2006 P Cr (PLP)

ALI SAIN DINO MAITLO, J.

Heard Messrs Safdar Ali Bhutto, Advocate for applicants Zahid Hussain and Sudheer Ahmed, Nadeem Ahmed Tunio, Advocate for applicant Talib Hussain, Muhammad Ayaz Soomro, Advocate for applicant Muhammad Ramzan and Mr. Mushtaque Ahmed Abbasi, Assistant Advocate-General. The latter has no objection for the grant of bail to the applicants as, according to him also, the offence made out against them is bailable. The allegation against the applicants who are all police constables, is that on 25-7-2005 at about 2-00 p.m. they while being on guard duty over the under-trial prisoners under treatment in Jail Ward of C.M.H., Larkana, suffered, due to their negligence, escape of an under-trial prisoner, namely, Ghulam Nabi Jamali, facing charge under section 9(c) of the Control of Narcotic Substances Act, 1997. Prima facie, the offence against the applicants falls under section 223, P.P.C. According to police, the prisoner had escaped due to the negligence of the applicants. The trial Court, while rejecting the bail application, has also observed that the prisoner had escaped due to the gross negligence of the applicants. Though, at present sufficient evidence is not available with the prosecution to show that the applicants had intentionally allowed or aided the prisoner to escape, the offence of intentionally allowing escape, falling under section 221, P.P.C., is also bailable. The offence under section 225-A, P.P.C., which is the residuary section regarding the cases not covered by sections 221, 222 and 223, P.P.C., is also bailable. The trial Court has rejected the bail application only on the ground that the police had subsequently applied section 225(iii), P.P.C. This section has no application so for the applicants are concerned. It applies to the cases of intentionally offering resistance or obstruction in apprehending offenders or rescuing them from custody. None of the applicants is alleged to have offered any resistance in apprehending any offender or rescued or attempted to rescue any prisoner. The Court is not bound by the ipsi dixit of police particularly in the matters of the application of proper section. It, being more expert in the field of law, has to apply its own mind and find out the proper provision of law applicable to the facts and circumstances of a case. In view of the above, it is clear that the offence made out against the applicants is bailable and, therefore, they are entitled to bail as a matter of right. Accordingly, the applicants are directed to be released on bail each on furnishing solvent surety in the sum of Rs.30,000 (thirty thousand) and personal recognizance in the like amount to the satisfaction of the trial Court. H.B.T./M-16/K Bail granted.