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Case No. 111/88 of 1983.

‑‑ R. 15‑Misconduct‑Wilful negligence‑Appellant and three other Constables detailed for escort of criminals under trial‑Conni ved action resulting in escape of criminals‑All accused, in depart mental enquiry, found guilty and three of them ordered to be dismis sed by Superintendent of Police who found Incharge of Guard as main accused and distinguished one who had received serious injury while resisting escape of criminals‑‑Order upheld by D. I.‑G. but Addl. 1.‑G. took up their cases separately and re‑instated main accused only on basis of long service at his credit‑Contention that major penalty of dismissal highly discriminatory and unjustified, upheld- Order of dismissal set aside and case remanded to Addl. L‑G. with critical observations for reconsideration of his orders in both cases.

Ch. Mushtaq Masud for Appellant.

A. G. Humayun, District Attorney for Respondents.

‑Muhammad Ashraf, ex -Constable No. 1231, has tiled this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Additional Inspector‑General of Police, Punjab, Lahore, Deputy Inspector‑General of Police, Sargodha Range, Sargodha and Superintendent of Police, Faisal abad, as respondents.

2. By virtue of this appeal he has prayed that the impugned order passed by Superintendent of Police, Faisalabad, dated 13th September, 1980, by which he was dismissed from service and the two appellate orders confirming the order of Superintendent of Police noted above, passed by D. I.‑G. Police. Sargodha Range, Sargodha as well as Additional Inspector‑General of Police, Punjab, Lahore, be set aside and he may be re‑instated in service with all back benefits of service.

3. Brief facts of the case are that Messrs Muhammad Nawaz No. 364 (List C‑l) alongwith Constable Muhammad Ashraf (appellant) as well as Muhammad Nasrullah, Saifullah were detailed for duty to escort Ashiq son of Nazir, Iqbal son of Bashir, Malik son of Bashir, Iqbal son of Muhammad Din and Bashir son of Autoora accused in case F. I. R. No. 155, dated 16th July, 1978, under section 302/307/148/149/., P. P. C., P. S. Toba Tek Singh and in some other cases under Arms Ordinance, from Central Jail, Faisalabad to the Court of Ilaqa Magistrate, Toba Tek Singh, the following day. The accused were duly transported and produced before the Magistrate and when they had to be brought back to the Jail. Constable Muhammad Nawaz who was Incharge of this Force decided to travel by Chenab Express from Toba Tek Singh leaving at 2‑30 p. m. for Faisalabad. All the accused and the persons were seated in the boggy next to the Railway Engine. Soon after the departure of the train, consta ble Muhammad Nawaz, Incharge Guard, gave the handcuff of the Ashiq accused to constable Nasrullah and directed him to release one hand of Ashiq accused from the cuffs who did so, both knowing fully well that Ashiq accused was a desperate and hardened criminal. Ultimately it resulted into an attack by the supporters and nefarious persons and the accused were successful in escaping from the custody of the Police. The depart mental enquiry was conducted by the Deputy Superintendent of Police who held all the accused guilty of the act and the matter came before the Superintendent of Police, Faisalabad. The Superintendent of Police, Faisalabad, in his detailed judgment, dated 13th September, 1980, found Muhammad Nawaz, ring‑leader and main culprit in this case and categori cally held that this escape had resulted with the connivance of Ashiq a person with whom he had good relation in the past. Resultantly the S. P. dismissed all the three constables viz. Muhammad Nawaz, Muhammad Asbraf and Nasrullah. The case of Saifullah seems to have been distin guished as he received injuries by stabbing while resisting the escape of the prisoners. The appeals of all the three accused were rejected by the D. I.‑G. Police. Sargodha Range. Later on the Additional Inspector -General of Police, Punjab, separately took up the case of all the three accused and rejected the appeal of the appellant as well as that of Nasrullah vide his order, dated 1st March, 1983 and re‑instated Muhammad Nawaz Constable, who was Incharge of the guard, but forfeited his 2 years approved service. It was also observed by the Additional Inspector- General of Police Punjab, that the period during which the said Muhammad Nawaz, remained dismissed, shall be treated as leave of the kind due to him. Hence this appeal.

4. We have heard the parties at length and persued the record so produced before us with their assistance.

5. Learned counsel for the appellant has vehemently argued before us by submitting that the S. P. Faisalabad in his detailed order has laid the entire blame of this unfortunate episode/incident on Constable Muhammad Nawaz incharge‑Guard and has gone to the extent to observe that he had friendly relations with Ashiq a desperate criminal and he had been posted as detective constable in his Ilaqa and it was he, who ordered Nasrullah to release one of the hand‑cuff of the prisoner and thus enable him to make attempt to make escape. The grievance of the learned counsel for the appellant is that although no particular role has been assigned accept that of vicarious liability of the appellant, but he has been visited by major penalty of dismissal and it is an act which would be highly discrimi natory in nature and unjustified.

6. On the other hand learned District Attorney has submitted that the case of Muhammad Nawaz cannot be clubbed with the case of Muhammad Ashraf as Muhammad Ashraf bad only 4 years of service whereas Muhammad Nawaz had a 25 years long service and may be at the verge of retirement a fact which might have persuaded the Additional Inspector‑General of Police to take a lenient view on this ground alone.

7. We have given our anxious thought to the arguments so advanced by the parties before us and find that the learned District Attorney has not been able to show to us that the gravity of offence of Muhammad Nawaz did call for mitigating circumstances on any other ground except that he has 25 years service at his credit. We have carefully taken into consideration the detailed judgment of the Superintendent of the Police as well as short order of D. I.‑G. Police and feel that if the case of the appel lant would have been placed before the Additional Inspector‑General of Police at the same time when he was hearing the case of Muhammad Nawaz, he might have arrived at a different conclusion vis‑a‑vis the appellant, than the one he has arrived at in this case.

8. In view of these circumstances and lucid judgment of the Superin tendent of Police, we remand the case of the appellant to the Additional Inspector‑General of Police with the observation that he would place before himself the case of Muhammad Nawaz already decided by him and will give due consideration once again to the case of the appellant. We will also observe that this will give an opportunity to the Additional Inspector General of Police to give some reason for letting off Muhammad Nawaz so lightly in order to enable this Tribunal to see whether the main culprit could be let off so lightly or not.

9. With these above observations we accept the appeal, set aside the impugned order, dated 23rd February, 1983, passed by the Additional Inspector‑General of Police, and remand the case to him to reconsider the case of the appellant in the light of the above observation. However, there will be no order as to costs.

M.I accepted. Case remanded.

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