' On 4-4-1997 the appellant alongwith 10 Police Officers escorted 52 under trial prisoners in Bus No,1768 SGX from Bhalwal to Sargodha. After the Court proceedings at Sargodha the under trials were boarded in the said bus. While on route to Bhalwal, when the vehicle reached Chak No,27/GB the under trial resorted to drawl and firing in the bus with the intention to escape from the Police custody. Resultantly 3 constables and one prisoner were injured during the incident while 8 prisoners absconded. However according to the appellant, out of 8 absconders, 6 were arrested soon after their escape. In consequence of this incident, respondent No,1 issued a show-cause notice dated 3-4-1997 (Annexure A), which was served upon the appellant on 9-4-1997. The appellant replied the said show-cause notice in shape of Annexure B. Respondent No,1 vide impugned order dated 15-4-1997 imposed major penalty upon the appellant of compulsory retirement from service. The appellant preferred a Departmental appeal Annexure before respondent No,2 who rejected the same vide order dated 5-9-1997 (Annexure E). Feeling aggrieved the appellant assailed the order dated 5-9-1997 before Inspector-General of Police through a revision petition (Annexure F) which was also rejected by him vide impugned order dated 9-4-1999 (Annexure G) which was communicated to the appellant on 19-5-1999. The appellant through the instant appeal has challenged the legality, correctness and propriety of orders dated 15-4-1997, 5- 9-1997 and 9-4-1999 on the grounds that major penalty of compulsory retirement from service was imposed without holding a regular enquiry in violation of the pronouncement of the Apex Court as well as directives of respondent No,3 issued from time to time. The appellant was not afforded opportunity of hearing and defence. All the impugned orders were made on the basis of a preliminary enquiry conducted at the back of the appellant which could not be used against the appellant. It was added that during the incident mentioned above, 3 constables sustained injuries which clearly proved that genuine efforts betressed with courage and devotion to duty were made without a taint of cowardice by escort party including the appellant to thward the designs of the under trial. Out of 8 escapesists, 6 were arrested on the spot while the remaining 2 were also hauled up, on the secret information. Unfortunately this aspect of the matter was not taken into consideration by the respondents while passing the impugned orders. Some members of the escort party were dealt with leniency by the respondents, while others who filed Departmental appeals were retained in service after awarding them minor punishment, but, the appellant was awarded major penalty and in this way the appellant was subjected to discrimination. The appellant did not show any laxity in the performance of his duty despite the fact that he was issued no arms officially. He escorted 52 under trials with only 2 armed Constables in the bus which in the ordinary course of nature was not free from all sorts of hazards. Ill equipped escort was not in a position to withstand the sudden incident. The appellant has 16 years of unblemished service to his credit studded with several commendation certificates of his superiors. The fateful incident was the first lapse, which too, without conceding, did not call for major penalty.
2. Written objections were called by the respondents-. They contended that as a result of the incident 3 constables and 1 prisoner were injured and 8 under trials made good their escape. Some of the escapees were very hardened and desperate criminals. The show-cause notice was served upon the appellant and he replied thereto as Annexure E. All the pros and cons of the dent were seen thoroughly. The matter was probed into by the D.S.P. Headquarters Sargodha and the appellant was found guilty of cowardice and gross negligence. He was also heard in Orderly Room and he failed to forward any cogent reasons to prove his innocence. The constables were injured by the firing of under trial prisoners. The appellant had not allowed the police parties to open the fire which confirmed that appellant had actively connived with the accused in respect of their escape. The appellant was commander of Police Escort. It was his sole responsibility to check and guard the under trial persons but he did not perform his duties in proper/appropriate manner.
Rather he facilitated the escaping accused for free meeting with the outsiders due to his negligence. The petitioners conduct was highly unsatisfactory. All the police personnels had been constantly reminded during the briefing to properly check the handcuffs and other possessions of there under trials but the petitioner ignored these instructions. The impugned order were passed keeping in view of the serious allegations and negligent attitude of the appellant hence the impugned orders did not bristle with any infirmity. Arguments advanced by Mr. Asim Nazir Awan for the appellant and that of Mr. Iftikhar Ahmad, Legal Inspector and District Attorney for the respondents were heard. It was argued that all the allegations levelled against the appellant required a thorough probe but only the fact finding enquiry was conducted and respondent No,1 passed his findings on surmises and conjectures. The above procedure was violative of the directives of the I.G.P. And dictum laid down by superior Court of Pakistan. The appellant was not joined to the fact-finding enquiry even. The conclusion was ex parte. The appellant was not provided with the copy of the fact-finding enquiry alongwith show-cause notice. Hence he was not in a position to explain the lapses ascribed to him in a befitting manner. Other delinquents were given minor penalties but the appellant was subjected to discrimination and major penalty was imposed upon him in shape of compulsory retirement. It was noted that the appellant had unblemished record. He never displayed any such like cowardice in the past. He also deserved a lenient view. Learned counsel for the appellant relied upon 1980 SCM R 850, PLD 1989 SC 335, 1990 SCM R 1358, 1993 SCM R 603, 1985 SCM R 1062, 1991 SCM R 209, 1988 SCM R 691 and 2000 SCM R 669 (Supreme Court of Pakistan). Conversely it was argued by the Legal Inspector and the learned District Attorney that a thorough probe was made by the D.S.P. Headquarters. It was the appellant who facilitated the escape of the under trial prisoners. He provided an opportunity to the under trials to meet private persons who provided them arms. It was also the appellant who forbaded his subordinates not to resort to firing. The appellant was the Commander of the Escort party and sole responsibility rested on his. Shoulders. He committed criminal negligence in the performance of his duties, therefore, he was rightly taken to task by his superior i,e, respondents Nos.1 to 3.
3. At the very outset let me produce the contents of the show-cause notice served upon the appellant as under:-- ' You A,S.-I. Zulfiqar Ali 747(U/S) while posted to Police Lines did not perform your official duties in an appropriate manner that on 4-4-1997 at 1230 hours you alongwith police party bearing Bus No,1766/SGR carrying 52 under trial prisoners were escorting from Bhalwal to Sargodha. En route, near Chak No,27/GB accused armed with fire-arms overpowered police guard comprising you and other 10 police officers, injured 3Cs and one under trial Mazher son of Ahmed, resident of Naseerpur Kalan Police Station Mid Ranjha, who is admitted in Hospital in critical conditions. 6 under trial escaped from Police custody. Two Mukhtar and Jehana involved in murder, Burglary and Arms Ordinance cases absconded. Case F.I.R. No, 85 dated 4-4-1997 under sections 324, 2232,24, 225-A, 332, 333, 353, 186, 148, 149, P.P.C. Police Station Sadar Sargoha has been registered against you, others and escapee.
2. This heinous incident occurred due to your active connivance with the criminals and gross negligence for which you alongwith others were placed under suspension, closed to Police Lines, warranting disciplinary action against you.
4. Nasir Khan Durrani, respondent No,1 vide impugned order observed that enquiry furnished by D.S.P. Headquarters and investigation of case F.I.R. Nos. 85 Of 1997 under sections 324, 224, 223, 225- A, 332, 353, 186, 148/149 and 186 Police Station Saddar Sargodha confirmed that all the Police Officers including Incharge Guard showed cowardice, Which facilitated escape of the under trials, although the police guard was also armed. Moreover being Incharge of the Police Guard, he was supposed to take appropriate search of the prisoners under trials before boarding them at Bhalwal. The accused officer has been found guilty of gross negligence, inefficiency, cowardice in the discharge of the duties. The explanation tendered by the accused is unsatisfactory. As such he is retired compulsorily w,e,f, 15-4-1997. According to the order referred to above an enquiry was conducted by D.S.P. Headquarters, Sargodha who fixed the responsibility. A copy of the enquiry was produced before the undersigned at the time of arguments. It is evident that the proceeding, of the fact-finding enquiry was conducted at the back of the appellant. The above report nowhere indicates that appellant was also associated thereto. The contents of the report formed basis of the appellant's dismissal; but the official never participated in such enquiry and was neither confronted with such report so the report is of no legal significance. The allegations were of serious nature and apparently the appellant was labelled as principal accusal. According to the show- cause notice and Fact-Finding Enquiry Report, the appellant was found to be hands in gloves with some of the under-trial prisoners. He entertained some of them while in the lock-up. He did not allow his subordinates to open fire. He did not check the prisoners at the time of boarding them at Bhalwal and he did not let his subordinates chase the escapees. The nature of allegations certainly required a thorough probe, but D.S.P. Headquarters conducted the enquiry in slipshod manners without associating the appellant. A regular enquiry was required before imposing a major penalty.
Even the Fact-Finding Enquiry was a product of conjectures and surmises. Such like procedure has been discarded by the Superior Courts of Pakistan as reported in 1990 SCM R 1358 and PLD 1999 Supreme Court 335. It was also observed in 1993 SCM R 603 (Supreme Court of Pakistan) that for resolving controversial questions of facts where evidence has to be recorded and opportunity of cross-examining is to be given, proper course would be to hold a full-fledged enquiry, otherwise findings recorded would be based more on conjectures than on evidence/material available on record properly produced and accepted.
5. The quantum of loss is also of vital importance. Three constables were admittedly injured while one undertrial prisoner also sustained injuries. It is also not denied that out of 8 escapees 6 were nabbed soon after the incident whereas two were arrested on the following days. Injuries on the person of three policemen and then re-arrest of escapees confirmed that sincere efforts were made to resist the sudden on slaught. It is also nowhere repelled that the appellant was supplied with any arm officially. The appellant was also challaned. Report under section 173, Cr.P.C. Shows that he was placed in Column No,2. The accused was arrested on 4-4-1997; the challan was sent up submitted on 17-2-1998. The proceedings conducted thereafter (attested copies of the proceedings produced during arguments) confirm that the appellant was never summoned, as an accused. On 14-11-1998, 4 of the accused/undertrial prisoners were convicted; on 19-10-1999 two other accused was awarded sentence; vide order dated 19-4-2000, 3 undertrial prisoners in police custody were charge-sheeted. In the nutshall the appellant was never summoned as an accused.
Had he be involved in the role ascribed to him, he would have been summoned uptill now. So the very basis evaporated with the passage of time. The immunity of the appellant is a speaking evidence of his innocence otherwise there was no legal (sic) for the Court seized of the matter to summon the appellant after submission of challan no matter he was placed in Column. No,2. The trial Court certainly was convinced that no sufficient grounds existed to proceed against the appellant. In such eventuality no rope could be put around the neck of the appellant, I am foftified by 1985 SCM R 1062 and 1991 SCM R 209.
6. Muhamamd Mumtaz, Ashfaq Ahmad, Hasnain Ali, Muhammad Aslam 1209, Muhammad Aslam 1487 and Amjad Javed were also the members of the Escort Party. They were also proceeded against under the E&D Rules. Learned counsel for the appellant produced copies of the orders by which they were subjected to different kind of penalties. It is evident from the order of D.I.-G. Dated 2-2-2000 that after escape of 10 prisoners the members of guard made day and night efforts which yielded in success and out of 10, 8 were apprehended within 2 hours of the occurrence and remaining 2 were also apprehended. The D.I.-G. Added that in view of the explanation of Muhammad Mumtaz No, 202 who has 19 years service, a lenient view was required and D.I.-G.
Converted the punishment of compulsory retirement from service into stoppage of increment for 2 years. Similarly Ashfaq Ahmad, a member of the same guard was taken to task and his 2 years approved service was forfeited by the S.P. Vide order dated 17-4-1997. Hasnain Ali No, 856 and Muhammad Aslam 1209 were also given the same treatment vide orders dated 17-4-1997, Muhammad Aslam No, 1487 filed a revision before the I.-G. Of Police who converted the compulsory retirement into stoppage of increment for 2 years. Amjad Javed was also an accused. The I.-G.
Punjab vide order dated 2-3-1998 converted the punishment of compulsory retirement into reduction in pay by one stage. It is evident that co-civil servants similarly placed have been reinstated by authority, therefore, the appellant also deserved the same treatment and no discrimination was called for. I am supported by 2000 SCM R 669 (Supreme Court of Pakistan). The penalty awarded to the appellant was not commensurate with the negligence ascribed to him. He didn't deserve the compulsory retirement keeping in view his past service record of 16 years.
Apparently it was the first lapse and he also deserves lenient view.
7. Upshot of the above discussion is that all the impugned orders dated 15-4-1997, 5-9-1997 and 9- 4-1999 are set aside. The penalty in shape of compulsory retirement is converted into stoppage of increments for 2 years. The appellant is reinstated from the date of his compulsory retirement. The intervening period will be treated as 'leave of the kind due. The appeal is accepted accordingly.