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Appeal No. 30/914 of 1977, decided on 4th March, 1979.

‑‑‑ R. 12‑‑Misconduct‑Charge of inefficiency due to escape of under trial offender from custody‑ Appellant's request for adducing evidence in support of his innocence not allowed‑Compulsory retirement ordered by Superintendent of Police‑D.I.‑G. of Police on Revision application enhancing penalty to that of dismissal without. show cause notice‑Appeal rejected without personal hearing by I.‑G. of Police‑Right of defence opportunity, held, denied and order passed by D. I.‑G. of Police and Superintendent of Police set aside‑Case remanded for fresh disposal after opportunity of evidence in defence and personal hearing.

Sh. Nisar Qutab for Appellant.

A. G. Humayun, Government Pleader for Respondents.

This appeal emanates from the following facts:

That on 29‑12‑1975 an under trial Pashrd Ahmad alias Ijaz escaped from the Police custody from the premises of the District court, Faisalabad. The aforesaid Ijaz was being tried on the charge of murder. A case F. I. R. No. 907 dated 29‑12‑1975 was registered at the Police Station, Kotwali, Faisalabad in respect of the above incident. The appellant along wish four Constables who were escorting the aforesaid under trial Rashid Ahmad alias Ijaz, were charge‑sheeted on 3‑1‑1976 by the Superintendent of Police, Faisalabad, on the charges of inefficiency and misconduct. The appellant filed the explanation stating therein that on the relevant date about 77 under trials were brought from the District Jail, Faisalabad to the District Courts, Faisalabad, 7 5 under the supervision of Head Constable Muhammad Hussain No. 309 and five Constables for production in the Court of Assistant Commissioner, Faisalabad. The appellant himself was on duty in the lock‑up. It appears that since only one hand of the accused was hand‑cuffed and they were allowed to cover their hands with chadars, therefore, the aforesaid Rashid Ahmad alias Ijaz managed to escape. The Superintendent of Police, Faisalabad, after taking into consideration the explanation of the appellant directed the compulsory retirement of the appellant front service vide his order dated 14‑1‑1976. The appellant preferred an appeal to the Deputy Inspector‑General of Police, Sargodlia Range who enhanced the punishment from compulsory retirement to dismissal from service on the ground that the liability of the Constables was secondary and the primary responsibility was of the appellant. The appellant challenged the order of the D. I.‑G., Sargodha Range, dated 7‑6‑1976 before the Inspector‑General of Police by an appeal which too was rejected by the Appellate Authority on 5‑1‑1977 without hearing the appellant. The appellant made the grievance that the D. I.‑G. Sargodha Range, was not entitled to enhance the punishment without issuing the show‑cause notice to the appellant. Similarly he assailed the order of the I.‑G. Police, Punjab, on the ground that the appellant had a statutory tight of appeal before the I.‑G. Police, Punjab against the order of D. I.‑G. which was in essence original order in so far as it imposed the punishment of dismissal. He also submitted that the D. I.‑G. did not grant any hearing even against the order of S. P. Besides, the objection of the appellant was that It was essential for the S. P., Faisalabad, to hold an enquiry in the circumstances of the case with regard to the escape of the undertrial prisoners. The appellant submitted that according to para. 3 of the Standing Orders of the Police Rules, 15 under trials were escorted by the defaulter Head Constable and five Constables, thus the primary responsibility lay upon them and the appellant was acting merely in supervisory capacity. He also submitted that in fact there was nothing before the competent Authority except the fact of the escape of the aforesaid accused Rashid Ahmad alias Ijaz to make the appellant responsible for the escape. He submitted that he wanted to lead evidence to prove that he had taken sufficient and adequate measures and the accused were properly handcuffed. The learned Govern ment Pleader argued that the enquiry was unnecessary and the authorities had rightly dispensed with the same in his discretion. He also relied upon rule 12 of the Punjab Police (Efficiency and Discipline) Rules, 1975 to contend that the D. I.‑G. being a Revisional Authority had the powers to enhance the punishment. He also submitted that the representation before the I.‑G. Police, Punjab, was in the nature of Review and he was not bound to hear the appellant. Thus the impugned orders were unexceptionable. After bearing both the parties, we are of the view that this appeal merits to be accepted. In the first instance, in our opinion the facts of the case warranted an enquiry or at least an opportunity should have been given to the appellant to lead defence, to establish his innocence. We are also in agreement with the contention of the appellant that the D:I.‑G. Sargodha Range while enhancing the punishment even in the revisional jurisdiction was required to give notice to the appellant which he admittedly failed to give in this A case. Thus the D. I.‑G.'s orders cannot be allowed to stand. Since the D. I.‑G., Sargodha Rang dismissed the appellant from service for the first time, the appellant was entitled to have a right of appeal against the same to the I. G. Police, Punjab in which the appellant had a right to be heard in person which right had been denied to him. For the aforesaid facts, we set aside the orders passed by the D. I.‑G., Sargodha Range and also by the I.‑G. Police, Punjab. Similarly, the order of S. P., Faisalabad is also set aside as the appellant had not been allowed the due opportunity, to establish his innocence. The case is accordingly remanded to the Superin tendent of Police, Faisalabad, for fresh disposal after allowing the appellant due opportunity to be heard in person and also to lead evidence if so advised to disprove the charges against him.

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