P L D 2021 Balochistan 87
Before Abdul Hameed Baloch, J
MUHAMMAD NAWAZ ---Petitioner
Versus
The STATE--- Respondent
Criminal Revision Petition No.(s) 11 of 2021, decided on 3rd May, 2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 223, 224 & 120- B---Escape from confinement or custody negligently suffered by
public servant, resistance or obstruction by a person to his lawful apprehension, criminal
conspiracy ---Appreciation of evidence ---Acquittal of co -accused ---Scope ---Prose cution case
was that due to negligence of officials deputed on duty, accused managed to flee away by breaking the locks ---Prosecution had failed to produce an iota of evidence to show that the
accused was custodian of the lock up--- None of the ocular witne sses stated that the accused
was in charge of the lock up---Accused was convicted on the basis of inquiry report ---
Opinion of inquiry officer was not binding upon the Court ---Prosecution had even failed to
produce the register wherein the accused -official and others were entrusted with the duty of
securing the lock up---Initially eight employees were arrested, whereafter five of them were
discharged under S.169, Cr.P.C. and were released on the direction of the high ups; while
two accused persons were acqui tted by the Trial Court ---If the prosecution story was
accepted then it could be said that only the accused- official was on duty which by itself was
enough to create doubt regarding the authenticity of prosecution case ---Revision petition was
accepted and the accused was acquitted of the charge, in circumstances.
Muhammad Nawaz v. The State PLD 2002 SC 287; 2021 SCMR 612 and Saifullah v.
State 2018 MLD 751 rel.
(b) Penal Code (XLV of 1860)---
----S. 223 ---Escape from confinement or custody negligently suff ered by public servant ---
Proof of negligence ---Scope ---Prosecution must prove that whoever being public servant was
legally bound to keep in confinement any person charged with or convicted of any offence or
lawfully committed to custody, negligently suffe red such person to escape from confinement,
meaning thereby that the prosecution must prove the escape made by negligence of public servant ---Mere proving that the accused person was on duty does not constitute the offence
in the absence of evidence of negligence.
(c) Words and phrases ---
----"Negligence" ---Meaning.
Failure to exercise the standard of care that a reasonably prudent person would have
exercised in a similar situation; any conduct that falls below the legal standard established to
protect ot hers against unreasonable risk of harm, except for conduct that is intentionally,
wantonly, or willfully disregardful of others' rights. Term "negligence" denotes culpable carelessness.
Black's Law Dictionary rel.
(d) Criminal trial ---
----Appreciation of evidence ---Where there are two possibilities, one which favours the
accused will be accepted because the accused is favourite child of law.
(e) Criminal trial ---
----Evidence ---No one can be convicted on the basis of presumption---Presu mption how
much strong, cannot take place of legal evidence.
Saifullah v. State 2018 MLD 751 rel.
Ahsan Rafiq Rana for Petitioner.
Abdul Karim Malghani, State Counsel for Respondent.
Date of hearing: 26th April, 2021
JUDGMENT
ABDUL HAMEED BALOCH, J. ---The petitioner assailed impugned judgments
dated 29th January, 2021 and 19th February, 2021 (impugned judgments) passed by Judicial Magistrate Dhadar and Additional Sessions Judge, Bhag at Dhadar (trial and appellate court) whereby the petitioner was conv icted under section 223 Pakistan Penal Code (P.P.C.) and
sentenced to suffer one year's rigorous imprisonment with fine of Rs. 5000/ - and in default to
further undergo one month simple imprisonment. Benefit of section 382- B, Cr.P.C. was also
extended in fa vour of the petitioner/convict and appeal filed against his conviction was also
dismissed.
2. Facts of the case in brief are that on 24th June, 2020 case vide FIR No. 20 of 2020
under sections 223, 224, 120- B, P.P.C. was registered with Police Station Dhad ar District
Kachhi on the written report of Nazeer Ahmed Sial SI/SHO Police Station Dhadar with the allegation that due to negligence of the officials deputed on duty the accused Muhammad Ramzan of FIR No. 19 of 2020 under section 9(c) CNSA 1997 in between the night of
23rd/24th June, 2020 managed to flee away by breaking the locks of lockup.
3. After registration of FIR the petitioner and co- accused were arrested and on
completion of investigation the challan of the case was submitted before the trial cour t. After
full dress trial the petitioner was convicted by the trial court in the manner as mentioned in
para- 1 above vide impugned judgment, whereas co- accused were acquitted of the charge.
Being dissatisfied the petitioner/ convict preferred appeal before appellate court, but same
was rejected vide order dated 19th February, 2021, hence this revision petition.
4. Heard and perused the record. The prosecution in order to substantiate the accusation
besides complainant produced nine witnesses. PW -2 Khuda -e-Dad Head Constable is witness
of recovery of two tools and one broken lock vide Ex: P/2- A. PW -3 Naseer Ali, PW- 4 Amir
Khan, PW -5 Maro, PW -6 Ghous Bakhsh are ocular witnesses. PW -7 Kahair Khan produced
suspension order of accused persons as Ex: P/7 -A, duty l ist 23rd/24th June, 2020 of Police
Station Dhadar P/7- B, CDR as Ex: P/7 -C. PW -8 Inayatullah DSP Bhag Enquiry Officer. PW -
9 Imam Bakhsh temporary in- charge Police Station Dhadar. PW- 10 Muhammad Yaseen ASI
Investigating Officer. The witness deposed that on 29th June, 2020 on departmental direction accused Muzafar Hussain and Tanveer Ahmed were discharged and released under section 169, Cr.P.C. for insufficient evidence. Thereafter, accused Muhammad Yaqoob and Rehmatullah were also released under section 169, Cr.P.C. On direction of department
accused Nasrullah was released. It would be appropriate to reproduce section 223, P.P.C. for ready reference:
"223 P.P.C.: Escape from confinement or custody negligently suffered by public servant. Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffers such persons to escape from confinement, shall be punished with simple impr isonment for a term which may extend to two
years, or with fine, or with both."
5. Under the above referred section the prosecution must prove that whoever being
public servant is legally bound to keep in confinement any person charged with or convicted of any offence or lawfully committed to custody, negligently suffers such persons to escape
from confinement, meaning thereby that the prosecution must prove the escape made by negligence of public servant. Mere proving that the accused person was/were on duty does not constitute the above referred section in absence of evidence of negligence. The word `negligence" is defined in Black's Law Dictionary as under:
"negligence, n. (14c) 1. The failure to exercise the standard of care that a reasonably prudent pe rson would have exercised in a similar situation; any conduct that falls
below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights. The term denotes culpable carelessness. The Roman -law equivalents
are culpa and neglegentia, as contrasted with dolus (wrongful intention)."
6. As per prosecution PW -3, PW -4, PW -5 and PW -6 furnished ocular testimony. None
of them stated that the accused of FIR No. 19 of 2020 under section 9 (c) CNSA, 1997 has
broken the lock of lock up and run away due to negligence of accused and acquitted accused. Reliance is placed on case Muhammad Nawaz v. The State PLD 2002 SC 287, wherein it was held:
"7. I n view of the abovementioned observations as made by the learned trial and
Appellate Courts, the petitioner alone cannot be held responsible for the escape of
prisoner Saifullah. As mentioned hereinabove that no incriminating evidence is available on the basis whereof it could be inferred that the petitioner was responsible for the episode. It is to be noted that the provisions as contained in section 223, P.P.C. were neither considered nor appreciated in its true perspective, which resulted in serious misc arriage of justice. The provision as enumerated in section 223, P.P.C.
were discussed in case titled Muhammad Yaqoob v. The State (PLD 2001 SC 378) as follows:
"The main prerequisite in absence whereof the provisions as contained in section 223, P.P.C. ca nnot be pressed into service is that the accused 'must negligently suffer such
person to escape'. It is the bounden duty of the prosecution to prove the 'negligence' of a public servant, which has resulted in such escape. We may mention here that during de partmental proceedings initiated under Service Laws, the factum of
'negligence' has its own peculiar characteristic. There is no cavil to the proposition that negligence is a term of art having multiple dimensions in different jurisdictions. It, however, c an be defined as 'the omission to do an act, which a reasonable man,
guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing an act which 'reasonable and prudent' man would not do. 'Negligence' is the absence of such care, skill and diligence as it was the duty of the person to bring to the performance of the work which he is said not to have performed. There are three degrees of negligence: (1) ordinary which is the want of ordinary diligence, (2) slight : the want of great diligence, (3) gross: the want of even
slight diligence (Kedarnath v. State 1965 All. 233 + Nemichand v. Commissioner, Nagpur Division, Nagpur, ILR 1947 Nag. 256: 228 IC 525: 1947 NU 281). The
factum of negligence as discussed hereinabo ve can be taken into consideration and
negligence may be proved on the basis of presumption or surrounding circumstances while taking disciplinary action, but in criminal proceedings definite and concrete evidence would be required to prove the factum of negligence which is lacking in this case."
7. The record reflects that two other accused faced trial with the appellant, but the trial
court disbelieved the statement of ocular account in regard of two accused and acquitted them of the charge. The case of t he appellant stands on same footing. For conviction of
accused the prosecution should have independent corroboration. On the basis of same evidence the conviction of accused cannot be sustainable without corroboration. Reliance is placed on 2021 SCMR 612, wherein it was held:
"--- We further note that the ocular account of (PW- 9) and (PW -10) has been
disbelieved by the High Court, which we find was rightly disbelieved, against Muhammad Saleem who was alleged to have played a similar role in the occurrence,
and he stands acquitted. Therefore, the same evidence cannot be relied upon to convict Muhammad Idress, unless there is an impendent corroboration of it to the extent of his involvement in commission of the offence. ----"
8. The prosecution has failed to produce an iota of evidence to show that the petitioner
was either custodian of the lock up or lock up was open in the direction of the petitioner.
None of the ocular witness stated that the accused/ petitioner is/was in- charge of the lock up.
In this rega rd no evidence was produced before the trial court. The petitioner was convicted
on the basis of inquiry report. The opinion of inquiry officer is not binding upon the court. Even the prosecution failed to produce the register wherein the petitioner and ac quitted
accused were entrusted the duty of lock up. The judgment of the trial court is based upon
inquiry report. The prosecution was duty bound to prove the factum through independent
evidence and not to influence from the report of inquiry officer. Relia nce is placed on case
Allah Bakhsh v. The State 2007 MLD 39 [Karachi], wherein it was held:
"I have given due consideration to the arguments, gone through the record and found that the learned trial Judge has convicted the appellants solely on the inquiry report
Exh.25- D, prepared by P.W.2 who was D.I.G. Jail at the relevant time. According to
his evidence he conducted the enquiry and submitted the said report. P.W.2 did not specifically state in the evidence that the appellants were on duty at the relevan t time.
The enquiry report is the opinion of the P.W.2 that is not binding upon the Court. During the enquiry P.W.2 must have examined the record and recorded the statements of the witnesses. If the prosecution wanted to prove the case then the material which was placed before the Enquiry Officer should have been produced before the Court so as to form its independent opinion about the allegation. Without such evidence the Court cannot form its independent opinion hence merely on the report of the P. W.2 it
cannot be held that the appellants were on duty at the relevant time. If the appellants were on duty there must have been some record with the prosecution. The said record should have been produced before the Court for examination but no such record has been produced before the Court. Therefore, the learned A.A.- G. was right in saying
that there was nothing before the trial Court to form its independent opinion about the
involvement of the appellants, therefore, he has not supported the impugned judgment."
9. It is to be noted that initially eight employees were arrested. Whereafter, Muzafar
Hussain, Tanveer Ahmed, Muhammad Yaqoob, Rehmatullah and Nasrullah were discharged under section 169, Cr.P.C. and were released on the direction of high ups; while accused Behawal Khan and Sona Khan were acquitted by the trial court vide judgment dated 29th Khan January, 2021. PW -7 Kahair Khan HC examined, who deposed that the acquitted
accused have allowed two ladies and one man to visit the absconding accused Muhammad Ramzan. The prosecution has accepted discharge of above referred person and acquittal of accused. If the prosecution story has to be accepted than it can be said that the petitioner was only on duty which by itself enough to create doubt regarding the authenticity of prosecution story. The prosecution was under legal obligation to prove the case on its own strength and cannot take advantages of any lapse of the defence. In criminal cases where there are two probabilities, which favour the accused will be accepted because the accused is favorite child of law. It is settled principle of criminal administration of justice that no one can be convicted on the basis of presumption. The presumption how much strong cannot take place of legal evidence. Reliance is pl aced on reported judgment of this court tilted Saifullah v.
State 2018 MLD 751 [Balochistan], wherein it was held:
"12. It is, by now, well established principle of law that it is the prosecution, which
has to prove its case against the accused by standin g on its own legs and it cannot take
any benefit from the weaknesses of the case of defence. In the instant case, the
prosecution remained fail to discharge its responsibility of proving the case against the petitioner. There remains no cavil to the propos ition that if there is a single
circumstance which creates reasonable doubt regarding the prosecution case, the same
is sufficient to give benefit of the same to the accused, whereas the instant case is
replete with circumstances which have created serious doubt about the prosecution
story. Even as per saying of the Holy Prophet (P.B.U.H), the mistake in releasing a
criminal is better than punishing an innocent person) Same principle was also followed by the Hon'ble Supreme Court of Pakistan in the case of Ayub Masih v. The State (PLD 2002 SC 1048); herein at page 1056, it was observed as under: --
"…. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy
Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent"
In supra mentioned case of Ayub Masih, the Hon'ble Supreme Court was also pleased to observe as under: --
"... The rule of benefit of doubt, which is described as the golden rule, is essentially as rule of prudence which cannot be ignored while dispensing justice in accordance with the law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted" ..."
In view of above discussion the instant criminal revision petition is accepted. The
impugned judgments dated 29th January, 2021 and 19th February, 2021 passed by Judicial
Magistrate Dhadar and Additional Se ssions Judge, Bhag at Dhadar respectively are set aside.
The petitioner Muhammad Nawaz son of Naik Muhammad is acquitted of the charge pursuant to FIR No. 20 of 2020, under sections 223, 224, 120- B, P.P.C., Police Station
Dhadar District Kachhi. He is on b ail, his bail bonds stand discharge.
SA/106/Bal. Petition accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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