' That on 15-8-1997, F.I.R. No,343 of 1997 under section 223/224, P.P.C. Was lodged against the petitioners at Police Station City Layyah alleging therein that accused persons namely Ghulam Qasim, Ghualm Akbar and Muhammad Hussain who were involved in criminal cases, succeeded in running out of the lock-up by cutting the iron rod at the back side of the lock-up where the aforesaid Constable No,4080 was on duty. It is also alleged in the F.I.R. That the occurrence took place due to the negligence, inefficiency and lack of responsibility on the part of the petitioners and in this way the desperate criminals succeeded in running away from lock-up. Beside the registration of the abovesaid criminal case the departmental proceedings have also been initiated against the petitioners and a show-cause notice No,195 P-A, dated 7-10-1997 has been issued to them. In addition to that a judicial inquiry has also been ordered by the Sub-Divisional Magistrate, Layyah after consultation of the District Magistrate. Mehr Maqbool Ahmed, City Magistrate has been detailed to conduct judicial inquiry into the incident.
2. Through the present petition the petitioners have challenged the action of respondents Nos.1 and 2 with the prayer that since challan in F.I.R. No,343 of 1997, dated 15-8-1997 registered at Police Station City Layyah under section 223/224, has been completed and the same has been sent to the Court of competent jurisdiction for trial, any other proceedings regarding the same occurrence is a nullity in the eyes of law and the same are to be stayed till the final adjudication of the criminal case registered against the petitioners. Learned Additional Advocate-General was directed to enter appearance and assist the Court on the proposition involved in this case. The learned Additional Advocate-General is present today.
3. I have heard the learned counsel for the petitioners as well as the learned Additional Advocate- General. Learned counsel for the petitioners submits that when a criminal case is already stands registered against the petitioners then the departmental proceedings' as well as judicial inquiry in the same matter cannot be taken side by side. He further contends that Executive Magistrate cannot pre-empt the jurisdiction of the Illaqa Magistrate. The judicial inquiry if allowed to be continued and conclusion arrived at by the Executive Magistrate is different from the conclusion to be reached at by the Judicial Magistrate. Naturally all the proceedings conducted by the Executive Magistrate will be considered unlawful, without jurisdiction and that will be of no effect, therefore, there is no necessity at this stage to continue with judicial inquiry which is being conducted by the Executive Magistrate and the same be declared to be void ab initio and having no substance.
Learned counsel for the petitioners further submits that as far as the departmental inquiry is concerned the same is also exercise in futility and same may be the case of double jeopardy because when a police officer has been tried and acquitted by a Criminal Court he shall not be punished departmentally on the same charge or on a different charge based upon the evidence cited in the criminal case, whether actually led or not. Learned counsel has referred Chapter 16.3 of the Police Rules, 1934. The learned Additional Advocate-General submits that as this matter relatable to the terms and conditions of the service, the jurisdiction of this Court is not attracted having been barred under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973. He further submits that the proceedings in criminal cases are entirely different from the departmental action which are to be taken under Efficiency and Discipline. Rules, 1975 and for this, show-cause notice has already been issued to the petitioners if at all they are aggrieved by the issuance of show-cause notice the remedy available to them is to challenge the same before the higher departmental authorities and on this score too, this Court cannot thrash out this matter under Constitutional jurisdiction. He further submits that judicial inquiry is a legal inquiry and also independent from departmental inquiry as well as the criminal proceedings. In support of his argument reliance is placed on 1996 SCM R 24 titled as Anwar Ahmed Khan v. The State.
' I have heard the learned counsel for the petitioner and the learned Additional Advocate-General.
The contents of the F.I.R. Reveal that three desperate criminals have made good their escape from police lock-up and after all somebody has to share this slackness. It was a day time occurrence, it is for the Court of competent jurisdiction, who is already seized with the matter, to decide and determine the same after recording the evidence in the case. As far as the departmental inquiry is concerned it cannot be connected with registration of the case, which is altogether an independent proceeding. The slackness on the part of the petitioners can also be dealt with under Efficiency and Discipline Rules and for that they have been served with show-cause notice if at all they are aggrieved by show-cause notice they have the remedy to invoke the said notice before the appropriate departmental authority. The judicial inquiry which is being conducted on Executive side is also altogether independent proceedings and it cannot be said that this is a case of double jeopardy.
4. In the light of the above discussion this petition has no merits and the same is dismissed in limine.