Muhammad Sharif petitioner in this case was a head const--able of police on I st of November 1966. The other petitioners, namely, Abdur Rehman, Khadim Hussain, Ali Akbar and Sardar Ali were Foot Constables attached to Gujranwala Police. On 1st of November 1966, they escorted about 43 under-trial prisoners from the District jail, Gujranwala, for production in different Courts under the supervision of an A. S. 1. The prisoners were lodged in the judicial lock-up, Gujranwala, but due to the alleged negligence of the petitioner, seven of the under trials succeeded in effecting their escape by cutting an iron bar of the latrine of the lock-up. An F. I. R. Was lodged on the same day by Iqbal Hussain A. S. I. Police Lines, Gujranwala. The petitioners were served with a charge-sheet on 6th of Decem--ber 1966, and the enquiry officer who was a Prosecuting Sub. Inspector submitted his report on 20th of December 1966. A notice was issued to the petitioners on 23rd of December 1966, to show cause why they should not be dismissed from service. The Superintendent of Police, Gujranwala, by order dated 31st of January 1967, dismissed the petitioners from service with effect from 1st of February 1967. They appealed to the D. I: G. Police who dismissed the appeal on 8th of June 1967, without affording them an opportunity of being heard. A revision petition before the Additional Inspector-General of Police was also dismissed on 30th of January 1968. A mercy petition before the Inspector---General of Police met the same fate on 30th of April 1968. The petitioners then filed the present writ petition.
2. During the pendency of the revision petition before the Additional Inspector-General of Police, it came to the notice of the department that since the allegations against the petitioner could have formed the subject-matter of prosecution under the criminal law, sanction of the District Magistrate to start departmental enquiry had not been obtained under rule I 6.36 0 the Punjab Police Rules. The District Magistrate was moved and he accorded sanction ex post facto to the departmental enquiry started against the petitioners.
3. During the preparation of the parawise comments in the present writ petition which was filed on 28th of August 1968, it also came to light that the D. I.-G. While disposing of the appeal had not given a personal hearing to the petitioners in view of what was said by-the High Court in the case of Abdur Rehman Pasha v. Chief Settlement Commissioner (PLD 1961 Lah. 12). The Inspector- General of Police thereupon advised the D. L-G., Lahore Range by order dated 3rd of June 1969, to afford the petitioners an opportunity to be heared personally, in connection with their appeals.
4. I sent for the files and I find that the notices were issued on, 17th of April 1970 to the petitioners to appear before the D. I.-G. On 24th of April 1970. There is no indication in these notices that they were being summoned for the hearing of the appeals: The notices are headed by the word "interview" and the purpose of the notice is not clear. It has also to be noted that Sharif Hussain petitioner could not be served as the report about him was that he had gone to some village in Tehsil Bhakkar, the name of which was not known. It does not appear from the file that any further effort was made to serve Sharif Hussain in respect of hearing of his appeal. The D. I.-G. Passed an order on, 27th of April 1970, saying that Sharif Hussain could not be present end that the other petitioners had appeared before him but were not able to urge anything in their favour. He therefore, again passed an order rejecting the appeals of the petitioners.
5. Mr: S. M. Anwar has raised two points. In the firs instance, he says that under rule 16.36 of the Police Rules, the sanction of the District Magistrate for starting a departmental enquiry was a condition precedent and since this condition had not been complied with the whole proceedings have vitiated. H further said that no sufficient opportunity, even at the subsequent stage, was given to the petitioners for arguing their appeals and, in any case, Sharif Hussain never appeared before the D. I.-G. And his case went by default.
6. Rule 16.36 of the Punjab Police Rules reads as follows:- "If the enquiry establishes negligence or connivance in an escape, thereby creating a presumption that an offence under sections 221, 222 and 223, Pakistan Penal Code, has been committed, the police officer concerned shall be prosecuted-- criminally, unless the District Magistrate on a reference by a Superintendent of Police decides, for reasons to be recorded that the case shall be dealt with departmentally. If the enquiry, establishes a breach of discipline or misconduct not amounting to an offence under any of the sections of the Pakistan Penal Code mentioned above, the case shall ordinarily be dealt with departmentally. The criminal prosecution under this rule of an upper subordinate shall not be undertaken without the sanction of the Deputy Inspector- General of Police."
It appears to me that this rule 16.36 lays down a departmental procedure as matter of liaison between the District Magistrate and the Superintendent of Police and the discretion is left to the Dis--trict Magistrate for deciding delinquent whether an officer may be criminally prosecuted or be dealt with departmentally. Chapter 16 of Police Rules deals with departmental enquiries etc. And there is no indication in any of the provisions of this Chapter that departmental enquiries against police officers are to be started by the sanction of the District Magistrate. Rule 16.36 is meant for the benefit of a delinquent officer when instead of being forced to face a criminal prosecution he may be departmentally dealt with if the District Magistrate so desires. This rule is also meant to keep the control of the District Magistrate over the police force and to find out whether there is any justification for taking a lenient view in respect of delinquent police officer and deal with him departmentally instead of arraigning him at the trial for the commission of the criminal offence. In my view, therefore, the sanction of the District Magistrate for initiating the departmental enquiry was not a condition precedent, and the proceedings are not vitiated on that account.
7. I may also refer here to rule 16.3 with some advantage. This rule lays down that under certain conditions even in spite of the acquittal of an offending officer he can be dealt with depart-- mentally. Looking at the whole scheme of Chapter 16 which deals with the punishment of the police officer etc. I find that the only natural meaning of rule 16.36 is the one that I have put on it. I may also add that the ex post facto sanction given by the District Magistrate in this respect would not have been of any avail to the State if I had held that rule 16.36 lays down a con--dition precedent because according to the general principle of law a condition precedent has to be complied with before the start of the proceedings. The contention of the learned counsel on this ground fails.
8. So far as the rejection of the appeals is concerned, I fin that the notices issued to the petitioners were vague and did not disclose the purpose for which they were sent. Sharif Hussain petitioner had not been served. They had appeared before a higher officer without knowing the purpose for which they had been served and there is some force in the arguments of the learned counsel for the petitioners that they had not the proper opportunity to argue their appeals. I would, therefore, accept this writ petition to the extent that the case against the petitioners shall restart from the stage where they filed their appeals before the D. I.-G. He shall give them an adequate opportunity to prepare their case and give them a proper hearing and decide the matter within two months. If Sharif Hussain petitioner is not served by ordinary means a notice shall be issued in an Urdu Daily intimating to him the date of re-hearing of his appeal. The writ petition is decided accordingly.