' MUHAMMAD NAWAZ ABBASI, J.--- These connected appeals by leave of the court have been directed against the judgments, dated 7-6-2003 passed by N.-W.F.P. Service Tribunal, Peshawar, in the separate appeals filed by the respondents challenging the legality of the penalty of dismissal from service imposed upon them by the competent authority. These appeals, along with the connected petitions filed by the respondents, against the same judgments are proposed to be disposed of through this single judgment.
2. Leave was granted in these appeals vide order, dated 13-5-2001 as under:-- "Syed Jaffar Shah, Maqsood Ahmad, Taj Gohar and Muhammad Sardar, respondents while serving as Assistant Superintendent, Head Warder, Deputy Superintendent acting as Superintendent and Warder of Abbottabad Jail, respectively, were subjected to disciplinary proceeding under the N.- W.F.P. Removal from Service (Special Powers) Ordinance, 2000 for facilitating escape of three condemned prisoners and one dangerous under-trial prisoner inter alia catering for an abandoned ladder and a smuggled pistol, culminating into imposition of major penalty of dismissal from service on 4-10-2001; however, granting their appeals N.-W.F.P. Service Tribunal, Peshawar reduced Syed Jaffar Shah and Maqsood Ahmad's penalty to reduction of their present scales by three stages and Taj Gohar's to compulsory retirement exonerating Muhammad Sardar of the charges reinstated him in service with back-benefits vide impugned judgment, dated 7-6- 2003.
(2) Against which leave to appeal is being sought primarily contending that the reduction in the quantum of penalty and exoneration of the charges of the respondents respectively, has the potential tendency of encouraging perpetuation of further indiscipline in the members of the disciplined force contributing to the ever deteriorating law and order situation contrary to the deterrent aspect of punitive administration of justice, which substantially being a question of public importance within the contemplation of Article 212(3) of the 1973 Constitution, leave to appeal is granted in C.Ps. Nos.576-P to 579-P of 2003. In view where of C.Ps. Nos.665-P, 682-P and 1803 of 2003 preferred by the respondents are ordered to be heard along therewith. "
3. The facts in the background giving rise to these appeals are that Syed Jafar Shah, Assistant Superintendent Jail, Maqsood Ahmad, Head Warder, Taj Gohar, Superintendent Jail and Muhammad Sarwar, Gate Keeper, respondents in Civil Appeals Nos.113 to 116 of 2005 while posted at District Jail Abbottabad were on duty on 31-5-2005 when at 1-35 p.m. Three condemned and one under-trial prisoners escaped from the District Jail. The respondents were charge-sheeted with the statements of allegations as under:-- Syed Jaffar Shah, Assistant Jail Superintendent
(1) While attached to District Jail Abbottabad as Assistant Superintendent, Jail (BPS-14) Syed Jaffar Shah, performing his duties as in charge condemned prisoners cells, failed to enforce the provisions of Rule 340(i) and (v) of the Pakistan Prison Rules, according to which only one condemned prisoner is permitted to occupy courtyard for half an hour each morning and evening, duly handcuffed. As a consequence of this, three condemned prisoners and a dangerous under- trial prisoner named below escaped from the jail by overpowering the warder on duty:--
(1) Condemned prisoner Asif son of Hassan Din.
(2) Condemned prisoner Rab Nawaz son of Muzaffar Khan.
(3) 'Condemned prisoner Sajjad son of Ayub.
(4) Under-trial prisoner Haroon son of Gohar Rehman.
(2) He failed to conduct proper searches of condemned prisoners as required under rule 342 of the Pakistan Prison Rules, as a consequence of which, a pistol could not be recovered from the possession of one of the condemned prisoners.
(3) He failed to do all lawful acts and exercised the utmost vigilance for the purposes of preventing any prisoner from breaking out of prison or escaping as required under Rule 1072(1) of the Pakistan Prison Rules. As a consequence of this, a ladder taken inside the jail for white-washing was not taken out of the jail. By taking advantage of it, the prisoners made good their escape with the help of the ladder, by scaling over the main wall of the jail."
' Maqsood Ahmed, Head Warder ' While attached to District Jail, Abbottabad as In charge condemned prisoners cells, Head Warder (BPS-7) Maqsood Ahmad failed to enforce the provisions of Rule 340(i) and (v) of the Pakistan Prison Rules, according to which only one condemned prisoner is permitted to occupy courtyard for half an hour each morning and evening, duly handcuffed. As a consequence of this, three condemned prisoners and a dangerous under-trial prisoner named below escaped from the jail by overpowering the warder on duty:--
(1) Condemned prisoner Asif son of Hassan Din.
(2) Condemned prisoner Rab Nawaz son of Muzaffar Khan.
(3) Condemned prisoner Sajjad son of Ayub.
(4) Under-trial prisoner Haroon son of Gohar Rehman.
(2) He failed to visit cells occupied by condemned prisoners frequently at uncertain hours during the day and night and satisfy himself that the warders were alert on duty, the prisoners were present and the cells were secure as required under the prevision of rule 341 of the Pakistan Prison Rules. As a consequence of this the above named prisoners managed to escape from the jail.
(3) He failed to recover the pistol from the possession of one of the prisoners confined in the condemned prisoners cells."
Taj Gohar, Superintendent Jail
(1) While attached to District Jail, Abbottabad as Deputy Superintendent-cum-Superintendent Jail (BPS-16) Taj Gohar failed to enforce the provisions of Rule 340(i) and (v) of the Pakistan Prison Rules, according to which only one condemned prisoner is permitted to occupy courtyard for half an hour each morning and evening, duly handcuffed. As a consequence of this, three condemned prisoners and dangerous under-trial prisoner named below escaped from the jail:
(i) Condemned prisoner Asif son of Hassan Din.
(ii) Condemned prisoner Rab Nawaz son of Muzaffar Khan.
(iii) Condemned prisoner Sajjad son of Ayub.
(iv) Under-trial prisoner Haroon son of Gohar Rehman.
(2) He failed to exercise proper control over officers subordinate to him and failed to ensure that they were efficient in the discharge of their duties, as required under Para.1024 of the Pakistan Prison Rules, as a consequence of which, a pistol was smuggled inside the jail.
(3) He failed to take proper precautions about the ladder inside the jail. By taking advantage of it, the above mentioned prisoners managed to escape, by scaling over the main wall of the jail."
' Muhammad Sardar, Gate Keeper "While attached to District Jail, Abbottabad as Gate Keeper Warder (BPS-5) Muhammad Sardar failed to conduct proper searches of unauthorized/prohibited articles, as required under Rule 1168 of the PPR, as a consequence of which, a pistol found its way inside the jail."
3. In consequence to the regular inquiry conducted by an inquiry committee appointed by the competent authority, all the four respondents having been found guilty of the charges, were awarded major penalty of dismissal from service. The respondents, having exhausted departmental remedy, filed separate appeal before the Service Tribunal which were partly allowed with reduction in the penalties as under.
' The dismissal of Syed Jaffar Shah, Assistant Superintendent Jail and Maqsood Ahmed, Head Warder, was converted into reduction in time scale by 3 stages. The appeal or Ali Ghafoor, Superintendent Jail, was disposed of with conversion of penalty of dismissal from service awarded to him into compulsory retirement with observation that although he was not directly involved in the incident but the same was the result of his loose administration. The appeal of Muhammad Safdar, Gate Keeper was allowed with observation that he was not exclusively responsible for search at the gate and thus, was reinstated in service with all back-benefits.
4. The learned Additional Advocate - General Government of N.-W.F.P. Has contended that the punishment awarded to the respondents by competent authority was quite in accordance with law and the interference of the Tribunal in the matter was not at all justified. He submitted that the Service Tribunal in exceptional circumstances and suitable cases determine the question relating to the quantum of punishment, in exercise of its power under section 7 of N.-W.F.P. Service Tribunals Act, 1973 but this power is not supposed to be exercised in an arbitrary manner. The learned Additional Advocate-General has argued that the respondents, without giving satisfactory explanation of the circumstances under which the prisoners escaped from jail, tried to shift the responsibility of the incident to each other and consequently, the interference in the matter of punishment at the cost of jail administration was against the mandate of law. The Additional Advocate-General pointed out that the incident happened as the result of breach of rules 340(i),
(iv) and 342 of Pakistan Prison Rules by the jail staff, therefore, notwithstanding the plea of respondents of lack of knowledge of the scheme of prisoners of escape from jail, the omission on their part not to strictly follow the rules and take proper care to avoid such incident, would constitute gross misconduct. In nutshell the contention of learned Additional Advocate-General was that the failure of the respondents not to take proper care and discharged their duty strictly in accordance with the Pakistan Prison Rules was a serious matter and the interference of the Tribunal in the matter of punishment would amount to encourage the indiscipline in the jail.
5. Learned counsel for the respondents, on the other hand, has contended that none of the respondents in his individual capacity was responsible for the incident which happened by chance and he taking us to the report of Inquiry Officer and the evidence on record, argued that the respondents were held guilty of the charge on the basis of presumption that they facilitated the condemned prisoners to escape from the jail. Learned counsel appearing for Syed Jaffar Shah, Assistant Superintendent of Jail has argued that one of the condemned prisoner while running after escaping from the jail was apprehended by the Assistant Superintendent at a reasonable distance therefore, his action would be suggestive of his extra vigilance and proof of the fact that he was neither negligent nor directly or indirectly involved in the matter. Learned counsel for Maqsood Ahmed, Head Warder and Muhammad Sardar, Warder, have made an attempt to convince us that Head Warder at the time of incident was not on duty whereas Warder while performing duty of Gate-keeper was not responsible for the search of the visitors. The learned counsel for Taj Gohar, Superintendent Jail argued that his client was held responsible for loose administration but the actual position was that jail was over-crowded and it was not possible for him to personally check the prisoners and visitors. He submitted that the members of the subordinate staff were individually responsible for their act and lapse on the part of anyone of them, was not due to the weak administration.
6. Having perused the record with the assistance of learned counsel for the parties and examined the relevant provisions of Pakistan Prison Rules (Jail Manual) deem it proper to reproduce the relevant rules to appreciate the respective contentions raised by the learned counsel for the parties. Rule 340(i) and (iv) of the (ibid) rules, are as under:--
(i) A condemned prisoner should (unless disallowed for special reasons by the Superintendent in writing), be permitted to occupy the courtyard for half an hour, each morning and evening. Only one such prisoner out of eight prisoners at a time should be allowed to do so.
(iv) A prisoner sweeper or other prisoner allowed to enter the cell of a condemned prisoner to perform any duty, shall first be carefully searched and while carrying out his work, shall be kept under close supervision by the Warder on duty."
7. The above rules provide that not more than one prisoner should be permitted to occupy the courtyard for half an hour except with special permission of Superintendent Jail. It is the duty of Warder to personally watch the cell of prisoner but door must be opened in his presence and similarly Head Warder is bound to visit the cell occupied by a condemned prisoner and in case of any suspicion, he shall report the matter to Deputy Superintendent Jail as provided under Rule 341 as under:-- "The Head Warder on duty shall visit the cells occupied by condemned prisoners frequently at uncertain hours during the day and night and cells secure and the light are burning brightly. He shall report forthwith to the Deputy Superintendent any neglect on the part of the sentry or any unusual or suspicious conduct on the part of a prisoner."
' Rule 342 of (ibid) Rules relates to the duty of Assistant Superintendent Jail, as under:-- "The Assistant Superintendent In charge shall have every condemned prisoner carefully searched at morning and evening. He shall have the cells carefully examined in his presence and shall satisfy himself that the prisoner has no forbidden articles in his possession and that the cell is sound and secure. He shall also examine the prisoner's food and be present when it is issued. He shall report in his report book that he has carried out these duties."
The Superintendent Jail has to keep close watch on his subordinate regarding performance of their duties strictly in accordance with rules and must be vigilant about all affairs of the jail. The Superintendent Jail being responsible for the administration of jail, has collective responsibility of the lapses on the part of his subordinates, therefore, he must suitably adopt preventive measures to avoid any unpleasant incident.
8. The perusal of record would show that none of the respondents performed his duty strictly in accordance with the rules referred above and in consequence thereto, the condemned prisoners availed the opportunity of escaping from jail. It is not understandable that a ladder which was being used for white-wash why was being kept within the reach of condemned prisoner and similarly there was no justification to permit the prisoners to keep pistol in his possession in the jail.
In view thereof it could be visualized that without the connivance of the jail staff, the prisoners could not possibly implement the scheme of escape from D jail and notwithstanding the direct involvement of the respondents, the incident was definitely result of their gross negligence. Taj Gohar, being Superintendent Jail was overall responsible for administration of the jail and Syed Jaffar Shah, the Assistant Superintendent Jail was on supervisory duty at the relevant time whereas Maqsood, Head Warder was deputed for search of the cell and Muhammad Sarwar,. Warder in the courtyard was responsible for the search of condemned prisoners and the. Visitors. The respondents having been found grossly negligent in performing their duty were rightly held guilty of the charge and we take no exception to the finding on the question of their guilt.
9. The pivotal question for determination in the present cases, as noted in the leave granting order, would be whether Tribunal in exercise of powers under section 7 of N.-W.F.P. Service Tribunals Act, 1974, was justified to interfere in the question of punishment Section 7 of the (ibid) Act provides as under:-- "7. Powers of Tribunals. (1) A Tribunal may, on appeal, confirm, set aside, vary or modify the order appealed against.
(2) A Tribunal or a Bench constituted under section 5 shall, for the purpose of deciding any appeal be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of--
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents;
(c) issuing commission for the examination of witnesses and documents.
(3) No court-fee shall be payable for preferring an appeal, to, or filing, exhibiting or recording any document in, or obtaining any document for a Tribunal.
10. The Service Tribunal in exercise of its power under the above provision may vary or modify an order challenged before it in an appeal but this discretionary power must be exercised in a judicious manner and in the spirit of policy of law. The power under section 7 of the N.-W.F.P. Service Tribunals Act, 1974 envisages that Tribunal may in its discretion in a suitable case in which the quantum of punishment does not commensurate with the charge, modify the penalty in the light of nature of charge but in the cases of extreme negligence and gross misconduct, the alteration of punishment of dismissal from service into reduction in time scale may not be justified as the retention of an irresponsible person in the sensitive service of Jail Department, would be against the policy of administrative law. There is no cavil to the proposition that Tribunal is empowered under the law to vary or modify the order of Departmental authority in suitable manner but interference in the quantum of punishment without showing reasonable ground that penalty awarded by the competent authority was harsh as compared to the nature of 'charge the exercise of discretion under section 7 of Service Tribunals Act, 1974 not proper. The quantum of punishment is not as such a question of law but the exercise of discretion in an improper- manner is definitely a legal question of immense importance as the wrong exercise of discretion or misuse of discretionary jurisdiction may defeat the purpose of law. The Jail Department is a very sensitive department and a slight negligence on the part of its employees, may bring a serious result, therefore, unnecessary laxity and leniency in the matter of punishment in such a case of gross negligence may offend the wisdom of law. We having analyzed the matter in the light of record and the facts and circumstances of the case, have found that all respondents being equally responsible for the incident of escape of prisoners from jail, would deserve equal treatment in the matter of punishment. The observation of the Tribunal that Muhammad Safdar, Gate-keeper, was not responsible for checking of visitors at the gate, was absolutely contrary to the law and facts of the case. The duty of a Gatekeeper is not only to maintain entry register rather he is also responsible for the body search of the visitors, therefore, his reinstatement in service was not justified.
11. In the light of foregoing discussion, we hold that the case of Ex-Assistant Superintendent Jail and two others (Head Warder and Warder) is not distinguishable to that of Taj Gohar, Ex- Superintendent Jail for the purpose of quantum of punishment and consequently we modify the judgment of the Tribunal and convert the penalty of reduction into three stages in time scale awarded to these respondents by the Tribunal into compulsory retirement. The order of reinstatement of Muhammad Sardar, Warder in service is set aside and he is also imposed the penalty of compulsory retirement. In consequence thereto, Civil Appeals Nos.113 to 116 of 2005 filed by Government of N.-W.F.P are partly allowed with no order as to costs. The connected Civil Petitions bearing Nos.665-P of 2003, 682-P of 2003 and 1803 of 2003 filed by Maqsood Ahmed, ex- Head Warder, Syed Jaffar Shah, ex-Assistant Superintendent Jail and Taj Gohar, ex-Superintendent Jail respectively stand dismissed.