P L D 2021 Balochistan 87 (PLP)

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 convicted 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 favour 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 Dhadar 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 court. 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 list 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 imprisonment 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 person 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. In 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 miscarriage 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. cannot 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 departmental 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, can 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 hereinabove 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 the 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.

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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 regard 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 acquitted 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. Reliance 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 relevant 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 placed 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 standing 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 proposition 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 Sessions 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 bail, his bail bonds stand discharge. SA/106/Bal. Petition accepted.