P L D 2017 Sindh 723 (PLP)

SALAHUDDIN PANHWAR, J.

Through instant criminal revision application, applicants have challenged the concurrent findings recorded by trial Court as well appellate Court, whereby applicants have been convicted for one year rigorous imprisonment.

2. Case of the prosecution is that one UTP namely Muhammad Ramzan, due to urinal pain was referred to Civil Hospital Sanghar and he was admitted by the hospital administration. On 24.09.2007, on visit, doctor found him missing hence, the matter was reported to the concerned police thereby these four applicants were arraigned.

3. Learned counsel for the applicants at the outset, has contended that there is no proof that applicants were on duty on the fateful day. He referred to the evidence of complainant who, in his cross-examination, admits that "it is correct to suggest that on that day HC Ali Muhammad was doing duty at police line on telephone and roznamcha. It is correct to suggest that I and WHC Abdul Hameed were not present in office at night on that day." Whereas learned APG while supporting the impugned judgments contends that one witness has deposed that present police officials were on duty; however, that entry is not produced on record. He refers to evidence of PW-5, who is Jail Superintendent and stated that UTP was referred to hospital due to urinal tract problem, however, he has not produced any document with regard to negligence on the part of any of the applicants.

4. I have heard the respective sides and have also carefully gone through the available record.

5. Case of the prosecution is that on 24.09.2007, UTP escaped from Ward of Hospital and present applicants were held guilty of negligence resulted into such escape. I have no confusion in my mind that the offence wherein the applicants have been convicted is of two folds. The first one is that such public servant must have been legally bound to keep escaped person in confinement and second one is that escape must have been due to negligence of such public servant. In such like cases the prosecution must establish first one while the burden would be upon public servant to disprove the second fold that escape was not result of his negligence. In the instant matter, nothing was brought on record with regard to duty of present applicants over the escaped accused or at such place. The duties of police officials, including that of jail are regulated under entries in relevant record (registers) hence prosecution was required to have produced such entries on record but it is a matter of record that no such entry or proof has been brought on record. In absence thereof, the conviction for such an offence cannot sustain. Both the Courts below erred in law while not appreciating the well settled principle of law that for giving benefit of doubt to an accused more than one infirmity is not required but a single infirmity creating reasonable doubt is sufficient. (Muhammad Luqman v. The State PLD 1970 SC 10). Accordingly, this case is not free from doubt; as a result of which, impugned judgments dated 31.10.2009 and 01.04.2014 are hereby set aside. Applicants are acquitted of the charge by giving benefit of doubt. They are present on bail. Their bail bonds are cancelled and surety stand discharged. JK/M-107/Sindh Order accordingly.