1. ' MUNAWAR ALI KHAN (CHAIRMAN).--The appellant Fida Hussain was a Police Constable (Buckle No, 1827) at Hyderabad, when he was dismissed from service by the order of Additional Superintendent of Police, Hyderabad, dated 16-6-1985. This appeal is directed against the said order.
2. ' The facts leading to the appellant's dismissal briefly stated are as follows. On 21-4-1984 the appellant was detailed for Sentry duty at Police Lock-up of City Police Station, Hyderabad. He took up the assignment at 2 a.m. Relieving the Constable Muharramali who was on duty from 10 p.m.
3. Until his relief. During the duty hours of the appellant a prisoner Ali Akbar Cahelo who was involved in a kidnapping case escaped from Cell No, 1 of the lock-up by cutting the rod of back side window of the Cell. At that time two other prisoners namely Dur Muhammad and Jam were said to be detained in the same Cell. When the incident came to light at about 4 a.m., the entire police guard of the lock-up were alerted. Some of them even ran in search of the escape prisoner but all in vain.
4. Accordingly the appellant was placed under suspension which was followed by service of charge- sheet on him. As the appellant's reply to the charge-sheet was not satisfactory, S.D.P.O., City was nominated as Enquiry Officer to hold a detailed enquiry about the incident. On transfer of Mr. Atta Muhammad Qureshi, the Enquiry Officer, his successor Mr. Muhammad Akbar took over the enquiry.
5. After he recorded statements of the witnesses he too was transferred. The next officer who succeeded him was Mr. Nazir Ahmad. He finalised the enquiry report holding the appellant guilty of the negligence. On the basis of his findings the Additional Superintendent of Police, Hyderabad with prior approval of the S.S.P. Hyderabad passed the impugned order, dismissing the appellant from service. The appellant preferred departmental appeal to the D.I.-G. Police, Hyderabad Range but the same was rejected by order dated 2-9-1985. His Revision petition made to the I.-G.P. Also did not succeed vide I.-G.P.'s order dated 16-11-1987. Having failed to obtain relief at departmental level, the appellant has filed the present appeal.
6. ' Mr. Naimatullah Qureshi submitted his arguments on behalf of the appellant and Mr. Abdul Sayeed Khan Ghori, Government-counsel argued the case for official respondents. With their assistance we also went through the relevant documents available on record.
7. ' The charge against the appellant was that on 21-4-1984 while he was on duty as Sentry at Police lock-up of City Police Hyderabad from 2 a.m. Onward, one prisoner by name; Ali Akbar Cahelo escaped from Cell No, 1 of the lock-up by cutting the rod of the back side window of the Cell.
8. Refuting the said charge vehemently, the learned counsel for the appellant contended that since the appellant's duty was on front side of the lock-up, it was not possible for him to detect or check in time the unfortunate happening which admittedly took place on back side of the Cell. He further argued that back side of the lock-up was usually looked after by separate police guard posted for the purpose but on the night of incident no such guard was placed there. The learned counsel further submitted that H.C. Muhammad Tayab who was at the head of the police guard on the night of incident was equally responsible but somehow after his dismissal from service he was re- instated. The learned counsel, therefore, complained about the discrimination in the case of the appellant. He also raised some legal points in course of his arguments. According to him a copy of enquiry report was not supplied to the appellant and further that enquiry report was written by the officer other than the one who has actually held the enquiry.
9. ' First of all let us examine the appellant's own version about the incident. In this connection reference may be made to para. 3 under the caption "Facts" in his memo. Of appeal. It reads as under:- "That on 21-4-1984 the appellant was detained on duty as Santry on City Police Lock-up of P.S. Hyderabad, along with Head Constable Muhammad Tayab and other police constables, when on that night at about 3 a.m. Mid-night, Akbar Cahelo arrested in some kidnapping case, detained at police lock-up, made his escape from Cell No, 1 of City lockup by cutting the rod of window of the Cell behind the lock-up in presence of the prisoners namely Dur Muhammad and Jam. Hence entire police guard including the appellant and Head Constable Muhammad Tayab were placed under suspension."
10. ' In the above statement, the appellant has frankly admitted that on the relevant date he was on Sentry duty at the Police Lock-up of the City Police, Hyderabad at 2 a.m. When prisoner All Akbar escaped from Cell No, 1 of the lock-up by cutting the rod of the window on the back side of the Cell.
11. His admission finds support from the statements of the witnesses recorded in course of the enquiry. They are P.C. Muhammad Iqbal, P.C. Hassan Mustafa, P.C. Muharram Ali, S.I.P. Liaqat Ali, A.S.I.
12. Tahwar Khan and prisoner Ali Ahmad. It appears from evidence of Muhammad Iqbal that he and P.C. Ghulam Mustafa were put on picket duty at Masjid on the night of incident, Ghulam Mustafa from 10 p.m. To 2 a.m. And Muhammad Iqbal from 2 a.m. Onward. This is confirmed by S.I.P. Liaqat Ali who further states that as per sanctioned strength, for the lockup one Head Constable and one constable were already working there and for picket duty additional guard was also sent.
13. According to police constable Hassan Mustafa and Muhammad Ali, they were assigned Sentry duty at the lock-up on the night of incident, the former from 6 p.m. To 10 p.m. And the latter from 10 p.m. To 2 a.m. It is also in evidence of Muharram All that he was relieved at 2 a.m. By appellant Fida Hussain.
14. ' It would appear that the appellant was given opportunity to cross-examine the witnesses examined in course of the enquiry and he had actually cross-examined some of them. As stated above, the witnesses have described the factual position which is even admitted by the appellant himself. It is clear from their evidence that only one Sentry was posted at the lock-up by turn. Of course H.C. Muhammad Tayab was also at the head of the security guard on the night of incident.
15. Since no separate guard was detained for rear side of the lock-up, the only presumption would be that it was the appellant's duty to keep watch on both sides of the lock-up. There is no evidence to the effect that the Sentry's duty was confined only to front side of the lock-up and separate guard was to be posted at the back side. It is appellant's own admission that the prisoner's escape was made through the window after cutting the rod thereof. If the appellant had been vigilant, he would have surely heard the cutting sound. In any case he could not wriggle out from his commitment to duty on the excuse that he was all alone, and that he was not in a position to keep guard at the back side of the Cell. It is clear from the evidence of S.I.P. Liaqat All that sanctioned strength of the lock-up was one head constable and one Sentry and two constables were detailed for picket duty to be performed by turn. The latter had obviously static duty to guard over the arms and ammunition at the Masjid point as has been discussed above.
16. As for the argument as regards the reinstatement of H.C. Muhammad Tayab, we are of the view that merely because he was re-instated in service is no reason for the appellant to claim his own reinstatement. The case of Muhammad Tayab was distinguishable inasmuch as that he being in command of the guard, was in general charge of the lock-up whereas the appellant was assigned the specific duty of keeping guard over the lock-up as Sentry. Assuming that the argument of the learned counsel for the appellant was correct to the extent that the above H.C. Was equally responsible. In other words the learned counsel meant to say that the reinstatement of the said H.C. Was wrong On the strength of this argument the appellant could not be excused and re- instated in service, because two wrongs cannot make one right.
17. ' Although the appellant's learned counsel stated in his arguments that enquiry report was not supplied to the appellant, no such plea has been taken by the appellant in his memo Of appeal. As such there is no corresponding reply in the written statement. Accordingly it was not proved that enquiry report was not supplied to the appellant. However, the impugned order clearly shows that not only final show-cause notice was issued to the appellant to which he had submitted his explanation but also he was personally heard.
18. ' In reply to the argument of the appellant's learned counsel that the enquiry report was not written by the Enquiry Officer who had recorded statements of the witnesses and further that the officer who submitted the report was not nominated as Enquiry Officer, the stand taken on behalf of the respondents is that S.D.P.O. City was nominated as Enquiry Officer by designation and as such there was no legal objection to finalization of the enquiry report by his successor. Moreover, we have not come across any provision in the Police Rules which requires the enquiry proceedings to start de novo with change of the Enquiry Officer due to his transfer elsewhere. Accordingly the argument was immaterial and would not affect the legality of the case in any manner.
19. ' For above reasons we find no merit in the appeal which is, therefore, dismissed with no order as to costs.