P L D 1983 Lahore 613 (PLP)

Mazhar Hussain, petitioner, and six others are accused of the offences under section 224/225/307, P. P. C. read with section 109, P.'P. C. The case was registered against them at Kotwali, Jhang, on 24.3-1983. Muhammad Khan, Muhammad Ashraf, Riasat Ali, Muhammad Amir, Ashiq Hussain and Muhammad Chiragh accused- applied for bail before arrest before the Sessions Judge, Jhang. By order dated 14-4-1983, their petition was dismissed. They applied for bail after their arrest and, on 16-4-1983, Mr. Muhammad Munir Khan Laghari, Magistrate, Jhang, allowed them bail.

2. During the course of hearing of Mazhar Hussain's petition for bail, I de-.med it proper to issue notices to the aforesaid six accused, who are jail employees, as to why their bail should not be cancelled. My this order will dispose of both matters.

3. It is alleged that four condemned prisoners escaped from the District Jail, Jhang, on the night between 23rd/24th of March, 1983 with the connivance of the jail employees. Mazhar Hussain, petitioner, is a jail warder. He is alleged to have delivered a Dalda Ghee tin to Manzoor condemned prisoner. The tin contained a carbin, some ammunition, a small iron saw (used for cutting iron bars) and some pieces of strings. The petitioner allegedly obtained the empty ghee tin from Muhammad Sharif, a fruit-seller. Manzoor, the condemned prisoner, cut the iron bars of his cell and, thereafter, helped other three condemned prisoners to escape. Muhammad Chiragh, respondent-warder was on duty at the main gate. It was his duty to check every one who went inside the jail. It is alleged that he did not check Mazhar Hussain, Warder. Muhammad Khan, respondent is a Head Warder. He was supposed to check the articles inside the cells of the condemned prisoners and also to search each one of them daily in the evening. He had failed to carry out his duties. His omission is alleged to be be deliberate. Muhammad Ashraf, respondent is a warder who was on duty in the yard in front of cell No. 1 from where the convicts escaped. He could have noticed their escape. However, he is alleged to have connived with the others. It is argued on his behalf that he dozed of to sleep because be had been administered some intoxicant by the condemned prisoners. His defence in itself is a clear violation of the jail rules. Ashiq; respondent-warder was incharge of the keys of the cell locks. It was his duty to keep a watch on the locks. But at the time when the prisoners had escaped, the lock of the cell was opened which bad not been broken open. According to the allegations, it had been opened with the key to facilitate the escape. Muhammad Amir, respondent is a Jail warder. It was his duty to have a general round of the cell at 3-45 a. m. He had noted down in the register that all was well whereas the condemned prisoners had escaped. Riasat Ali, Warder; was on duty on that night inside the jail around the jail wall. It is alleged that he was overpowered by the condemned prisoners and threatened with death and thus they managed to escape.

4. During the course of arguments, learned counsel for the respondents produced a copy of the enquiry report which was held by the Jail Authorities. As it appeared to be incomplete and according to the Investigating Officer, he was not provided with the enquiry report, I directed him to obtain the same and produce it in Court. The Jail Authorities have sent a photostat copy of the report. Even according to this report, all the six respondents have been found negligent in their duties. In the matter before me, the criminality of the omissions of each employee has to be taken into consideration. The overall state of affairs of the Jhang Jail Administration is a matter which has already been taken up by the concerned department. Mazhar Hussain, petitioner-warder, is alleged to have intentionally facilitated the escape of the prisoners by providing them weapons and other articles. Muhammad Ashraf, Warder, had been given something intoxicated supplied by the condemned prisoners, his was a voluntary act which is not covered by the general exception. Muhammad Khan, Head Warder's duty was to check the condemned prisoners but he failed in the discharge of his duties. There was criminality in his omission. Prima facie there would also be criminality in the omission of Chiragh, respondent, who was supposed to check every one at the gate. He did not check Mazhar Hussain, petitioner, who allegedly took inside the jail the tin of Dalda ghee which contained weapons and other implements. In so far as Amir Muhammad's duty was concerned, he is said to have made a report that all was well. Whether it was all well half an hour before his report or later is matter of further enquiry. His case to my mind is distnguishable from the others. So is the case of Riasat, respondent, who was on duty around the wall inside the jail. By the time, the prisoners reached him they were armed and on their way out, he allegedly had an encounter with them and was threatened with death. Under these circumstances, the notices issued to Amir and Riasat, respondents, are withdrawn. Bail petition of Mazhar Hussain, petitioner is dismissed and the bail allowed to Muhammad Khan, Chiragh, Ashraf and Ashiq is cancelled with the direction that they be kept into custody till they are tried. Before parting with this petition, I would like to point out that bail order passed by the learned Magistrate on 16-4-1983 was far from satisfactory. He did not discuss the allegations against each accused. It is not a speaking order. The only reason mentioned in the order allowing bail was that the accused were Government servants. In the concluding para. it was also observed that they were . not even negligent. On what data, learned Magistrate has made this observation is not to be found in his order. Copy of this order be sent to the District Magistrate, Jhang. Copy of the enquiry report be sent back to the D. L-G. (Prisons). M. A. K.??????????????????????????????????????????????????????????????? ????? Order accordingly.