2005 PLP 877 (YLR)

Iqbal Mahmood Awan for Petitioner Najeeb Faisal Chaudhry, Addl. Advocate General with Ms. Zarqa Bashir Goraya, for the State. Through this petition the petitioner seeks bail after arrest as well as quashment of proceedings against him in case F. I. R. No.510 of 2004 dated 13‑8‑2004 under sections 114, 161, 212, 223; 224, 225,' 342, 344, 345, 353, P.P.C. read with, section 5 of the Prevention of Corruption Act, 1947 and 115‑B of Police Order 2002 along with 7‑A of the Anti‑Terrorism Act , 1997 registered at Police Station, Sabzi Mandi District, Gujranwala.

2. According to the prosecution allegations set up in the F. I. R. lodged by Muhammad Javaid Sub‑Inspector of Police Station, Sabzi Mandi Gujranwala on 13‑8‑2004 at about 7‑25 a.m. Tanvir, Shabbir and Muhammad Aish accused who were lodged in judicial lock‑up in Police Station, Sabzi Mandi in connection with case F.I.R. No.312 dated 20‑5‑2004 under section 395, P.P.C. of the said Police Station were able to make good their escape and while attempting the said escape they also used fire‑arms and indulged in firing and also injured Muhammad Nawaz Constable by hitting his head with the Butt of the pistol and then one Iftikhar Ahmad Constable had also received fire shots on his leg. At the time of the said incident of escape the petitioner who was the S.H.O. of the said police station along with Farasat Ali Shah, S.‑I., Muhammad Afzal, A.S.‑I., Rahat Hussain, Muhammad Ramzan, Amjad Pervaiz, Safdar Hussain and Iftikhar Ahmad and Muhammad Nawaz Constables were present at the police station and they did not take effective measures to prevent the escape of the said three culprits. It has also been alleged that this occurrence had taken place due to the negligence, connivance and cowardice of the police officers and other police employees posted at the police station.

3. It is pleaded on behalf of the petitioner that he was merely present in his office when the incident of the escape took place and that the petitioner learned the same after the culprits had already effected their escape and that there is no evidence or material against the petitioner to suggest that he had either connived with the three culprits who had made good their escape or had received any gratification from them or had assisted in their escape and the statements of the two constables that the occurrence had taken place due to negligence, connivance and cowardice of the petitioner is merely an opinion and that even if the said opinion is taken to be true it cannot be formed basis for any criminal proceedings against the petitioner and at the most administrative action under Efficiency and Discipline Rules could be initiated and that the petitioner has been arrested in this case without any lawful authority and the prosecution has not been able to place any material on the file justifying his involvement in the occurrence.

4. The learned Additional-Advocate General has vehemently opposed this petition and has contended that the three culprits could not escape without active support and connivance of the petitioner who being the S.H.O. of the Police Station is responsible for the entire episode.

5. The record reveals that there are statements of two police constables and one S.‑I. namely, Muhammad Javaid to the effect that the three culprits escaped due to the negligence, in difference, connivance and cowardice of the petitioner. However, the said expression only constitute an opinion and no material has been brought on the record to justify the formulation of the said presumption. There is no material to suggest that the petitioner in any manner had received illegal gratification from the three culprits or that he had actively assisted the culprits in effecting their escape. The prosecution allegation set up in this case even if accepted only tend to show that the petitioner was only negligent in the performance of his duty which does not show his complicity with the three culprits effecting their escape and the negligence in the performance of duty does not create any criminal liability and at the most qualifies for action under Efficiency and Discipline rules. Therefore, we are of the opinion that the petitioner has been illegally arrested and involved in this case. The proceedings against him are therefore, quashed. He shall be released forthwith. Copy Dasti.

6. Before parting with this order we are of the opinion that since Tariq Zafar petitioner was arrested in this case without legal basis and has been made to suffer the agony and ordeal of imprisonment for one month, justice and fairplay demands that no further adverse order shall be made or action initiated against him. H.B.T./T‑50/L Proceedings quashed.