2006 PLP 1948 (SCMR)

KHALIL-UR-REHMAN RAMDAY, J.

Five under-trial prisoners escaped from Mansehra Sub-Jail at about 1-30 a.m. on the night between the 10th and the 11th of July, 2001. The Incharge of the said jail, namely, Muhammad Israil; the Duty Round Officer, namely, Warder Dolat Khan; the Duty Patrolling Officer, namely, Warder Taj Mali Khan; the Duty Sentry at the front main gate of the said jail, namely, Warder, Sultan Afsar and Wardar Hazrat Hussain on duty at the Talashi Gate were charge-sheeted in the said connection. The Superintendent of Central Prison, Peshawar, namely, Muhammad Muzaffar was appointed as the Inquiry Officer, who found all the above-named persons guilty or the charges levelled against them as a consequence whereof the Inspector-General of Prisons, in exercise of the powers conferred on him under section 3 of the N.-W.F.P. Removal from Service (Special Powers) Ordinance, 2000, dismissed the said four Warders from services but punished the Incharge of the said jail, namely Muhammad Israil; Assistant Superintendent, with reduction to the lowest stage in his present time scale.

2. The said four Warders finally reached the learned Service Tribunal, through Appeals Nos.416, 460, 461 and 602 of 2002, impugning the above-noticed punishments awarded to them. Through a judgment of the learned Tribunal dated 9-1-2004 passed in the said appeals, the findings of guilt recorded against them by the competent authority were maintained but the punishments of the dismissal from service were converted into the punishment of stoppage of three increments without cumulative effect. These Warders then approached this Court through Civil Petitions Nos.220-P to 223-P of 2004 which were dismissed vide a judgment dated 11-5-2005, thus affirming the said findings of guilt recorded against them.

3. In the matter of Muhammad Israil respondent, the learned Tribunal, however, chose to take a different view of the matter through the impugned judgment, dated 8-7-2004; accepted the appeal filed by him; exonerated him of the said charges and consequently set aside the punishment recorded against him.

4. Hence this petition by the Inspector-General of Prisons and the Home Secretary of the N.-W.F.P.

5. Muhammad Israil respondent, who is present under notice, has been heard in some detail through his learned counsel. The learned Advocate Supreme Court for the petitioners has also been heard and we have also perused the record in the light of the submissions made before us.

6. It had been found by the above mentioned Inquiry Officer that Warder Sultan Afsar was not present at the place of his duty i.e. at the front main gate of the jail at the time of the incident and it' he had not left his place of duty, the incident in question may not have taken place. It had also been found by him that the place of duty Warder Hazrat Hussain at the relevant time was at the Talashi Gate which was adjacent to the room where the escapees were confined and only iron bars separated the said two places and further that if the said Warder was present at the place of duty at the time in question then the steps taken by the escapees to break open the room could not have gone un-noticed by him. Similar was the findings of the Inquiry Officer with respect to Warders Dolat Khan and Taj Mali who were the Round Officer and the Patrolling Officer respectively at the relevant time.

7. Muhammad Israil respondent was the Incharge of the Sub-Jail in question. As per Rule 1002 of Pakistan Prison Rules, 1978, the expression "Deputy Superintendent" for the purpose of duty included an "Assistant Superintendent" of Jail and every other person who was performing duties of a Deputy Superintendent for the time being. According to the provisions contained in Chapter 41 of the said Rules, such an officer was the Chief Executive of the prison; was not allowed to be absent from the Prison during night without permission in writing of the Superintendent; was required to take every action necessary and expedient, inter alia, for the safe custody of the prisoners; was required to visit every cell and barrack etc. at least once a day and was required to remain always present within the Prison or its premises. He was also charged with the responsibility of maintaining and enforcing discipline amongst the subordinate Officers.

8. The Inquiry Officer had found that Muhammad Israil had been grossly negligent in the discharge of his obligations; that he had failed to maintain and enforce discipline amongst his subordinates and that the breach of his obligations had gone to the extent that none of the Warders who were required to be on duty at the relevant time, were so present or available. According to Rule 724 of the said Prison Rules, the respondent was required to make at least two, surprise night visits every week which had not been done by him as according to jail record, he had made such a visit to the jail only twice during the month preceding the night of the incident i.e. on 11-6-2001 and on 9-7-2001. This was then the level and the quality of performance of the respondent and the manner in which he was discharging his highly sensitive obligation of securing the prisoners.

9. The learned Tribunal set aside the punishment awarded to the respondent on the ground that the jail in question was over-crowded with 280 prisoners instead of the sanctioned capacity of' 148; that due to some hurricane, there was breakdown of electricity in jail which had helped the escape of the prisoners; that the said incident had taken place on account of the negligence of the staff on duty and not on account of any negligence or involvement of' the respondent and finally that the respondent was not on duty in the jail when the said incident had taken place.

10. The case was one where the escapees had broken open the room by cutting the iron wires and was not a case where the hurricane was said to have blown the under-trial prisoners out of the jail. Neither the respondent nor the accused Warders had brought anything in evidence from the record of the electricity department about the duration for which the supply of electricity had remained interrupted on the night of incident. Nevertheless, even if it be presumed, that the electricity had gone off at the relevant time then the same should have put the concerned staff on additional caution and had the relevant officials been present on duty then at least the sound produced by the cutting of wires by the escapees could not have gone un-noticed. The learned Tribunal while shifting the entire burden on to the shoulders of accused Warders, omitted to realize that the respondent was the one who was responsible for the efficient and proper discharge of obligations by his subordinates and any negligence of the staff meant an aggravated negligence on the part of the respondent. He had brought nothing on record to establish that he was not on duty on the night of the occurrence.

11. In the circumstance, the impugned judgment of the learned Service Tribunal absolving the respondent of his liability towards the incident in question, could not be sustained. Needless to add that higher the spot, higher are the responsibilities and graver are the implications and consequences of their neglect. Consequently, we hold that the impugned findings of the Tribunal exonerating the respondent of the charges levelled against him was the result of an apparent error emanating from a gross misreading and misappreciation of the material available on record.

12. Resultantly, this petition is converted into an appeal which is allowed as a result whereof the impugned judgment of the N.-W.F.P. Service Tribunal dated 8-7-2001 passed in Appeal No.487 of 2002, is set aside.

13. This brings us to the question of punishment deserved by the respondent for his above-noticed misconduct.

14. We are conscious of the fact that the competent authority had selected only a punishment of "reduction to lowest stage in his present time scale" for the respondent which punishment should have been ordinarily restored after setting aside the intervening judgment of the learned Tribunal but then we are also conscious of the constitutional obligations cast on this Court to do complete justice in any case or matter pending before it in terms of Article 187 of the Constitution. As has been discussed above in detail, the respondent being Incharge of the Jail in question had suffered escape of five under-trial prisoners from the custody of the State which was a serious matter. We are surprised that despite findings of guilt recorded against the said officer, the competent authority still found him good enough to man the prisons. In our considered opinion, such an officer did not deserve to continue to be in such a service saddled with the high responsibility of ensuring safe detention of prisoners in custody.

15. We, therefore, issued a further notice to the respondent to show cause why the above-noticed punishment awarded to him by the competent authority be not enhanced. Having heard the respondent on the said issue; having considered all aspects of the matter and for the reasons discussed above, we are of the opinion that the least that should have been done in the matter was to retire the respondent from service. A punishment of compulsory retirement from service is, therefore, awarded to the respondent which punishment shall now stand substituted for the penalty imposed on him by the competent authority. It is ordered accordingly.

16. Copies of this judgment shall be sent to the Home Secretary and the Inspector.-General of Prisons of the N.-W.F.P., for information and compliance. M.H./I-16/SC Order accordingly.