' S. ABDUL JABBAR KHAN (CHAIRMAN).-Chowdhery Ghulam Dastgir, Assistant Superintendent Central Jail, Mianwali, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Inspector-General of Prisons, Punjab, Lahore and Home Secretary to Punjab Government as respondents.
2. By virtue of this appeal he has prayed that impugned, order dated 23rd June, 1982 as well as appellate order dated 19th November, 1983, passed by respondents Nos, 1 and 2 respectively, be set aside and the appellant be restored to his original position with back benefits.
3. Brief facts of the case are that the appellant was charge-sheeted by Mr. Shafqat Ullah Shah for act of omission and commissions as under :-
(i) That while attached to New Central Jail Multan, as Lines Officer he failed to maintain discipline amongst the members of warders guards. They were not performing their duties as required of them under the rules. Relieving and posting of warders as well as convict molitors had not been arried under military discipline. Thus. He had no control on .Therefore, acted in violation of the provisions of rules 1004 i), 627, 729 (iii) and 1034 (i) and (iii) which resulted into the escape of notorious undertrial prisoner Saadat Baluch on 18th April, 1981.
(ii) That he being Incharge of the Cell Block notified notorious and desperado Saadat Baluch, were required to make thorough search once daily and get searched twice daily by a trustworthy warder but he failed to do so and thus contravene the provisions of rules 723 (iii) and 559 of Pakistan Prisons Rules.
(iii) That he being Incharge of the Cell, where Saadat Baluch was confined, was required to see that no unauthorised interview should have been being arranged with the said notorious prisoner and in case of breach of such a discipline he should have brought the matter to the notice of the Superintendent Jail but he failed to do so which resulted into the escape of notified notorious and desperado Saadat Baluch. Thus, be acted in violation of the provisions of rules 548 and 1072 (ii) of Pakistan Prisons Rules.
(iv) That he had not been performing his duties as required of him under the Rules. He had been treating under trial prisoner Saadat Baluch with familiarity and was being allowed to move about freely beyond his place of confinement. Thus, he failed to comply with the provisions of rules 657, 1084, 1087 (ii) (b) and 1095 (f) of Pakistan Prisons Rules.
' This charge-sheet was accompanied by statement of allegations which is available on record.
The appellant filed a detailed explanation of the said charge-sheet. An enquiry in the affair was conducted by Ch. Riasat Ullah Khan, Superintendent Jail, Faisalabad and according to the Enquiry Officer the appellant was guilty of all the charges. A show-cause notice was issued in the name of the appellant. The competent authority keeping in view the mental and physical torture already suffered by the appellant,-has awarded major penalty of reduction to a lower stage in time scale by three steps for a period of two years. Against the penalty imposed upon him, the appellant filed representation before the Secretary to Government of the Punjab, Home Department, Lahore, which was considered and rejected on 19th November, 1983. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that the investigation report of the Police which necessitated the criminal proceedings against the appellant was rendered ineffective and meaningless with the withdrawal of the criminal case by the M. L. A. Zone A/Governor of the Punjab, after full satisfaction that the appellant was innocent, the same may not be made basis of the charge-sheet issued to the appellant.
' According to the learned counsel for the appellant the prosecution had failed to produce any witness against the appellant even the prisoner Saadat Baluch was examined and he also did not support the prosecution version. A grievance was made that while the appellant had been awarded major penalty. We accused who have been awarded minor penalty for the same commission and commissions. He has quoted an instance of Ch. Ghulam order, superintendent Jail, has been awarded censure, Syed Ashraf Ali Shah, Deputy Superintendent and Mr. Pervaiz Akhtar, Assistant Superintendent, were awarded minor penalty of stoppage of increment for two years. It has been further argued that although the learned authority has disagreed with the Enquiry Officer with regard to the establishment of certain allegations set out in the charge-sheet but he resorted to the award of major penalty which was neither fair nor just. It was further pleaded that the appellant remained under suspension for about 14 months which itself is a penalty rather a major penalty in terms of rule 1106 of the Pakistan Prisons Rules, therefore, further penalizing him with the major penalty would not be fair.
6. On the other hand learned District Attorney has adopted the comments filed by Mr. Shaukat Mahmood, Inspector-General of Prisons, and Additional Secretary, Home Department, Punjab, and has submitted that the appeal was time-barred and without any merit. While dealing with the instance of Ch. Ghulam Haider and two others, who have been visited with minor penalty, it was submitted that every case has got its own merits, therefore, the same cannot be treated as a precedent. According to the learned counsel for the appellant the impugned orders were perfectly legal, therefore, the appeal be dismissed.
7. We have given our anxious thought to the arguments advanced by the parties and find that the plea of time-barred is not tenable as the ultimate rejection of his representation before the Secretary Home took place on 19th November, 1983 (received by the appellant on 26th November, 1983), he filed appeal before this Tribunal on 26th December, 1983 which was within time. We have no hesitation to repel the argument of the learned counsel for the appellant that the appellant was once penalised and it was under the orders of M. L. A., Zone A/Governor of the Punjab that the criminal case was withdrawn and the appellant was proceeded departmentally.
8. With regard to the merits of the case, we after going through the entire Inquiry Report and the record of this case find that :-
(i) Saadat Baluch a notorious prisoner was kept un-locked almost whole day long against the rules.
(ii) The prisoner was allowed to cook his own food against the Rules.
(iii) The prisoner was allowed to move about any where freely inside the Jail. So much so that he had free assess to the main gate even, to see off his interviewers which practice provided him an opportunity to make good his escape through the main gate during bright daylight on 18th April, 1981.
(iv) Unauthorised and unrecorded interviews of undertrial prisoner Saadat Baluch and for indefinite period were being arranged against the rules.
(v) Searches of undertrial prisoner Saadat Baluch under his charge were not being conducted as required under the Rules. Dangerous prisoners are required to be searched thoroughly twice daily and occasionally at uncertain hours whereas the search was conducted as admitted by the appellant in the morning and in the evening and not at uncertain hours. This practice cilia he under- trial prisoner Saadat Baluch to receive on from his interviewers at the time of interview on 18th April, 1981 as no search was expected at that time.
(vi) The appellant was entrusted the duties of Lines Officer also. Under the standing instructions he was required to post trustworthy warders for the watch and ward of dangerous under-trial prisoner Saadat Baluch. Had he posted such type of Warders, the irregularity mentioned above should not have taken place and the escape in question averted.
' As Lines Officer the appellant failed to maintain discipline amongst the members of Warder guard.
Due to lack of administrative supervision the duty warders were not performing their duties as required under the Rules. Warder Rahim Bakhsh who was to turn up on duty at 15-00 hours came on duty at 15.45 hours when the alarm raised whereas Warder Abdul Haque left the Jail at 15-10 hours without having been relieved properly by Warder Rahim Bakhsh. Thus Hospital Area where under trial prisoner Saadat Baluch was confined remained unguarded for about 45 minutes which resulted into this escape.
' These are the main allegations from which the appellant cannot escape as he being Lines Officer, Incharge of dangerous cell, was fully responsible to keep vigilance over this desperado and it was by his in action and carelessness that such an unfortunate escape was made possible.
9. We are in full agreement with the learned District Attorney that the case of Messrs Ghulam Haider, Syed Ashraf Ali Shah and Pervaiz Akhtar. Cannot be taken as a precedent by reducing his penalty so visited upon him, as every case has got its own merits and it was within the prerogative of the competent authority who being fully conversant with the situation of each and every case, was the right person to visit penalties according to the judicial discretion.
10. In view of the above discussions, we do not find any merits in this appeal which is dismissed accordingly. There will be no order as to costs.