under the said rules where rule 4 provides the following penalties if a civil servant is found guilty of comrption, inefficiency or misconduct. "4 Penalties. --(1) The following are the minor and the major penalties, namelY:

(a)Minor Penalties:

(i)Censure;

(ii)Withholding, for a specific period, promotion or increment subject to a maximum of three years, otherwise than for unfitness for promotion or

v financial advancement, in accordance with the rules or orders pertaining to the service or post: Provided that the penalty of withholding increments shall not be imposed on a Govemment Servant who has reached the maximum of his pay scale;

(iii)Recovery of the whole or any part of any pecuniary loss caused to Govemment by negligence or breach oforder;

(b)Major penalties:

(i)[Reduction to a lower post of pay scale or to a lower stage in a time scale for a maximum period of five years:

Provided that on restoration to original pay scale or post, the penalized Govemment servant will be placed below his erstwhile juniors promoted to higher posts during subsistence of the period of penaltyl

(ii)Compulsory retirement;

(iii)Removal from service; and

(iv)Dismissal from service.

(2)Dismissal from service under these rules shall disqualiff a Government servant from future employment under Govemment.

(3)Any penalty under these rules shall not absolve a Government servant from liability to any other punishment to which he may be liable for an offence, under any other law, committed by him while in service.

15.In the present case allegation against the appellant though are serious in nature but no regular inquiry was conducted to unearth whether the appellant also remained involved in comrption that is to say whether he had obtained any pecuniary advantage in any matter where he had inflected lesser punishment. Therefore, neither it is the case of prosecution nor allegation of corruption could be established, however, the allegation against the present appellant that he remained inefficient and is guilty of misconduct is evident from record as stated above.

16.The appellant in the instant case for the misconduct was removed from service at the end of his career as he has completed 28 years of service. Therefore, 4 inflicting of such harsh remedy of removal from service in absence of allegation of comrption does not commensurate with the guilt of appellant. It was held by the apex court in the case of "Auditor General of Pakistan Vs Muhammad Ali (2006 SCMR 63),thatthe philosophy of punishment is based on the concept of retribution, which may be either through

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the method of deterrence or reformation. The purpose of deterrent punishment is not only to maintain balance with the gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrong doer. In service matters, the extreme penalty for minor acts depriving a person from right of earning would definitely defeat the reformatory concept of punishment in administration of justice. In view thereof we would not take any exception to the view of the matter taken by the Tribunal". Similarly, in the case of "Nadeem Raza (2023 SCMR 803), the apex Court has observed that, the modern notion of proportionality requires that the punishment ought to reflect the degree of moral culpability associated with the offence for which it is imposed. In order to render punishment compatible with justice, it is not enough to restrict punishment to the deserving, but also to restrict the degree of punishment to the degree that is deserved. The o'moral degree of wrongfulness is described variously as the culpability", "gravity" or "depravity" associated with the offence. Therefore, along with the gravity of the misconduct, interference on the grounds of proportionality in the penalty imposed for misconduct is also assessed in view of the depravity or moral culpability associated with the same. The test of proportionality is, therefore, more stringent in cases of misconduct involving moral turpitude in view of the depravity or moral culpability involved."

17.In view of what has been stated above, the F finding of guilt recorded by the competent authority that the appeltant is guilty of misconducVinefficiency does not call for interference, however, the quantum of punishment in the present case requires modification, thus, we partially allow this as well as connected Service Appeal No.2 of 2021, and convert the penalty of removal from service of the appellant

under rule 4 (i) (b) (iii) into the major penalty of compulsory retirement from service under rule 4 (b) (ii) of Rules, 2011. Announced

MEMBER

MEMBER

Nadir SSS (DB) Mr. Justice Syed Arshad Ali & Mr. Justice Muhammad Naeem Anwar