IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Constitutional Petition No. D- 992 of 2014.

Present:

Mr. Justice Omer Sial.

Mr. Justice Zulfiqar Ali Sangi.

Petitioner: Majid Ali Memon, through Mr. Habibullah G. Ghouri, Advocate.

Respondent: Senior Superintendent of Police Shikarpur and others, through Mr. Liaquat Ali Shar, Additional Advocate General.

Dates of hearing: 20.04.2021.

Date of the Judgment: 04.05.2021.

JUDGMENT

Zulfiqar Ali Sangi, J-. The constitutional petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973, has been filed by the petitioner, stating therein that petitioner did contest process for his appointment to the post of Constable in Sindh Police and on qualifying the test he was referred for verification of his character antecedence and medical examination and after undergoing codal formalities he was issued character as well as physical fitness certificate by the relevant authorities. However, SHO of the area, where petitioner resides, namely, SHO P.S Jhali Kalwari (District Shikarpur) vide his report furnished to the S.S.P Shikarpur by mentioning that the petitioner was involved in case F.I.R No.02/2014, registered under Sections 452, 114, 337-A (i), 337-F (i), 148 & 149 P.P.C, hence petitioner was not issued appointment order. It is further case of the petitioner that he stood acquitted from the aforesaid criminal case vide order dated 13.8.2014 in terms of Section 249-A Cr.P.C; such copy of order has been annexed with the petition, even then the petitioner was not issued appointment order, as such he has filed instant petition with the following prayer(s):-

(i) To direct the respondents to issue appointment order of the petitioner for the post of police Constable.

(ii) To issue writ of prohibition restraining the respondents from filling the vacancy of the petitioner.

(iii) Any other equitable relief.

2. In response to the notice, the respondents No.1 and 2 filed their statements/ para-wise comments.

3. The respondent No.1/ S.S.P Shikarpur, in his comments has mentioned that, character and antecedents of the petitioner was verified from SHO concerned which revealed that petitioner stood challaned in a criminal case vide Crime No.02/2014 of P.S Jhali Kalwari, hence his candidature was rejected and due to his involvement in a criminal case the appointment order was not issued to petitioner. The respondent No.2 / D.I.G Larkana also took the same stance.

4. Learned counsel for petitioner vehemently contended that there was only one case registered against petitioner, which was a private quarrel, in which case also the petitioner has been acquitted vide order dated 13.8.2014 passed by learned Civil Judge and Judicial Magistrate, Lakhi, in Criminal Case No.110 of 2014, available at annexure-“C” page 13 of the Court file hence the respondent cannot deprived the petitioner from his fundamental right of appointment as Police Constable on such ground. He further submitted that the petitioner was/ is not convicted previously and having no other allegation against him.

5. Mr. Liaquat Ali Shar learned Additional Advocate General on the other hand has referred to an Order passed by Hon’ble Supreme Court of Pakistan in C.P.L.A. No. 165-K of 2012 dated 11.6.2012, in which one person Shahid Ali Jatoi was held to be not eligible for appointment in the Police Department as he has a crime record. However, Mr. Ghouri learned counsel for petitioner rebuts the arguments by submitting that distinguishing feature between the case of Shahid Ali Jatoi and the present petitioner is that Shahid Ali Jatoi had a series of cases registered against him and hence it was held that he is not eligible; he submits that this is not the case of present petitioner.

6. We have heard Mr. Habibullah G. Ghouri, Advocate for petitioner and Mr. Liaquat Ali Shar, Additional Advocate General for respondents and perused the material available on the record with their able assistance.

7. This court vide order dated: 03-02-2021, call CRO of the petitioner and the Shahid Hussain who’s petition was dismissed by this court and said order was maintained by Honourable Supreme court and same has been relied by the Learned Additional Advocate General Sindh as to see and consider that whether the case of petitioner is distinguished from the case of Shahid Hussain?. The said petition bearing CP No-D 2095 of 2011 was also ordered to be tagged with this petition. In compliance of the aforesaid order Senior Superintendent of Police Larkana filed CRO in respect of the petitioner by showing only one case being crime No. 02/2014 under sections 452, 337 Ai, fi, 147, 148, 149 114, 34 and 504 PPC wherein the petitioner was acquitted by the court. The SSP Larkana also filed the CRO of the Shahid Hussain in which following cases are mentioned against him.

Sr. No.	Crime No.	U/S	P.S
1	259/2008	324,353 P.P.C	Market
2	120/2009	302 P.P.C	Market
3	127/2009	13-DAO	Market
4	20/2012	324,353 P.P.C	Market
5	43/2014	392 P.P.C	Market
6	159/2008	395, 397 P.P.C	Market
7	199/2009	457, 380 P.P.C	Market
8	44/2014	392 P.P.C	Market
9	41/2015	324, 353 P.P.C	Market
10	66/2016	9-C, C.N.S.	Darri
11	18/2020	324, 353, 337-AII P.P.C	Akil

8. From the perusal of order passed by this court in the petition of Shahid Hussain and maintained by the Honourable Supreme Court, relied upon by learned Additional Advocate General Sindh, it appears that the cases of the said Shahid Hussain were of a serious nature, the commission of which was spread over a period of 12 years, whereas as per learned counsel the case against the present petitioner appears to be one of a petty offence in that too the petitioner was acquitted, this submission however, was opposed by the learned AAG. Further the case of Shahid Hussain was on different footings from the case in hand as an appointment order was issued in favour of Shahid Hussain and subsequently the matter was scrutinized through the departmental selection committee, which recommended the rejection of the appointment order. In the present case, no appointment order was issued in favour of the petitioner nor his case was scrutinized by the departmental selection committee, therefore, in our view the case relied upon by learned Additional Advocate general is not helpful to his contentions in the circumstances of the present situation.

9. We have carefully examined the Sindh Civil Servants Act, 1973, and Rules framed thereunder so also the Police Rules, 1974, and the Disciplinary Rules, 1988, and could not find any provision which restrict such appointment in Civil/Public service on account of the pendency of a criminal case or where the candidate acquitted from the charges leveled in the criminal case, however, section 15 of the Sindh Civil Servants Act, 1973 provides that no person convicted for an offence involving moral turpitude shall unless government otherwise direct, be appointed to a civil service or post, which is not the case in hand. For the ease of reference section 15 of the Civil Servants Act, 1973 is reproduced as under:-

15. No person convicted for an offence involving moral turpitude shall, unless government otherwise direct, be appointed to a civil service or post.

10. From the perusal of the comments filed by the respondents it appears that they have a only ground for the refusal to issue appointment order to the petitioner was a registration of a criminal case against the petitioner, from which the petitioner was acquitted, it was in between the private parties and the same was not of a serious nature, and in absence of any provision in the aforesaid laws, where in a such situation there is no any restriction on appointment then the petitioner was entitled for the appointment if otherwise he fulfilled all other requirements, the respondents not pointed out any other reason for his non appointment.

11. In the above circumstances we allow this petition and direct the respondents/competent authority to scrutinize the candidature of the petitioner for the post of police constable without taking influence from the fact of the case registered against the petitioner and if otherwise the petitioner found fit in all respect for the appointment, then his candidature may be processed for the appointment strictly under the Recruitment Rules for the said post within one month. However, it is made clear that since this petition was filed in the year 2014 therefore the age limit if the petitioner cross after the year 2014 then the same may not come in the way of his appointment as police constable.

12. In view of the above this petition is disposed of along with listed application (s).

J U D G E