JUDGMENTJUSTICE (RTD) MUNAWAR ALI KHAN (CHAIRMAN). Three appeals; namely, Appeal No.39/1984 filed by Sabir Hussain, Appeal No.42/1984 filed by Younis Masih and Appeal No.43/1984 filed by Qamaruddin Abbasi, which relate to the same event involving the escape of some dangerous prisoners from the Central Jail Sukur are being disposed by this common judgment. The said appellants were respectively holding the posts of Deputy Superintendents, Assistant Superintendent and Superintendent at the Sukur Jail on 313.1983 when at about 7 p.m. As many as seven desperate under trial prisoners namely Paroo Chandio, Ali Gohar Chandio, Jinsar, Nadir, Rano, Ghous Bux and Ghulam Omar, managed to escape from the Jail. Immediately after the incident the SDM Rohri, made preliminary enquiry in order to ascertain the circumstances leading to the escape of one prisoners. Amongst other staff of the Jail, the appellants were placed under suspension. Subsequently they were served with the order dated bth June, 1983 accompanied by statement of allegations containing therein the charges against them. The appellants submitted their reply. After considering their explanation and giving them personal hearing. Chief Secretary to Government of Sind, by his order dated 19th January, 1984 imposed upon the appellants major penalty of compulsory retirement. Unsatisfied with the said order they preferred departmental appeal and after waiting for statutory period of 90 days the appellants filed the present appeals.
2. We have heard elaborate arguments of the learned counsel for the parties. Mr. Naimatullah Qurcshi argued the case for the appellants and Mr. Imdad Hussain Qazi, Govt, counsel submitted his arguments on behalf of the official respondents. With assistance of the learned counsel we were also taken through the relevant record.
3. It is clear from the Show-cause-notice served on the appellants that no enquiry as envisaged by the Sind Civil Servants (Efficiency and Discipline) Rules, 1973 (hereinafter referred to as the said rules) was held against them. Admittedly no other documents excepting the Show-cause- notice and statement of allegations was supplied to the appellants. It is also not denied that despite the appellants' written demand they were refused any access to the record of the preliminary enquiry.
As provided in sub-rule (4) of rule 5 of the said rules punishment can be awarded to the accused civil servant only when the charges levelled against him are proved. According to the said sub-rule, if no enquiry is held through enquiry officer or enquiry commmittee, the Authorized Officer, on receipt of the explanation of the accused official, has to determine if the charges made against him are proved. In the instant case the Authorized Officer had obviously no other material/evidence available to him excepting the appellants' own explanation for determining if the charges were proved or not against them. Anything that transpired in course of the preliminary enquiry could not be used against the appellants, for two fold reasons; firstly the said enquiry was not held under the said rules, secondly the appellants were not furnished copy of any document which formed part of the record, of the said enquiry. Accordingly we would proceed to examine the explanations furnished by the appellants to sec how far they have helped the Authorised Officer in arriving at the conclusion that the charges made against the appellants were proved against them.
We would first take up the case of Mr. Younis Masih, Ex-Assistant Superintendent. The Show-cause- notice served on the said appellant contains the following charges; "1. That as Assistant Superintendent - Incharge of the Central Prison Sukur on '31.3.1983 from 7.00 a.m. To 6.45 p.m. Although jail was not closed officially, yet he accepted a closing slip from Head Warder Yar Muhammad showing physical lock up if in all 627 prisoners knowing that keys from other sections/circles had not been received back and without proper verification and search of the total number of prisoners be conducted handing over, and taking over operation with Assistant Superintendent Abdul Mabood at 6.45 p.m. On 31.3.1983 in violation of Rule 1045.
2. That after hearing the gun shots, instead of investigating the matter and raising alarm he ran away to gate No.111 which shows wilfull negligence inefficiency, misconduct, and or cowardice on his part resulting in the escape of seven hardened criminal namely Paroo Chandio, Ali Gohar Chandio, Jinsar, Nadir, Rano, Ghous Bux and Ghulam Omar.
3. That as Incharge - Duty Officer of the Sukur Central Prison on 31.3.1983 at about evening time he failed to conduct search of the prisoners and buildings of the prison in flagrant violation of Rule 1045(a) providing opportunity to the dangerous prisoners (escaped to cut Neem trees to improvise a ladder used in escape."
4. That as a result of his failure to comply with mandatory provisions of Prison Rules and provisions of Prisons Act, 1894 etc. Mentioned herein with ulterior motives, mal-administration and indiscipline prevailed in the Central Prison Sukur causing escape of seven hardened criminals namely Paroo Chandio, Ali Gohar Chandio, Jinsar, Nadir, Rano. Ghous Bux and Ghulam Omer on 31.3.1983 at about 7.00 p.m. Which amounts to a conduct prejudicial to good order of service discipline, inefficiency and corruption.
4. The stand taken by the appellant Younis Masih in his reply vis-a- vis the above charges is that in view of his transfer from Central Jail Sukur to Central Prison Hyderabad under the order of I.G. Prison dated 14.3.1983, he was relieved of the duties of the specified Beat/Section of the Jail from 21.3.1983 and after being so relieved he was awaiting arrival of his substitute but in the meantime he was acting as Duty Officer by turn. In the capacity of the Duty Officer his turn for duties was from 30.3.1983 (7 p.m.) to 31.3.1983 (6.45 p.m.). The appellant's above plea has been verified from two orders: one of the I.G. Prison dated 14.3.1983 and another of Superintendent Jail, Sukur dated 20.3.1983. The first order clearly shows that appellant Younis Masih was transferred from Sukur Prison to Hyderabad Prison. The second order indicates that consequent upon his transfer to Hyderabad Jail the appellant was relieved of the duties allocated to him by earlier order dated 24.11.1982. Thus the omission of his name from latest order referred to above, lends support to the appellant's plea that on re-allocation of the duties by the said order he was not assigned the charge of any specified Beat/Section. The written statement filed on behalf of the official respondents further shows that on the date of incident i.e. 31.3.1983 the appellant Younis Masih was on duty until 6.45 p.m. When he handed over the charge to Abdul Mabood, Assistant Superintendent. Thus his duty, whatever it was, ended before the escape of the prisoners which took place at about 7 p.m.
However the first charge against this appellant is that he conducted the handing over and taking over operation with Abdul Mabood, Assistant Superintendent without physical verification and search of the total number of prisoners. This charge is denied by the appellant whose reply is in the following words:"Thereafter Mr. Abdul Mabood, Assistant Superintendent signed the lock up register in token of having taken over the charge of duty officer correctly without raising any objection because at that time 627 prisoners were present and locked up and till that time there was no report of any'untoward incident in the Jail."
5. On considering the appellant's reply to the above charge, we are of the view that the charge has no force. Admittedly before the occurrence the appellant had already handed over the charge of his duties to his successor namely Abdul Mabood. Since no objection was raised by the said Abdul Mabood in taking over the charge from the appellant it proved that until then everything was in order. Even otherwise, as no enquiry was held, the Department did not produce any evidence to prove the charge particularly when the appellant had vehemently denied it. Accordingly we hold that the above charge was not proved against the appellant Younis Masih.
6. The charge at serial No.3 in the Show-cause-notice in more or less the same as that slated at serial No.1. Nevertheless we are satisfied with the reply given by the appellant in response to the charge No.3. He has correctly pointed out that as required by the relevant rules it was the duty of the Assistant Superintendent. Inchargc of the specified Beat/Section to conduct search of prisoners and buildings etc. Since the appellant was not placed in charge of the specified Beat/Section of the Prison on the day of incident he could not be held responsible.
7. As per charge No.2 in the Show-cause-notice, the appellant on hearing the gun shots ran away to gate No.3 instead of investigating the matter and raising alarm and thereby showed his wilful negligence and inefficiency and cowardice. We have already held that when the escape actually took place the appellant was no longer on duty as he had already handed over his charge to his successor without any objection from him and as such he was under no obligation to do any particular act. Nevertheless the charge itself is too vague as it holds the appellant responsible merely for his failure to make the investigation in the matter and raise alarm. Nonetheless the appellant's reply to the charge seems satisfactory as he did all whatever he could do in the circumstances of the case. In any case in absence of tangible evidence produced by the Department in support of the charge it is difficult to prefer the version given in the Show-cause- notice to what has been stated by the appellant in his reply.
8. The fourth and the last charge against the said appellant does not refer to any specific act of omission or commission on his part. All that it shows is that as a result of appellant's failure to comply with mandatroy provisions of Prison Rules and Provisions of Prison Act 1894, the escape of the prisoners took place.. As has already been pointed out that since no enquiry was held the department was not able to prove how and in what manner the appellant failed to make non- compliance of the legal provisions. The charge is vague on face of it. It appears to us that inspite of the fact that the appellant was not on duty at the lime of incident, he did what he could do in the circumstances of the case.
For the above reasons, we hold that the charges levelled against the appellant Younis Masih fall short of proof and as such his appeal Is allowed with no order as to costs and consequently the impugned order is set aside.
9. Coming to the case, of Sabir. Hussain, the former Deputy Superintendent of Central Jail Sukur, it is found that the Show-cause-notice served on him contained as many as nine charges against him.
The charge No.1 is as follows: "1. That as the Deputy Superintendent Central Prison Sukur, he being Chief Executive of the. Prison, failed to discharge his responsibilities of making over charge of the Prison and Prisoners to the next Senior Official peresenl before leaving for any purpose on 31.3.1983 at about 6:20 p.m. i.e. Before prison lock up time and left the prison without permission, in violation of Rule 1007 of Pakistan Prison Rules."
10. Although the appellant has denied the charge, yet it is admitted by him that he left at about 6:20 p.m. Before the process of locking up was completed. He has explained that his departure, a few minutes earlier than the completion of the process was due to his.Sudden indisposition.
According to him, he asked Mr.Noor Nabi Agha, Assistant Superintendent, who was the senior most officer available, to lookaftcr the remaining process of the lock up. He has further added that as soon as the escape of prisoners took place he rushed to the Jail and joined the search party in its operations. After giving due consideration to his reply wc regret that we are not impressed by it. It is his own admission that he abandoned his duties while the process of lock-up was still is progress. If his sickness was so serious that he could not stay back a few minutes longer to see the completion of the process of locking up, surely it would not be possible for him to rush back to the Jail on bearing about the escape of the prisoners. Conversely if his ailment so trivial that it did not deter him from returning to the jail and joining the arduous job of search of the prisoners, his departure before the completion of the lock-up process was nothing but an act of gross negligence and entirely unjustified. Moreover he has produced nothing in black and white to support his assertion that he entrusted the remaining work of locking up process to Mr. Noor Nabi Agha.
11. Apart from above it is admitted by the appellant that his name was missing from the gale- register allhoutih he claimed to have returned tn the jail at 945 p.m. For ascertaining the correct number and names of prisoners who had made escape on that date. His explanation for such omission of his name from the gate register is that he did not enter the jail after hearing the alarm but rather remained busy outside the gate to organize the search party etc. Therefore, he has added, the time of his entry inside the gate was not shown in the gat eregister. Nonetheless he admits that as per rules whenever any person enters the gate the time of his entry along with his name is written in the gate-register. It seems to us that the omission of appellcnt's name from the gate-register goes to prove that he had never entered the jail gate. His explanation that he was busy outside it was clearly uncceptable. It is true that the appellant's residence situated within the premises of the prison and therefore falls within the definition of the prison. But there is no proof that he was available even at his residence. Assuming that his version is correct that he was present at his residence, still the fact remained that he left the process of locking up incomplete.
Since such a serious incident in which seven dangerous undertrial prisoners escaped from the jail took place during the period of his absence, the appellant could not take shelter behind technicalities that he was not absent from the jail within the legal meaning of prison. Even his brief absence from the spot was incxouseable. By leaving the process of locking up unfinished on the pretext of minor indisposition the appellant obviously exhibited his callousn and negligence unbecoming the officer of his status and grade. Accodingly we hold that the said charge was proved against the appellant from his own reply.
The second charge against the appellant is as follows; "That on 31.3.1983 he failed to ensure safe custody of prisoners confined in the prison and visit every cell, barrack, ward, workshop, cooking house,latcrine etc, in order to sec the prisoners daily as envisaged under rules 100S (i) and 1008 (ii) of the Prison Rules."
12. As is mentioned in the appellant's reply the above allegation is vehemently denied by him, as being vague, as no specific instance of his failure on his part has been cited. On the contrary he claims that in terms of the rules, he visited all parts of the jail in the morning as well as in the evening but found nothing objectionable warranting any interference. According to him the escape of he prisoners was not the result of past preparations of the prisoners but every thing was done at the spur of moment and as such it could not be avoided nor detected. He has further mentioned that the prisoners were found in safe custody under the charge of guarding staff and Assistant Superintendents of the respective Beats during the entire day time , and consequently no violation of any rule was made.
Alter considering the charge and appellant'a reply thereto we are inclined to feel that the charge is vague and in absence of any evidence which is not forthcoming it can not be held as proved.The third charge against the appellant is as under; "That he failed to maintain report book and put up before the Superintendent central prison every day for his signatures in violation of rule 1009 (i)."13. The appellant has of-course denied this charge. According to him he had been maintaining his report book (register No.13) properly.
However, in the same breath he has stated; "in case however , any report has not been initiated by the Superintendent, it is for him (Superintendent) to justify. Moreover the Superintendent has been initiaiting only some of the reports of the book and not all and therefore it is evident that the report book was duly produced before him . It is however, submitted that Register No.32 (Medical Officer's Report Book) and rgister No.13 (Deputy Superintendents Report Book) were reported missing on 20.
3. 1983 and therefore the new books were started on 29. 3. 1983. However after search both the registers were later on found and placed before enquiry officer."
14. It appears from the reply of the appellant that he was concious of the fact that some of the reports recorded by him in the register were not initiated by the Superintendent. This is obviously unacceptable. On the contrary such omission raises a presumption that appellant had not been reguler in placing his reports before the Superintendent for his initials. His negligence is also clear from his admission that register No.13, which is called Deputy Superintendent's report Book and remains in the custody of the appellant, was misplaced only two days before the incident, and new register was started from 29.3.1983. Accordingly we hold the above charge as proved against the appellant.
The fourth charge against the appellant is in the following words; "That as per rule 1013,as a Deputy Superintendent of the .Centrel Prison Sukur he was required to be present at the time of lock up of prisoners immediately after sunset and satisfy himself both morning and evening time that the prisoners are present and in safe custody but he failed to perform his duty."The above charge is obviously coveredcby the discussion made under the tharge No.1. As stated in the said discussion. It is the appellant's own admission that he had left few minutes before the completion of the locking up process. Accordingly our findings are same as with regard to the first charge.
The fifth charge against the appellant is as under; " That he failed to search or get the weekly search conducted in every Cell, Barrack, Beddings, workshops and other places used by the prisoners in order to check the availability of prohibited articles, in violation of rule 1021. But on the contrary he passed unilateral orders accepting illegal demands of the prisoners in the jail disturbance/agitation dated a 20.3.1983 viz; opening of Iron Gates of circles/political word and other words during day time, non conduction of search at the main gate as well as inside the cells with the result that prohibited articles were allowed freely inside the prison, removal of jail at the interview shed etc. With ulterior motives providing opportunity to dangerous prisoners to hatch conspiracy to escape."
15. This charge consists of two parts. The first part relates to appellant's failure to have weekly search conducted as per rule 1021 which is no doubt vague and hence un-acceptable. The second part refers to his acceptance of illegal demands of prisoners as a result of agitation made by them.
Like other charges this charge too has been denied by the appellant in his reply. Nonetheless he admits the foundation of this charge in as much as that the prisoners had staged the protest on 20.3.1983 and had some illegal demands. Elaborating his reply made states; "on 20.3.1983 about 6;30 p.m. The prisoners climbed over the roof of the barrack of Circle No.2 and demanded that unless Superintendent himself did not come and listen to their demands they would not come down. I was present in jail and tried to persuade the prisoners to come down and 'maintain discipline but they vehemently insisted on their demands. I rang up the Superintenent at his residence and requested him submissively to come to jail to tackle the situation as required under rule 959 P.P.R - but he refused and directed me to agree to the demands of the prisonres and handle the situation tactfully."
16. Thus his statement shows that the prisoners of the jail had made agitation for certain demands on the aforesaid date for which the appellant had rung up the Superintendent who told him to accept thier demands and handle the situation tactfully. It looks rather curious that on one hand the Superintendent gave the appellant permission to accept whatever be the demands of the prisoners and on the other hand he advised him to handle the situation tactfully. In our opinion handling of situation the tactfully would mean to avoid the ugly situation without accepting the illegal demands of the prisoners. According to the appellant the demands made by the prisoners, were communicated on telephone to the Superintendent at his residence and he found that the Superintendent was agreeable to their demands. Consequently, he has added, he accepted their one demand straightaway i.e. Allowing concession of Salad and as regards the demand for replacement of gate he assured them that it would be gone in due course, with the result that the jail had not been replaced as alleged. It would appear from statement of the appellant, that he had taken the Superintendent into confidence with regard to the prisoners' demands so much so that he gave him blank cheque for acceptance of their demands. Obviously relying on the Superintendent's alleged consent, he admittedly acceded to some of the prisoners' demands, ln these circumstances we arc inclined to believe that in spite the appellant's denial, he had accepted even the demand of removal of jail at the time of prisoners' interview because otherwise me actual removal of the jail on the relevant occassions would remain unexplained . Accordingly we hold the charge as proved against the appellant.
The sixth charge against the appellant is as under: "that on 31.3.1983 he verbally ordered for transfer of six prisoners from political ward, the same cell where dangerous nrisnners Parno Ghandio and Ali Gohar Chandio were confined, to other wards illegally providing opportunity to the two dangerous prisoners to remain alone and to hatch conspiracy to escape."
17. On perusal of appellants' reply to the above charge, it is found that he has admited the shifting of six prisoners from political ward on the day on which the escape of the prisoners had taken place. He has however explained that he had done that on verbal orders of the Superintendent which were conveyed to him by a Chief Warder Yar Muhammad. The appellant's reply gives impression that as the orders were brought to him by a responsible official of Chief Warder's status, he had no option but to comply with the same. But in earlier part of his reply, the appellant has stated that the said prisoners were transferred to the political ward during his absence on leave for 15 days on 29.12.1982 by Superintendent himself. As soon as he returned from leave he raised objection to their transfer on the administrative grounds, specially for the reason that the political ward being situated near the main wall and out of circle, the lodging of dangerous prisoners at such a place was not admissible but unfortunately his objection was overruled by the Superintendent. If the story related by the appellant were accepted, he would be the last person to shift the same prisoners on verbal orders of the Superintendent. His explanation shows as if there existed some tansion between him and the Superintendent over shifting of the prisoners. This was additional reason for the appellant to insist on written orders of the Superintendent. As a prudent man he was not expected to implement the Superintendent's oral order as regards shifting of the prisoners. His own reply indicates that shifting of prisoners to and from political ward was a sensitive issue. In view of all these circumstances, we feel that the appellant got her prisoners shifted on his own authority and as such he was responsible for such shifting personally.
Accordingly we hold the above charge as proved.
The seventh charge against the appellant is as under: "That he remained absent from duty on 31.3.1983 at the prison from 6;20 p.m. To 950 p.m. Without permission of the competent authority."As a matter of fact, this charge is covered by the foregoing charges already discussed, particularly the first charge. The appellant has also given the same reply as he has given to the first charge. Accordingly our findinge are also same.
The 8th charge against the appellant is as under: "That in violation of Rule 1024 did not ensure that warders were acquasinted with drill and use arms in as much as be allowed Sentry Mehar Khan to remain on duty at Watch Tower No. 5 although his service being 1 1/2 months, he was not acquainted with use of rifle in his possession at the time of escape of dangerous prisoners."
18. This charge has been denied by the appellant who instead of giving reply as to whether he had violated rule 1024 or not has placed reliance on rule 1185. He has also reproduced the said rule in his reply. The rule so reproduced no doubt shows that the goneral duties of guards.
Sentries, the fixing of their periods of duty and their strength and all the matters relating to protection of the prisoners and the prison and the duties of warders are to be regulated by the Superintendent, in accordance with the orders of Inspector General. Despite his above stand, the appellant attempts to explain the posting of Mehrab Khan at Towar No. 5, by stating that on account of retirement of staff on completion of 25 years of service, the Warders establishement were recruited a new and approximately more than sixty percent of the guard were newly appointed and were within service period of three years. He has also denied that the said Warder was not acquainted with the handling of rifle, adding further that he had fired five shots and the empties were taken into possession by Investigation Police from the aforesaid Tower. His further explanation in this connection is that Mehrab Khan's posting was not international, as duties of the guards are allocated by a Duty Munshi working under the Chief Warder and then after checking by the Assistant Superintendent in charge of the Establishment, the allocation is placed before the Superintendent through Deputy Superintendent for final approval. In this way the appellant's contention was that he was not solely responsible for appointing Mehrab Khan at Tower No. 5 but the responsibility was shared by other officers too including Superintendent, Assistant Superintendent and Duty Munshi. Thus in view of his own admission we hold the appellant as responsible partly for the above charge.
The ninth and last charge against the appellant is as under: "That as a result of his failure, to comply with mandatory provisions of Prison Rules mentioned herein above with ulterior motives maladministration and indiscipline prevailed in the Central Prison Sukur causing escape of seven hardened criminals namely Paroo Chandio, Ali Gohar Chandio, Jinsar, Nadir, Rano, Ghous Bux and Ghulam Omer on 31.3.1983 at about 7;00 p.m. Which amounts to a conduct prejudicial to good order of service discipline, inefficiency and corruption."
The above charge obviously sums up all the charges levelled against the appellant. Accordingly it is covered by the discussion made in other charges.As such we need not repeat the same discussion on this charge.
In view of the charges proved against the appellant Sabir Hussain as discussed above, he has reghtly been held gulity and punished for the said charges. His appeal is therefore dismissed with no order as to costs.
As regards appellant Qamardin Abbasi , following charges are contained in the Show-cause- notice served on him; "(a) That as Superintendent Central Prison Sukur he failed to maintain order and discipline amongst prisoners and Subordinate officers and failed to adopt adequate measures to protect and manage the prison in contravention of fule 940 (b) and 940 (c)of Pakistan Prison Rrules.(b)
That as a Superintendent Central Prison Sukur, he Tailed to visitflip Pricrm r\r\rf* pvptv wnrlrtrifr Avk\j rpmiirp.H iinHp.r Riilp^ Q41read with Rule 956 in order to cause all the prisoners to be checked and counted at least twice daily, at unlocking in the morning and at lock up in the evening.(c) That he failed to take necessary precautions to prevent escapes and cause daily examination of all cells, doors, windows, bars, bolts, locks, fetters handcuffs, and fastenings etc and also failed to take necessary and sufficient precaution for security of dangerous prisoners in contravention of Rule 970 - 971 of the Pakistan Prision Rules respectively as he did not ensure that the dangerous prisoners Paroo Chandio and Ali Gohar Chandio were bar fettered.(d) That he did not take rcsonable and adequate precautions and measures to ensure that the warders (particularly of Watch Tower No.5) were acquainted with drill and use of arms resulting in escape of dangerous prisoners which indicated that he failed to manage and protect the prison and prisoners in violation of rule 940 (a)(e) That as a result of his failure to comply with mandatory provisions of Prison Rules and provisions of Prison Act, 1894 etc. Mentioned herein with ulterior motives, mal- administration and indiscipline prevailed in the Central Prison Sukur causing escape of seven hardened criminals namely Paroo Chandio, Ali Gohar Chandio, Jinsar, Nadir, Bano, Ghous Bux and Ghulam Omer on 31.3.1983 at about 7.00 p.m. Which amounts to a conduct prejudicial to good order of service discipline, inefficiency and corruption."
19. The charge at (a) is obviously of general nature and therefore vague. It is not specific in showing how and in what manner the appellant failed to maintain order and discipline amongst his subordinates as well as prisoners. It also docs not pin point the measures that he failed to adopt for the purpose of protecting and managing the prison. In reply to the above charge the appcllent has, placed reliance on the remarks of Lt. General Ahmed Jamal Khan dated 27.12.1980 he had recorded in Register No .14 (visit book). They are reproduced as under: "Visited the Central Jail Sukur and found it clean and well organised. The Superintendent is taking keen interest in the administration and welfare of the prisoners and staff."
20. Apart from above he has also cited the remarks given to him by the I.O. Prison when he visited the jail on 25th December, 1982. Without reproducing the same, it may he stated that they speak high of the discipline of the staff and cleanliness in the jail premises. According to the appellant he served the Central Jail Sukur from 16.10.1980 to 5.4.1983 and during this entire period he claims to have maintained discipine and order amongst the prisoners and subordinate staff so much so that during the period of six months ending 5.4.1983 he awarded various punishments to about 27 subordinate officers and major punishment were awarded to 24 prisoners during the years 1981 and 1982. By making such claims, the appellant has obviously refuted the charge. As enquiry envisaged by the said rules was not held, there was no evidence to prove the charge and rebut the appellant's claim. Nonetheless he being head of the jail administration could not proclaim his total innocence.The very occurrence in which seven prisoners managed to escape from the jail was by itself a serious reflection on him .
21. As regards the charge at (b), the appellants reply is that it is vague in as much as that no specific instance of contravention of rule 941 or 956 has been given . Repelling the charge, he has stated that he had been regularly visiting the prison which could be verified from the order book and the gate register. As regards checking and counting of the prisoners, his reply is that it was regularly made daily in accordance with the rules. In the face of the appellant's reply as slated above it was necessary to prove the charge. No enquiry was held under the said rules, nor any evidence oral or documentary was produced in support of the charge . Accordingly we can not hold the charge as proved:22. Coming to' the charge at (c) it is found that the appellant has denied that charge too, adding that despite his protestation, 150 dangerous prisoners were shifted to his jail on the ground that he was capable of controlling them. According to him the long correspondence on the issue is silf-speaking. In view of the appellant's denial of the charge, necessary evidence should have been produced to prove it. But neither such evidence was forthcoming on the record nor enquiry was held under the said rules. Accordingly this charge stood unproved for want of evidence.
23. As for the charge at (d) the appellant's plea is that as per rule 1024, it .Was the duty of the Deputy Superintendent to ensure the posting of trained warder on watch tower. He have already discussed this issue in course of our discussion made in the case of appellant Sabir Hussain, Therefore we need not report the same discussion. In any case this charge can not be held to have been proved against the appellant.
The charge at (e) has also been vehemently denied by the appellant. According to him on the day of incident he had gone to appear in the court of Civil Judge and F.C.M. Khairpur the fact which he had mentioned even in the FIR that he lodged at P.S. Rohri as. Regards the escape of the prisoners.
According to him he returned from Khairpur at 5.30 p.m. And he was informed about the firing by a warder at about 7:15 p.m. At his residence. On receipt of such information he immediately informed SSP Sukur and took other necessary measures. In view of his lengthy explanation totally denying the charge, we looked for necessary evidence in proof of the charge. But on such evidence was available nor enquiry envisaged by the said rules, was held. In these circumstances we can not hold this charge to have been proved against the appellant.
24. Keeping in view the above discussion, the impugned order can not be sustained which is accordingly set aside and the appeal No.43/1984 filed by Qamardin Abbasl is allowed with no order as to costs. However as pointed out above the escape of prisoners from the Jail of which the appellantwas the head cast serious adverse reflection on his discharge of duties as such head.
Therefore the department would be free to proceed against the appellant afresh in accordance with the said rules, if the department has in its possession sufficient evidence to prove the specific charges. If any against him.Given under our hands and the seal of this Tribunal on this 30th day of Januuary , 1989 at Karachi.