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Case No. 529/871 of 1984, decided on 13th March, 1985.

‑‑‑ Disciplinary action‑‑Bias‑‑Officer conducting preliminary enquiry‑ Subsequently acting as authority and imposing penalty‑‑Objection that having recorded difinite views in preliminary enquiry such officer could not act impartially and pre‑judged the case‑‑Objection upheld.

‑‑‑S. 4‑‑Disciplinary action‑‑Superintendent of Jail (appellant) awarded penalty of stoppage of increments for 2 years on charge of negligence resulting in escape of condemned prisoners‑‑Appellant simply holding additional charge of prison concerned and handing over charge to regular incumbent prior to alleged incident of escape‑‑Escape directly result of negligence of those on duty at relevant time and appellant having already handed over charge had nothing to do with physical escape being in no way connected with supervision of concerned Jail‑‑Tribunal, in circumstances, accepting appeal and setting aside impugned penalty order.

Masud Ahmad Riaz for Appellant.

A.G. Humayun, District Attorney for Respondents.

. ‑‑Syed Saadat Ali Shah, Superintendent Jail, Kasur, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974 in which he has impleaded the Inspector‑General of Prisons, Punjab, Lahore and the Secretary to Government of the Punjab, Home Department, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the impugned orders dated 1‑12‑1983 as well as 3‑6‑1984, be set aside and the appellants increments for two years be restored.

3. Brief facts of the case are that while the appellant was posted as Superintendent, Borstal Institute and Jail, Bahawalpur, he was directed by letter, dated 7‑5‑1981, to take over the additional charge of the post of Superintendent, New Central Jail, Bahawalpur, as Kh. Nazir Ahmad had retired. Consequently the appellant held the charge for the period from 7‑5‑1981 to 16‑6‑1981. He was once again entrusted with the additional charge for the period from 23‑6‑1981 to 6‑7‑1981, After the appellant had handed over the additional charge an incident of escape of 9 condemned prisoners took place in New Central Jail, Bahawalpur. At the relevant time Mr. Ghulam Sarwar Lalwani was Superintendent Jail. However, preliminary enquiry was held by Mian Shaukat Mahmud the then D.I.‑G. Prisons with regard to the escape so occurred in that Jail. He submitted his detailed report with regard to the incident and narrated in paragraphs 2 and 3 of the report, the actual facts which led to the escape. However, another enquiry was held by S.P. Bahawalpur who submitted his report dated 20‑9‑1981 to the I.G. Police and I.‑G. Prisons. With this background the appellant was called upon to explain his conduct vide letter dated 24‑11‑1981 to which he submitted detailed explanation dated 22‑12‑1981, in which he narrated that he had nothing to do with the case which was directly result of negligence of the Superintendent and the staff who was then working in that Jail, at the relevant time. Respondent No.1 issued charge‑sheet and Statement of Allegations to the appellant, to which he replied and denied all the charges so levelled against him. Ultimately the appellant was imposed minor penalty of stoppage of increments for two years without further effect. However, the appellant was supplied with a copy of enquiry report submitted by Ch. Nasir Ahmad, DA.‑G. The appellant was served with a show‑cause notice, dated 5‑11‑1983 to which he submitted his reply on 15‑11‑1983, and the appellant was again awarded the same penalty. The appellant submitted a departmental appeal dated 3‑1‑1984. He was given personal hearing and ultimately his said appeal was rejected by final order dated 3‑6‑1984 which was received by the appellant on 5‑6‑1984. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.

5. It will be useful to reproduce the Statement of Allegations which we will later on analyse whether the charges so levelled are proved or not. However, a preliminary objection has been raised in the case of Ghulam Sarwar Lalwani, which is legal in nature and is likely to affect the merits of this case also. The objection precisely is that Mian Shaukat Mahmud had conducted preliminary enquiry in this case and had come to the conclusion that the appellant as well as Ghlam Sarwar Lalwani were guilty of certain omissions and commissions which had resulted in the escape of 9 condemned prisoners. According to the learned counsel for the appellant, at the time when the case became ripe through another regular enquiry conducted by Ch. Nasir Ahmad, D.I.‑G., Ch. Shaukat Mahmud by that time became Inspector‑General of Prisons and this was called upon to act as Authority. It has been submitted in the beginning as Enquiry Officer would not be in a position to give unbiased judgment when he was called upon to act as Authority. According to the learned counsel for the appellant Mr. Ghulam Sarwar Lalwani submitted that act of proprietary demands in the interest of justice and fairplay that Ch. Shaukat Mahmud should not act authority in this case and should have referred the matter to the Home Secretary Government of the Punjab or a person so senior to him not equivalent to decide the case. In this manner it has been argued that the impugned order passed by the authority was liable to be set aside on this score alone and case be remanded to some senior or equivalent Authority other than Mian Shaukat Mahmud to decide the case on merits

Statement of Allegations:

(i) That while posted as Superintendent, New Central Jail, Bahawalpur from 8‑5‑1981 to 16‑6‑1981 and 23‑6‑1981, to 5‑7‑1981 you failed to provide for the care, custody and control of all prisoners confined in the Jail, to maintain order and discipline amongst the prisoners and the subordinate officers and also to take such measures as were necessary or expedient for the proper protection and management of prison and prisoners and also enforcement of all relevant rules, regulations and orders issued from time to time. You also showed cowardice in handling the notorious prisoners. Thus, you acted in violation of the provisions of rules 940(ii) and 1095(e) of P.P. Rules.

(ii) You were required to adopt all sorts of precautionary measures to prevent escape. Being Superintendent Jail, you were the sole judge of measures necessary for the safe custody of prisoners. You were also responsible to see that the precautions taken were reasonably sufficient for the purpose. But you failed to do so which at last resulted into the escape of nine condemned prisoners on the night of 11/12‑7‑1981. Thus, you contravened the provisions of rules 970 and 971 of P.P. Rules.

(iii) Being Superintendent of a Central Jail, you were required to see every prisoner once in every two days and also to hold a weekly parade of prisoner in the prison ordinarily on Saturday but you failed to do so. Thus, you did not comply with the provisions of rules 943 and 955 of P.P. Rules.

(iv) While holding the charge of New Central Jail, Bahawalpur, you were not making surprise night rounds of that Jail, as required vide rule 945 of P.P. Rules to ensure that the rules and orders to secure safe custody of prisoners were being observed.

(v) Yogi as a Superintendent Jail failed to ensure that the provisions of rule 336, 338(ii), (iii), 339(ii), 340(i) and (ii), 342, 723(iii), 1021, 563, 721, 1166, 1168, 724, 1034(i) and (ii), 1146, 728, 717, 1228 1004(i) and 1008(i) were not being complied with as narrated in the statement of allegations.

(vi) You failed to perform your duties as Superintendent Jail as required of you under the Rules and thus contravened the provisions of Rules 1084 and 1095(f) of Pakistan Prisons Rules.

6. With regard to the merits of the case learned counsel for the appellant has relied on the judgment given by this Tribunal in case of Aftab Ahmad Cheema, which according to the learned counsel for the appellant was identical its nature and point of law plus the facts involved were the same. It was submitted that Aftab Ahmad Cheema was also Assistant Superintendent Jail of this very Jail where escape took place but on the date of escape he had been transferred to Bahawalpur Borstal and Juvenial Jail, therefore, this was not of his fault but it was the fault of those who were present at the Jail. It was further pointed out in the said case that no appeal had been filed by the Government before the Supreme Court of Pakistan and the judgment being now final judgment was to be followed in the present case also as Aftab Ahmad Cheema had been reinstated in service by the respondent Government and is working now‑a‑days at Rajanpur Jail.

7. With regard to the charges so levelled against him it has been submitted that all the charges have been fully explained but the Authority as well as the Enquiry Officer had not taken into consideration the plea advanced in defence of the said charges. Learned counsel for the appellant has relied on the observation of this Tribunal and has mentioned the same in para 14 of the said appeal. While concluding the arguments learned counsel for the appellant has submitted that the appellant had 23 years of service with unblemished record and also was admitted in the impugned order that the appellant was extremely honest. A grievance has been made that the Enquiry Officer neither relied on the explanation nor testimony of Allah Ditta and others despite the facts that no personal hearing was afforded by the Authorised Officer ‑at any stage with the result that his order became arbitrary. Although the learned counsel for the appellant has not urged the point of bias on the part of the Authority yet in para. 19 of his appeal he has submitted as under:‑

"Mian Shaukat Mahmood had already held preliminary enquiry and pre‑judged the case, by recording definite views, he could not act as an impartial Authorised Officer."

8. On the other hand learned District Attorney has adopted the comments of the Department submitted by Mr. Shaukat Mahmood Inspector‑General of Prisons, Punjab, and has prayed that the minor penalty so imposed upon the appellant be maintained.

9. We have given our anxious thought to arguments advanced by the parties and have also taken into consideration the judgment of this Tribunal in case Aftab Ahmed Cheema v. Government of Punjab, which as now attained finality. In Aftab Ahmed Cheema's case which was also a case of identical nature. Mr. Shaukat Mahmud, who was Deputy Inspector‑General of Prisons at the relevant time, had visited the Jail on 13‑7‑1981 and after examining statements of 37 prisoners, 30 warders and five officers, concluded his inquiry. According to the report of the said Enquiry Officer, nine condemned prisoners were confined in three contiguous cells 13, 14 and 15 on the night of escape. Warder Muhammad Bashir and Muhammad Sadiq were guarding this cell block comprising 15 cells. Sometime at night in between 10 p.m. to 2 a.m. they broke open the common walls of their cells bricks of which appear to have been loosened earlier with the help of iron rod commonly used in the factory. Then they assembled in cell No. 15 from where they made a hole in the side wall and crept into the gallows enclosure adjacent to cell No.15. Then they scaled over the gallows enclosure and entered the factory by climbing over a slanting tree close to factory wall. Thereafter, they broke open to the lock of 'durree shed' and removed two long bamboos, wooden clubs and about ten feet rope to make an improvised ladder. These articles were used for manufacturing of 'durrees' in the factory. They improvised a ladder, come out of the factory area and posted the ladder against the main wall at a distance of 330 feet from watch tower No.2 which was unmanned and 230 feet from watch tower No.3 where an armed Sentry was present. It was about 1‑30 a.m. at that time. They scaled over the main wall from this point by threatening the warders on duty at beat Nos. 2 and 3 by firing some shorts in the air who did not blow their whistles out of fear and nervousness. The sentry on watch tower did not make use of his rifle 303 on account of his slackness and lack of training in the use of fire arms. The warders blew their whistles after the prisoners had crossed over the main wall. Enquiry Officer has pointed out that convicts Muhammad Saleem and Muhammad Iqbal went to the block of condemned prisoners to distribute Sehri at about 1‑15 as per routine. Convict Muhammad Saleem went into Cell No. 15 but there was no one inside it and the cell was broken. The Cells Nos. 13 and 14 presented the same scene. One of the warders on duty was sleeping and the other was slack. He apprised the warders of the situation and thereafter they raised the alarm by blowing their whistles. It has been further observed by the Enquiry Officer that the first alarm was raised by the warders in the condemned prisoners cell at 1‑15 a.m. while the escapes crossed the main wall at 1‑30 a.m. In fifteen minutes the whistles were being blown and nothing was done by the staff on duty to prevent the escape. At 1‑35 a.m. the staff began assembling at the main gate and by that time the escapees had gone far away.

10. We in our judgment in Aftab Ahmed Cheema case held that this complete narration of the entire incident will clearly show that the escape took place due to negligence of the persons who were Incharge of the Cells at the relevant time and lethargic and coward behaviour of the Sentry who did not use the arm although they were provided with the same. It has also been established by the spot inspection that the hardened prisoners had broken their cells by using iron bars and other means at their disposal to free themselves and to make good their escape. In view of the above, it stands fully established that the appellant had nothing to do with physical escape of the condemned prisoners as he was in no way connected with their supervision as he had been posted out side much earlier than the incident took place. Similarly there is not an iota of evidence to show that the appellant had any relation or connection with the said escapees or was instrumental in providing them the means of escape. It could not be denied that when the escape took place the persons Incharge of the said Jail were different persons than the appellant and the appellant had severed all sort of connections with the said Jail due to his transfer.

11. In view of this finding, which fully applies to the case of the appellant we cannot hold him guilty of the charges so levelled against him. We are fortified in our finding with the following facts also:‑

(1) That the Deputy Superintendent and Assistant Superintendent concerned effected search of the prisoners as is clear from Report Book and Search Register. Appellant particularly checked the condemned prisoners' Block Nos. 15 and 21 and found that they were strolling with hand cuffs on 1‑7‑1981. They were not taken out for definite period. Urdi of dangerous and notorious prisoners was being changed regularly and daily by the Deputy Superintendent and Assistant Superintendent concerned which was confirmed from Chart appended as Annexure 'B' with the Report of Mian Shaukat Mahmud.

(2) It is a fact established on record that the appellant was Grade‑17 officer and the post of Superintendent Jail carried Grade‑18. The work load of both the Jails was so heavy that it was not practicable to carry out functions of both the Jails at one and the same-time according to each and every provision of Jail Manual. According to Rule 950 Jail Superintendent is required to attend his office for 6 hours whereas appellant spent 10 hours a day in the office of both the Jails. He had been making regular round in the Borstal Institute and occasional round inside the Central Jail as well. It is also on record that he attended weekly Saturday parades of prisoners at Central Jail on 9‑5‑1981, 23‑5‑1981, 13‑6‑1981, 27‑6‑1981 and 4‑7‑1981 and made round of the condemned prisoners blocks on 11‑5‑1981, 18‑5‑1981, 25‑5‑1981, 1‑6‑1981, 29‑6‑1981, 30‑6‑1981 and 1‑7‑1981 and also visited other barracks. Mr. Nasir Ahmed, D.I.‑G. (Prisons) also paid visit to the condemned prisons on 30‑6‑1981 but nothing objectionable came to his notice and nothing was pointed out by him. No complaint was made by any prisoner or staff member against Jail administration. Deputy Superintendent. Assistant Superintendent were making daily round inside the Jail apart from the abovementioned visits made by the Superintendents.

(3) The escape took place on the night of 11/12‑7‑1981 a week after appellant's handing over charge to Mr. Ghulam Sarwar Lalwani, not due to slackness of any warder but active participation/ collaboration /collusion of warder Muhammad Bashir on duty with the escapes. One officer and 4 members of warders‑guard had been making night rounds every night regularly in rotation but no warder was found asleep on duty as per their reports in the night report book during appellant's time. Appellant was living quite away from the New Central Jail and was extremely tried due to prolonged day duty at two Jails but still he made night round on 5‑6‑1981 and 10‑6‑1981 at New Central Jail, Bahawalpur.

(4) An affidavit of the appellant further discloses that during his charge of Central Jail, Bahawalpur, no untoward incidence like escape happened. The discipline of the Jail was well‑maintained. To further strengthen the administration he withdrew three warders from Borstal Jail and posted them to New Central Jail. Besides this, he posted two Head Warders over condemned prisoners instead of one. Likewise he manned five watch towers instead of three as was being done previously. That no arms or implements to facilitate escape were smuggled in during his period of Additional charge of the New Central Jail, Bahawalpur. That he got Abdul Ghani, Senior Assistant Superintenent Jail who had previously held charge of the condemned prisoners at New Central Jail, Bahawalpur, posted back to New Central Jail, Bahawalpur from Multan by making a special request to the Inspector‑General of Prisons, Punjab. He handed over the charge of New Central Jail, Bahawalpur to Ghulam Sarwar Lalwani in good condition as there is nothing on the report of said Ghulam Sarwar Lalwani that when he took over the charge the discipline was in bad order.

12. In view of the above analysis of the case, we proceed to accept the appeal set aside the impugned orders in so far as the appellant is concerned. However, there will be no order as to costs.

A.E.

Appeal accepted.

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