This order shall dispose of the Appeal No, 9 of 1988 of Gul Muhammad Khaskhali and Appeal No, 10 of 1988, of Muhammad Ismail Malik both Police Constables of the Police Establishment who have been dismissed from service by the S.P. Nawabshah.
2. Briefly narrating the facts, which are essentially same for this case, P.C. Gul Muhammad Khaskhali and Muhammad Ismail Malik were assigned with the police force for escorting 7 undertrial prisoners, who were involved in cases of dacoity and murder, from Sub-jail Naushero Feroze to Nawabshah for being produced before the Sessions Court.
3. While returning from Nawabshah to Naushero Feroze the police party which comprised of one Head Constable Abdul Hamid and three Constables Gul Muhammad, Muhammad Ismail Malik and P.C. Ghulam Abbas and the WTP's alighted at Padidan Railway Station. Since they had to go to Sub- Jail Naushero Feroze, the police party and the undertrial prisoners hired a Datsun Pickup for travelling to Naushero Feroze.
4. It is the plea of the appellants that when the Datsun reached Punjabi village the undertrial prisoners attacked the police party and succeeded in overpowering the members of the escort party, snatched away their rifles and escaped. A case was registered against all the members of the police party and this case was disposed of and decided by the FCM Naushero Feroze by his judgment dated 10-5-1987, who acquitted all the accused giving them benefit of doubt.
5. On the departmental side a departmental enquiry was ordered against the police party and the appellants were issued a charge-sheet alongwith a statement of allegations which the appellants plead to have denied. The departmental enquiry was held by SDPO Saddar Nawabshah who conducted the proceedings and recommended major penalty of dismissal from service for the appellants. The appellants were supplied copy of the enquiry report and a final show-cause notice was issued to them to which the appellants replied. The Superintendent of Police, Nawabshah, agreeing with the findings and recommendation of the Enquiry Officer dismissed both appellants from service and passed the said order on 8-11-1984. The appellants preferred appeal to the Deputy Inspector-General of Police, Sukkur Range who rejected their appeals. The appellants preferred appeal/mercy petition/review to the I.-G. Police Sindh, who rejected their appeals, the appellants have now reached this Tribunal for relief.
6. In the written statement filed on behalf of the official respondents it is stated that the police party had committed an act of serious negligence and cowardice. It is further accused that the Police party had hired a Datsun with a pre-plan to allow the undertrial prisoners to escape. It is further alleged that not only the prisoners were allowed to escape, but rifles of the escort party were also handed over in silver plate. It is further averred in the written statement that full opportunity of defence was provided to the accused Police officials that is, they were properly charge-sheeted, a proper enquiry was conducted against them in accordance with the appropriate Police Rules. The enquiry officer found them guilty of the charges of negligence and cowardice and recommended a major penalty of dismissal. In the opening remarks of the written statement the respondent, have seriously objected to the appeal and termed these as not maintainable and barred by law.
7. These appeals have been difficult ones, we shall be failing in our duty if we do not appreciate the very valuable assistance provided by Mr. Khan Muhammad Mashori the Advocate for the appellants, Syed Zawar Hussain Jafferi AA.-G. Sindh at Sukkur, and P.S.I. Mr. Muhammad Anwar who had argued the case at length for four hours and helped the Tribunal, to reach fair and just conclusions.
7-A. This set of appeals is indeed peculiar and we shall treat these so. As such we shall discuss the merits of both the appeals before we enter into the questions of law for the reasons that shall become more and more obvious as we get into the depth of appeals. We reiterate our earlier observation that the cases of the appellants are almost identical and their disposal will require a single decision.
8. We shall now enter the merits of the appeals. Since an enquiry has been conducted we shall critically examine the proceedings of the enquiry to reach just conclusions. Also we shall read through carefully the judgment of the Civil Judge and 1st Class Magistrate Naushero Feroze of 10- 5-1987 by which all the accused have been given the benefit of doubt. First we read page No, 3, of the departmental proceedings. On this page the enquiry officer has laid down some points for determination, these are 8 in number. We shall also examine the findings of the enquiry officer, critically. We shall reproduce these points for determination in seriatim and also the findings of the learned enquiry officer for comparison: (1)Whether the UTP's were legally handed over to them?
(2)Whether adequate and proper guard was provided for escorting the prisoners?
(3)Whether proper handcuffs were applied to the escaped prisoners?
(4)Whether relatives and friends of the escaped prisoners were allowed to interview and to accompany the escaped prisoners from N/Feroze to Nawabshah and back?
(5)Why did police party engage private Datsun for going to N/Feroze from Padidan instead of travelling in bus?
(6)Was the defaulter armed with rifle or not?
(7)What role was played by defaulter, and police party in not firing on the escaped prisoners?
(8) Whether the defaulter and police party showed cowardice and facilitated in the escape of prisoners?
The findings of the learned enquiry officer to points Nos, 1, 2 and 3 are also reproduced for purposes of analysis: (1)The escaped prisoners were legally handed over to the police party alongwith the production warrants for producing them before Sessions Judge, Nawabshah on 10-4-1984 by the Jailer N/Feroze.
(2)The undertrial prisoners to be produced were 7 in number who were dangerous type. 6 escaped prisoners were involved in dacoity case and the other in murder case. The guard of 1/3rd for escating the 7 UTPs from N/Feroze to Nawabshah and back was inadequate. The act of negligence on the part of defaulter is thus proved in this item.
(3)The defaulter and police party had taken only 4 handcuffs for 7 prisoners who were dangerous.
It shows that the escaped prisoners were not properly handcuffed and their one hand was free from handcuff. Being dangerous prisoners involved in dacoity cases they were not barfettered too which has come on record from the statement of Jailer in the cross-examination by the undersigned. It was a serious omission on the part of the defaulter and police party. Thus, it is proved that the UTPs were not properly handcuffed and barfettered which proves negligence and act of misconduct on the part of defaulter and police party.
If we summarize these three findings then the summary would read:-- "They were legally handed over. They were seven dangerous prisoners involved in cases of murder and dacoity. There were only 4 handcuffs and they were not barfettered. Guard of 1/3rd was enough."
With all our regard for the learned Enquiry Officer, we do not agree with this summary. We have gone through Pakistan Prison Rules. Last paragraph of the Rule 173 states that "If prisoner or prisoners are desperate or dangerous the Superintendent of Police furnishing the escort may increase the strength at his discretion". Rules 174 and 175 are also reproduced for ready reference and completeness.
Rule 174.--Male prisoners except A class prisoners and political detenus shall be handcuffed before removal from prision.
Rule 175.--(I) Prisoners admitted to Class A or Class shall not wear fetters when travelling by rail or road unless the Superintendent of Police for reasons to be recorded in writing so requires.
(II) Prisoners confined for offences punishable under sections 224, 235-B, 302, 303, 304, 307, 308, 392 to 402 of the Pakistan Penal Code, 1960, shall while travelling by rail or road wear fetters if the Superintendent of Police in the case of an undertrial prisoner and the Superintendent of Jail, in the case of a convicted prisoner for reasons to be recorded in writing considers it necessary.
(III) Condemned prisoners and escaped prisoners shall wear fetters on transfer.
If we read these Rules and properly interpret their implications we simply find the following: There were 7 dangerous and desperate prisoners involved in the cases of dacoity and murder, they were to be provided with adequate escort by the senior Police officials entrusted with said duty. They were to be handcuffed properly and they were to be taken in barfetters. We cannot consider police party responsible for this serious negligence alone and alone. We also dispute the view taken by the learned Enquiry Officer that the prisoners were legally handed over to the police party.
Obviously they were 'Not' as long as there were no additional escort available, as long as they were not handcuffed properly, as long as they were not properly barfettered. We are of the view that it was the joint responsibility of the Jailer Naushero Feroze and the senior police officials responsible for ordering the transfer of the prisoners and providing escort to make sure that the desperate prisoners were properly handed over and safely escorted from sub-jail Naushero Feroze to the Sessions Court Nawabshah and back to the jail. This was not the single responsibility of an inadequate police party.
9. At this stage it would be helpful to glance over the judgment of the FCM N/Feroze by which he has acquitted all the accused including the appellants on benefit of doubt. From this judgment we find that there are only two eyewitnesses to this happening of escape of the prisoners or anything which happened a little prior to escape. These are, Datsun Driver Murid Hussain and one another Sahib Tagar who was the 7th prisoner and had refused to escape alongwith other escaped prisoners when invited to do so. Murid Hussain Driver did not appear in the Court of FCM in spite of notice and as such statement of Murid Hussain Driver could not be recorded.
10.The second prosecution witness Sahib Tagar has recorded his statement in Court and has undergone cross-examination. He is therefore, only material witness, on whose testimony and cross-examination the learned Civil Judge and FCM has based his decision. We shall reproduce a part of the body of the judgment.
"In cross-examination he stated that the Police party, accused had fought with the culprits and attempted to catch them and the police party received injuries and they were bleeding from the injuries, he has stated that the police had enquired from him but his statement was not recorded at that time in his presence nor it was read over to him."
The learned Judge proceeds to write in his judgment: "In this case the P.W. 2 Sahib Tagar who is also eye-witness was also accused in the other case, has clearly stated that the present accused party had fought with those culprits and they were not negligent in their duty."
11.We shall now return to page No, 5, of the enquiry report in which the learned Inquiry Officer has observed that "there was a preplan to make the prisoners escape and that the Datsun was hired by the relatives of the prisoners and that the police party was involved in a conspiracy of the escape." The Inquiry Officer has placed reliance on Murid Hussain Driver and Sahib Tagar the prisoner, who did not escape.
12.If we compare these two findings one of the Inquiry Officer and other that of the learned Civil Judge and FCM, Naushero Feroze they do not bear similarity, for the simple reason that Murid Hussain Driver has not recorded any statement either at the Court or before the Enquiry Officer. The record of the enquiry which was produced before us during the proceedings of the Tribunal does not bear and include the statements of either Driver Murid Hussain or Sahib Dino Tagar. We therefore conclude that Murid Hussain has not recorded any statement at any place, either at the enquiry officer or at the Court. We therefore have no option but to place reliance on the only statement of Sahib Tagar and obviously for the same observation the Civil Judge and FCM has given his judgment based on the only available material evidence which was recorded by Sahib Tagar. Though he was a prisoner, he never tried to escape with the other prisoners and returned to jail. He had character and as such his evidence was regarded trustworthy by the learned Court and for same reasons we shall believe it to be true.
13.The findings of the learned enquiry officer in paras. 5, 6, 7 and 8 are not based on any such material evidence which could influence us to believe that there was a pre-plan to which these appellants constables were party, we do however, feel that there could be a pre-plan of which the appellants were not conscious, and had no definite prior knowledge. On the contrary there is sufficient evidence for us to believe that the appellants .had fought with the prisoners who were trying to escape and had been hit in head by hard blunt substance as is also evident from medical certificates attached with the appeal. (Exh. K).
14. We now return to the dismissal order and observe in the order dated 8-11-1984, that the reply of the appellants to the final show-cause notice was sent to PDSP Nawabshah who had also furnished his comments. It is helpful if we read the relevant portion of those comments which are given on page No, 3, of the dismissal order.
"In view of the findings of the Enquiry Officer/SDPO/Saddar, Nawabshah there is contributory negligence of Superintendent SubJail/Jailer of Sub-Jail Naushero Feroze. Further, there are extenuating circumtances to take a lenient view hence he recommended that the defaulter may be awarded penalty of reduction in pay equivalent to two annual increments."
These are the same comments which are also reflected in the findings of the Civil Judge, we tend to agree partly with the comments of the PDSP who has pointed to "extenuating circumstances".
15. If we now consolidate our arguments in entirety read together with the judgment of Court, the enquiry report of the departmental proceedings, and the comments of the PDSP Naswabshah we shall come to following conclusions: (i)That prisoners were not properly/legally handed over to the appellants (Police Party-fix Responsibility).
(ii)That adequate and necessary police escort was not provided to the police party for escorting prisoners to Session Court Nawabshah and back (Fix Responsibility).
(iii)That material evidence shows that the appellants (police party) had fought against the escaping prisoners and offered resistance (Correct or not).
(iv)There could be a pre-plan to make the prisoners to escape of which the appellants were not aware and were not a party to such a pre-plan if such did exist (why did they fight them?).
16. Having circumscribed the conclusions in respect of facts, we now advert to deal with the question of law, we shall deal with the cases of the both appeals separately. We shall take the case of P.C. Gul Muhammad Khaskheli first. It would appear from the files of Gul Muhammad Khaskheli and the record produced, at this Tribunal in his respect that he was dismissed on 8-11-1984, he filed his departmental appeal against the dismissal from service to the Deputy Inspector-General of Police, Sukkur Range on 21-11-1984, in accordance with the rule 16.22(1) of the Revised Police Rules (RPR). His appeal was rejected by the Deputy Inspector-General of Police, Sukkur Range, on 8-11- 1985 (Annexure `J') and he was informed accordingly through the S.P. Nawabshah. Against this rejection order on some date (not mentioned in his application) in month of April 1985, he filed a revision to Inspector-General of Police Sindh, in accordance with the Rule 16.24 of the (RPR) which allows the revision on grounds of 'material irregularity' in the proceedings. With our best efforts, we have been able to lay hands on a document, extract of which is reproduced as under: Read: (1) Appeal from ex-Const./24 Gul Muhammad of Nawabshah District.
(2) D.P. File and S/Book of appellant, furnished by DTGP/Sukkur vide letter No, E.II/1911, dated 9-9- 1985.
The above appeal has been considered and filed.
Sd/- Inspector-General of Police, Sindh.
No, 13732-35/E.II.Karachi dated the 23-11-1985.
From above order it would appear that he had applied for revision which was considered and filed, by the Inspector-General of Police on 28-11-1985. Let us have no misunderstanding. This revision had nothing to do with limitation time for appeal at the Sindh Service Tribunal. The right of appeal accrued to him when his appeal was rejected by the D.I.-G. Police, Sukkur Range i,e, on 8-1-1985.
We now reproduce subsection (2) of proviso 16.22 of the RPR. It reads as under:-- "There shall be one appeal from the original order and the order of the appellate authority shall be final."
It would further appear to us that he submitted one more application which we are not able to trace. We reproduce the reply of the I.-G. Police Sindh.
Read.(1)Appeal/Revision petition/Mercy petition from DR-PC No, 24 Gul Muhammad Khashkheli regarding reinstatement in service.
(2) Comments, D.P. File and other relevant papers furnished by D.I.-G. of Police, Sukkur vide this memo./letter No, P.II/17027 dated 5-9-1987.
The request of the petitioner has been considered and rejected.
Sd/- (Manzoor Mohsin)
Addl. Inspector-General of Police, Karachi. No, 406-07/D.III, Karachi, dated 6-1-1988.
We are very clear that his last appeal/revision/mercy petition is clearly in the nature of pure mercy petition and any order on the mercy petition is not in nature of order on original appeal and shall have to be ignored. In fact the appellant should have approached the Sindh Service Tribunal after he consumed his right of appeal, with the Deputy Inspector-General of Police, Sukkur Range in accordance with Rules 16.22(1) and (2) and such right accrued to him on 8-1-1985. It is with utmost regret that we observe that his appeal is barred by law and is accordingly dismissed on this purely technical ground.
17. Now coming to the case of P.C. Muhammad Ismail Malik we find that he was dismissed by the S.P. on 8-11-1984, and he filed his appeal to the Deputy Inspector-General obviously in accordance with sub-rules (1) and (2) of the Rule 22 of Chapter 16 the RPR. His appeal was rejected on 8-1-1985, and he was informed accordingly. He appears to have filed an appeal/revision/mercy petition which we reproduce as under:-- Read:- (1) Appeal/Revision petition/Mercy petition from Ex-PC 364 ASI/SI Muhammad Ismail Malik regarding reinstatement in service.
(2) Comments D.P. file and other relevant papers furnished by SP/SSP/DIG of Police Sukkur vide his memo./letter No, 17030 dated 5-9-1987.
The request of the petitioner has been considered and rejected.
Sd/- (Manzoor Mohsin)
Addl. Inspector-General of Police, Karachi. No, 406-07/D. III, Karachi, dated 6-1-1988.
' We regret that this appeal/revision/mercy petition is strictly in nature of the mercy petition and it was purely an option of the department to H accept it or not. In fact the right of the appeal occured to the PC Muhammad Ismail on 8-1-1985, when his appeal was first rejected by the Deputy Inspector-General of Police, Sukkur Range. It is with regret that we dismiss this appeal as being hit by limitation and barred by law on purely technical grounds also.
Before parting let us make observations and recommendations.
1. These two appeals are being dismissed on purely technical grounds and not on the merits of the cases. Had we not been barred by law we would have accepted and allowed these appeals on facts and merits of appeals. The Tribunal, therefore, deems it necessary, in the larger interest of administration of justice to recommend to the Home Department that in view of what has been said above, department may in their own discretion reinstate appellants in their services".
2. Initiate a full dress enquiry in this incident of escape of prisoners in light of conclusions reached in Para. No, 14 of this order.