1977 PLP 121 (SCMR)

SALAHUDDIN AHMED, J.‑This appeal, by special leave, is from the order of a learned Single Judge of the then High Court of West Pakistan, Lahore, dismissing the appellant's revision petition. The appellant has been convicted under section 223 of the Pakistan Penal Code and sentenced to pay a fine of Rs. 200, and in default to suffer simple imprisonment for three months. The appellant is a Constable. He along with another Constable Ziauddin was asked to escort an under‑trial prisoner to the Court of a Magistrate. According to the prosecution case the under‑trial prisoner was produced before the Magistrate, and while Constable Ziauddin stayed inside the Court‑room to obtain the signature of the Magistrate on the warrant, the appellant took the under‑trial outside the Court‑room and although his both hands were handcuffed he escaped from the custody of the appellant. The only question for consideration before us is whether upon the facts and circumstances of the case it has been proved that the appellant was negligent in his duties and thus suffered the under‑trial to escape from confinement. P. W. Muhammad Ali, Head Constable deposed that he had duly checked the handcuff of the under--trial prisoner. D. W. 1 Sikandar Sultan examined by the appellant in his defence stated that he had noticed the prisoner released his hands from the handcuffs. It is indeed, curious that although this witness could see the under‑trial prisoner busy trying to release his hands, it did not attract the notice of the appellant who was nearest to the under‑trial prisoner and was charged with the duty of keeping him in safe custody. These facts are sufficient to prove negligence on the part of the appellant. Besides, this is a question of appreciation of evidence and no question of law is involved in the case. There is no shifting of onus as has been contended before us. The onus was on the prosecution and the prosecution succeeded in proving the offence against the appellant. For our own satisfaction we had a demonstration made by two Police Constables in Court, and we found it difficult to believe that the handcuff could give way and release the hands of the under‑trial prisoner unless either it had been opened or broken. In the leave granting order this Court had directed that the disposal of the revision petition of co‑accused Ziauddin pending in the High Court should be awaited. We are now told that the revision petition has not yet teen disposed of. In the facts and circumstances of the present case we did not think it necessary to waste more time awaiting the disposal of Ziauddin's revision petition. The appeal is, accordingly, dismissed. Appeal dismissed.