JUDGMENTMOBEEN AHMAD KHAN, MEMBER.- The appellant Sultan Shah who has filed this Appeal No.7 of 1988, was appointed as a Police Constable in the year, 1961 at Karachi. The appellant has represented against the dismissal from service as a Police Constable which subsequently in departmental appeal, was converted as compulsory retirement.The facts giving rise to the above litigation as stated in the memo of appeal in brief are that on 12th May, 1986 when the appellant was posted as Constable in South Police Headquarter, Karachi, the appellant was deputed for taking under trial prisoners namely Wazir Khan S/o Jan Muhammad and Muhammad Rafique alias Gody S/o Abdul Ghafoor, to the Court of Additional District Judge, Karachi of New Town Police Station. These under trial prisoners were involved in many other criminal cases as well. Accussed Muhammad Rafique alias Gody was also a convict in several other cases. At or around 1345 hours; both the UTPs escaped from the lawful custody of the appellants. For this criminal negligence, the appellant was arrested and a case bearing FIR.No.97/86 u/s 224/225-A PPC was registered at Risala Police Station. Simultaneously the appellant was charge sheeted by the order dated 24.6.1986 of the Superintendent of Police (Addl.I) District South Karachi for the following delinquency described in the statement of allegation.
3. "On 12.5.1986 S.I. Muhammad Yaqoob of City Courts Lock-Up handed-over two UTPs Wazir Khan s/o Jan Khan and Muhammad Rafiq alias Guday s/o Abdul Ghafoor to you for producing them in the Sessions Court of A.D.J. East in case FIR No. 245/82 u/s 17(4) of New Town P.S. They were also involved in many other criminal cases. Accused Muhammad Rafiq alias Guday was also a convict in several other cases. At 1345 hours both the accused (the said UTPs) on the same date escaped from your lawful custody. A case FIR No. 97/86 u/s 224/225/-A PPC was registered at P.S.Risala and you were arrested."
The appellant submitted his reply on 22.6.1986. As required by rule 5(2) of the Sind Civil Servants Efficiency and Discipline) Rules, 1973, hereinafter referred to as the said rules, SHO TPX, Inspector Choudhry Muhammad Ashraf was appointed as Enquiry Officer to probe into the charges and fix responsibility of the escape of the U.T.Ps involved in henious Crimes. The Enquiry Officer submitted his findings on or about 23.12.1986, holding the appellant guilty of negligence due to which the dangerous U.T.Ps escaped from the lawful custody of the appellant. The Enquiry Officer recommended major punishment of dismissal from service. On taking into consideration the findings of the Enquiry Officer and the recommendation made by the authorised officer, the Authority in this case viz Superintendent of Police (Addl.I) District South Karachi issued Final Show Cause Notice on 31.12.1986. The appellant submitted reply of this Show-cause notice and sought personal hearing. The Authority heard the appellant on 4.2.1987 and finding no substance in the explanation and after completing the departmental requirement passed the Final Order of dismissal against the appellant on 7.2.87. The relevant para of the order read as under :-4. "I have carefully gone through the entire DP file No. 109/86 -J & evidence on record, I agree with the finding/recommendation of the E.O. Insp: Ch. Muhammad Ashraf. The respoudent is dismissed from service with immediate effect. Period of his absence during suspension from 3.6.86 to 11.6.86 & 5.7.86 to 10.7.86 is treated as LWCP. The remaining period of his suspension from 13.2.85 to 12.3.85,12.5.86 to 2.6.86, 12.6.86 to 4.7.86, 11.7.86 to 24.9.86 and 12.1.87 to the date of issue of this final order, is decided as such. All Govt./dues/Kit articles should be accounted for properly."
5. The appellant then filed the review petition/appeal before the Deputy Inspector General of Plice, Karachi on 4.3.1987. The Deputy Inspector General of Police rejected his appeal on 18.6.1987 in view of the appellants's unclean record. He however took a lenient view in consideration of the appellant's long service of over 25 years, and changed the punishment of dismissal to compulsory retirement. It is against this order that the appellant has filed the present appeal.
6. We have gone through the case filed with the assistance of the appellant's advocate Mr. S.M.Rizvi and Mr. Imdad Hussain Kazi, Govt. Counsel to thrash out the relevant issues, since several other acts of ommission and commission of the appellant were also imported on the file. For instance, a reference to an Anticorruption Enquiry against the appellant is quoted in the Final Order dated 7.2.87 of the S.P. (Addl.I) and his misbehaviour with the members of Bar is cited in the brief history of the case given in the written statement submitted by the respondent. Since the impugned order of his compulsory retirement related to the incident of the escape of the U.T.Ps from the custody of the appellant, we confined overselves to this charge alone.
Inciidently the charge of negligence is proved from the appellant's own admission. In this memo of appeal and even during the course of arguments, the following admissions are conspicuous.
7. The story as narrated in the memo of appeal as well as the appellants written reply of the charge sheet reveal that he was detailed to produce the above named U.T.Ps involved in case F.I.R, No.245/82 under section 245 of Police Station New Town Karachi in the Court of Additional District Judge Karachi. The U.T.Ps were handed over to him on or about 12.30 vide station diary entry No. l2 of City Court lock-up. As asserted by the appellant he asked AS1 Muhammad Yakoob Incharge City Court Lock-Up to detail two more constables for the purpose, as U.T.Ps were hardened criminals and dangerous disorderly persons. As stated by the appellant, AS1 Muhammad Yakoob paid no heed to his request and directed him to produce the U.T.Ps in the relevant Court. Admittedly the escort constitution a single unarmed constable is a flagrant violation of police rules as escort should comprise of three armed constables to ward off any eventuality. The appellant who had put in a long service of 25 years and has been performing such duties since long was quite aware of the procedure and rules. He was also conscious of the dangerous nature of the U.T.Ps and yet he accepted the custody of the U.T.Ps for producing them before the relevant court. The appellant could have legitimately refused to accept their custody till such time he was provided with a reasonable armed escort as required under the police rules. There is no evidence on record that his refusal would have entailed the risk of his service. Even AS1 Muhammad Yakoob could have informed the trial court of his inability to produce the U.T.Ps in case sufficient force was not available for doing the needful. The evidence recorded by the Enquiry Officer to the contrary reveals that the appellant with no hesitation accepted their custody and made no protest at all.
Whatever be the factual position, it is however abundently clear that the constable was under no legal and moral obligation to accept the charge of the two U.T.Ps when he was neither armed nor he was provided with the required armed force which is normally done in such cases. The very fact that only appellant who was unarmed, was detailed proves that things were manvoured to facilitate the escape of the hardened U.T.Ps. This violently speaks of some conspiracy since the U.T.Ps escaped the custody with no difficulty. Further there are reasons to doubt that the AS1 Muhammad Yakoob who was incharge of the City Court Lockup has abated the offence. There is no force in the appellant's contention that AS1 Muhammad Yaqoob should have been put to task and instead he was made an escape goat by the SHO TPX who was on enimical terms with him.
This plea can not absolve him from his irresponsible behaviour and gross negligence demonstrated in this case.
9. The negligence on the part of appellant is further substantiated when the appellant admitted that while proceeding back to another court he has allowed the under trial prisoners to urinate which afforded a chance to the U.T.Ps to escape from his custody with the help of armed gundas.
The appellant was well aware.That he was unarmed and not assisted by any armed escort and hence he should not have allowed the above cited U.T.Ps for an act which facilitated their escape.
He should have brought them back to the lockup or solicited the assistance of other constables present in the court if at all it had became emergent to allow the U.T.Ps to urinate. Incidently this story is not corroborated by the evidence recorded by the Enquiry Officer. On the contrary what is revealed from the enquiry report as well as from the written statement of the respondent in quite different from what has been stated by the appellant. According to the enquiry report the allegation of attack on 12.5.1986 by the qundas to obtain release of the U.T.Ps from the appellant's custody is incorrect as no independent evidence was led to substantiate the story. Unfortunately the appellant was neither enjoying credibility in the department nor was having any good record to his credit to make his higher authorities believe his version. The appellant, prior to this, has already been awarded major/minor punishment on seven different occasions as indicated in the written statement of the respondent. Further the appellant is also facing trial in an Anticorruption case, registered by the ACE, Karachi. No independent evidence has been attributed by the appellant to prove that force was applied by the attackers to obtain release of the U.T.Ps and that despite his best endeavours he could not avert their escape. The incident reportedly occurred at 12-30 p.m. In the City Court premises where large number of persons might have witnessed the incident. In the above circumstances no credibility can be attached to his version. The very admission that he allowed the U.T.Ps to go for urination establishes without any doubt that no due measures were taken by the appellant, and the U.T.Ps taking full advantage of the situation managed them escape.Under the police rules such a lapse on the part of the police officer is a serious offence and the incumbent becomes liable of criminal liability besides dismissal. Incidently in this case the DIG Police had already taken a lenient view because of his long service and had converted the dismissal into compulsory retirement.
10. As an upshot of the above discussion we do not find grounds to set aside the impugned order as sufficient compassion has already been shown to the appellant by the DIG, Police who had converted his dismissal into compulsory retirement. However we are inclined to observe that the other accomplinces in this case have escaped the ordeal of the departmental action. The police rules has been flagrantly violated to create circumstances which facilitated the release of U.T.Ps from the lawful custody of the appellant. There are reasons to doubt that others have also conspired in this ignoble act. At least, at the outset, the conduct of Mr. Muhammad Yakoob AS1 Incharge City Court Lock-up was not above board. We therefore, direct that the matter should be investigated further to punish suitably all those who have conspired and violated the rules by not taking due care and measures normally required for presenting the under trial prisoners before the trial court.With the above observations and in view of the above discussions, the appeal is dismissed with no order as to costs.
Given under our hands and seal of this Tribunal this 13th day of February, 1989.