1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHRY (CHAIRMAN).‑‑The facts necessary for the disposal of this appeal are that the appellant joined Punjab Police as a constable. And while posted as A.S.I. at P.S. Sangla Hill the authority decided to proceed departmentally against him. The appellant was served with a show‑cause notice dated 29‑2‑1984 and the relevant portion of this show‑cause notice reads as under:‑ You, A.S. I. Lal Khan No.44/L (under suspension) while posted to P.S. Sangla Hill, recorded D.D. Entry Nos. 19 and 20 dated 16‑2‑1984 at 5‑30 p.m. and 5‑40 p.m. respectively about the arrival and departure of Inspector Abdul Ahad No.GL/63, S.H.O. P.S. Sangla Hill in your hand. You failed to mention the return of Const. Faqir Hussain No.308 in entry No.19 and also failed to get the two entries signed by the said constable in token of their correctness. You had yourself moved out of the Police Station vide Entry No.24 which is not signed in token of its correctness by Const: Muhammad Aslam No.645 and Const: Muhammad Alam No.725 who accompanied you as per this entry. You had, allegedly, physically came to the Police Station but had not recorded your arrival in the Daily Diary. This culpable carelessness, negligence, lack of supervision over the subordinates, inefficiency and misconduct resulted in the escape of Abdul Hamid alias Hameedi and his brother Rafique, notorious desperadoes, from the lock‑up of P.S. Sangla Hill vide Case F.I.R. No.29 dated 17‑2‑1984 under sections 223, 224, 332, 353, P.P. C. and 17‑6‑1979 Islamic Law P.S. Sangla Hill."

2. The appellant submitted reply thereto and denied the charges. The appellant pleaded that he received the news to the escape of Abdul Hameed alias Hameedi and his brother Rafique while he was on way to Police Station from 'Naka Bandi' in the early morning of 17‑2‑1984. The respondent No. 1, after the receipt of reply to this show‑cause notice, proceeded to issue another show‑cause notice, dated 1‑4‑1984. The allegations were the same but appellant was called upon to show‑cause why his name should not be removed from list 'D' and he be reverted to the rank of Head Constable. The appellant duly replied to this show‑cause Notice too. The respondent No.l vide order dated 14‑5‑1984 proceeded to hold that the appellant is not fit to be retained in his officiating rank of A. S. I. and revert the appellant to the rank of Head Constable while in the proceedings initiated through the earlier show‑cause notice the pay of the appellant was reduced by two stages. The appellant impugned the orders of the respondent No.l through two separate appeals before the respondent No.2 who rejected both the appeals, vide order dated 30‑1‑1986.

3. The appellant thereafter, filed the present appeal on 15‑4‑1986. It was submitted that the order of the respondent No.2 was received by the appellant on 29‑3‑1986, therefore, the appeal is within time. The appellant has impugned both the orders of the D.I.G. through this appeal. The appeal was admitted to regular hearing on 6‑5‑1986. The respondents have filed parawise comments/ written objections and they are represented by A.G. Humayun, District Attorney while Mr. Yousaf Ali Khan, Advocate appeared on behalf of the appellant.

4. The learned counsel for the appellant submitted that the appellant was confirmed A.S.I. and wrongly treated as Officiating A.S.I. The other contention of the learned counsel for the appellant is that the secret enquiry held at the back of the appellant cannot be made basis of the impugned orders. Thirdly, it is submitted that the Incharge of the lock‑up although served with show‑cause notice, yet not been arrested. Therefore, there is no justification legal or otherwise to award punishment against the appellant. Lastly, it is submitted that the appellant was not at all present at Police Station at the time of escape of the dangerous criminals, therefore, he cannot be held responsible for the same.

5. On the other hand, the learned D.A. has raised a preliminary objection to the effect that the appellant should have filed two appeals separately against the departmental proceedings initiated against him through two independent show‑cause notices dated 29‑2‑1984 and 1‑4‑1984 respectively.

6. We have considered the preliminary objection of the learned District Attorney but find no merit in the same for the simple reason that both the departmental appeals of the appellant were dismissed on 30‑1‑1986. Therefore, he could have filed an appeal against both orders. Even otherwise the appeals being in time against both the orders the same cannot be thrown on the ground of misjoinder.

7. The learned counsel for the appellant elaborated his first argument by saying that the appellant was promoted as A.S.I. on 14‑2‑1982 and he was to remain on probation for a period of two years. Since neither the period of probation was extended nor appellant reverted, therefore, according to the instructions of I. G. dated 20‑8‑1969, the appellant will be deemed to have been confirmed automatically. The relevant portion reads as under:‑ It has also been held by a Division Bench of the High Court in a writ/filed by S.I. Qamar‑uz‑Zaman Siddiqui of Lahore Range that where an order either confirming or reverting a Police Officer is not passed by the competent authority within the period of probation, he shall stand automatically confirmed in his appointment on the expiry of probationary period vide Police Rule 13.18." The learned District Attorney on the other hand submitted that there is no specific order of confirmation, the appellant cannot be deemed to have been confirmed as A.S.I.

8. There is a considerable force in the assertion of District Attorney in view of the latest decision of Supreme Court on the point. It has been laid down by Supreme Court that a civil servant does not become automatically confirmed after the expiry of period of probation S C M R 1987 page 156, but in this case the confirmation of the appellant is not so material as otherwise the order of reversion of appellant to Head Constable is illegal and untenable in law.

9. We have given deep thought and made appraisal of the circumstances and we are of the considered opinion that the appellant could not be punished twice for the same default or lapse. The Constitution of Pakistan expressly provides protection against double punishment and self‑incrimination. It is enshrined in section 13 of the Constitution that no person shall be prosecuted or punished for the same offence more than once. In our opinion the appellant once having been punished in reduction of his pay about which we revert later on could not be reverted as Head Constable. Hence we hold that the reversion order of the appellant to the substantive post of Head Constable is without lawful authority and consequently we set aside the same.

10. As regards the punishment of reduction in pay awarded to the appellant, the appellant's presence out of the Police Station at relevant time is not proved. We, however, feel that when the appellant came to know of escape of desperadoes he should have acted with promptitude and rushed to the Police Station forthwith. The appellant is neither directly nor indirectly responsible for the escape of under trial person, therefore, he could not be punished. Consequently the appeal of the appellant is accepted and impugned orders are set aside. However, there is no order as to costs. 165/Sr.P Appeal accepted.