' MIAN FASIH-UL-MULK, J.---On 12-8-2011 Muhammad Ilyas, Head Constable along with three other Constables namely, Tariq, Hussain Jaffer and Raees had taken under-trial prisoners Nadeem Abbas and Zaqeem from Central Jail, Peshawar to Khyber College of Dentistry (KCD) for their toothache treatment under the advice of Dr. Iftikhar, Dental Surgeon Central Jail Hospital. After examination of accused in the Khyber Dental College, the police party along with accused were standing on the road side for arranging conveyance when five militants came there duly armed and started firing at the police party for the release of accused in their custody, as a result whereof the three constables were hit and died while accused Nadeem Abbas and Zaqeem made good their escape in the company of said culprits.
2. Zahoor Khan, SHO Police Station Tehkal Bala on receipt Of information of the occurrence visited the spot where Head Constable Muhammad Ilyas reported the matter to him, which was reduced into writing in the shape of murasila, on the basis of which FIR No,451 dated 12-8-2011 was lodged against accused Nadeem Abbas, Zaqeem Shah and their unknown colleagues under sections 302/324/353/148/149, P.P.C. Read with section 7 Anti-Terrorism Act.
3. The Provincial Government constituted an inquiry Committee under the orders of Chief Justice of this Court to probe into the matter, which submitted its report and on the directives of high-ups of the Police Department, Head Constable Muhammad Ilyas (complainant) along with Dr. Iftikhar, Dental Surgeon and one Ahad Jan, Constable were made accused in the case. Accordingly sections 109/223/224 and 225, P.P.C. Were added to. The FIR and the three accused were sent to Anti-Terrorism Court No,2, Peshawar to stand their trial on the charges leveled in the FIR. As a result of trial, Dr.Iftikhar and Muhammad Ilyas were found guilty of the charges vide impugned judgment dated 23-5-2013, who were convicted and sentenced under section 302, P.P.C. Read with sections 7 and 21(1) of Anti-Terrorism Act to undergo life imprisonment on each count. They were further convicted and sentenced to seven years R.I. Under section 222, P.P.C. Both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to them. The third accused Ahad Jan was, however, acquitted of the charge.
4. Dr.Iftikhar and. Muhammad Ilyas, being aggrieved of the above decision of learned trial Court, have preferred these two appeals (Criminal Appeal No,249-P/ 2013 and Criminal Appeal No,251- P/2013 respectively), with the prayer to set aside their convictions and sentences and to acquit them of the charges. As both the appeals arise out of one and the same judgment of trial Court, therefore, we propose to decide the same through this single judgment in Criminal Appeal No,249- P of 2013.
5. The case of prosecution is to the effect that accused Nadeem Abbas and Zaqeem Shah were high profile terrorists and detained in the Prison awaiting/facing their trials in different criminal cases. On 12-8-2011, Sajjad, Madad Muharrir assigned duties to the police personnel for taking the prisoners of Central Jail, Peshawar to different places and provided them Jail Van Muhammad Ilyas Head Constable was given challan of accused Nadeem Abbas and Zaqeem Shah for taking them from Prison to Khyber College of Dentistry. On reaching Jail premises, both the accused were entrusted to appellant Muhammad Ilyas by Khushal Khan Gate Keeper of Central Jail, Peshawar. At the time of handing over the said accused, appellant Muhammad Ilyas was told that both the accused being hardened and desperate criminals; he should be careful. Appellant in spite of that did not avail the facility of official vehicle of Prison and took the accused to Hospital in a private vehicle, where driver of the vehicle was asked to go back. Accused Zaqeem Shah was produced before the O.P.D. Doctor, who advised him R.C.T. And gave him the date of 28-9-2011. Accused Nadeem Abbas was referred for minor oral surgery but he told the doctor that he was on fasting, therefore, he will again come for extraction of his tooth on 28-9-2011 along with his friend Zaqeem Shah. The accused were then brought out of the Hospital and it was at this juncture when the Head Constable was arranging for a conveyance after making the accused along with police party to stand on the road side, when five unknown assailants came and escaped the accused from the custody of police officials after committing their murders through firing at them.
6. On the other hand defence of appellant Muhammad Ilyas was that although he was assigned the duty by Police Lines Staff, Peshawar for taking the two accused to Khyber College of Dentistry but neither their names nor their offences were mentioned in the Police Requisition Indent (PRI); hence he was not aware that said accused were dangerous militants; that he took the accused in a private vehicle as he wanted to perform his duty at the earliest, so that he may be able to offer Juma Prayers. He thus denied having ,shared his common intention with the absconding accused because he was absolutely unaware from their arranged plan of their escape.
7. According to Dr. Iftikhar, appellant, the required treatment was not available in Jail Hospital as the requisite machinery was not in a functioning position. He, therefore, as per direction of the Court, referred the accused to Khyber College of Dentistry, which provides specialized treatment for such like problems; hence he had merely performed his professional duty because whenever any patient requires any treatment which is not available in the jail hospital, he is bound to refer him for that.
8. The report of Inquiry Committee has been exhibited on record through Shahid Khan, Inspector (P.W.18). In the said inquiry, Muhammad Ilyas appellant was found guilty of gross misconduct and cowardice, as he failed to collect arms from the armory before leaving for escort duty; he intentionally did not utilize the official transport provided for transporting the prisoners to KCD and back, thus creating an escape opportunity for the prisoners entrusted to him and endangering the lives of the constables placed under his command and that he showed extreme cowardice by failing to prevent the prisoners and the attackers from fleeing the scene of occurrence. About Dr. Iftikhar Ahmad, it was stated that as dental surgeon he failed to provide treatment to Nadeem Abbas for impacted tooth within the prison and perform a simple surgical procedure; that he concealed the facts that treatment for ailments indicated by Nadeem Abbas and Zaqeem Shah was available in Lady Reading Hospital but he referred the two accused to KCD, thus providing the prisoners with an opportunity to get out of the jail and execute the escape plan; that he failed to record treatment on history tickets of prisoners thus contravening section 38 of the Prisons Act and that he did not report to jail authorities that accused Nadeem Abbas was not getting treatment for impacted tooth on his visits to KCD and using his ailment as an excuse to move out of the prison.
9. Perusal of the inquiry report further reveals that it also held responsible the following officers/officials for gross misconduct and omissions in the discharge of their obligations:--
(i) Dr. Musharaf Khan Senior Medical Officer
(ii) Shamroz Khan, Assistant Superintendent Jail
(iii) Sahibzada Shah Jehan Superintendent Jail
(iv) Ajmal Khan Deputy Superintendent Jail
(v) Badshah Said Head Constable Central Jail
(vi) Khushal Khan Gatekeeper Central Jail
(vii) Said Amin Jan, SHO University Town
(viii) Zahur-ur-Rehman SHO Police Station Tehkal x) Usman Ghani Reserve Inspector. Police Lines Peshawar
(x) Shahinshah Constable driver Prison Van and
(xi) Ahad Jan FC.
10. It appears that out of the above 13 officers/officials held entitled for negligence and lapses on their part, only the two appellants along with Ahad Jan, acquitted accused, were picked-up to face their trial in the case while others were made as prosecution witnesses.
11. Perusal of the impugned judgment would reveal that there was no direct evidence of abetment against appellants but the circumstantial evidence available in the case, according to the opinion of the learned trial Judge, was holding them guilty of the charge because both the accused would not have faced the problem of tooth all of a sudden rather development of this disease would have taken sufficient time; that Dr. Iftikhar had not given details that treatment was not available inside Jail; that if Nadeem Abbas was with fasting then why he was referred to hospital; if at all treatment was not possible inside jail then why 'accused were not referred to LRH; it appeared that Dr. Iftikhar was in league with the two militants and deliberately referred them to KCD which was a vulnerable place; it is not known that Zaqeem Shah was not examined in KCD meaning thereby that he had no tooth problem, therefore, Dr. Iftikhar is connected with the plan of escape of the two accused.
About Muhammad Ilyas, appellant, it was held that he was zealous in taking the two dangerous accused to KCD despite it was intimated to him that they were dangerous but he took no precautionary measures to avoid any untoward incident or at least to minimize the expected consequences though official vehicle was available but he hired a private vehicle and took the accused to KCD; the vehicle was allowed to go, which should not have been allowed rather stayed there; when he came out to the road, he left the two militants in custody of three constables while he himself slipped away; it is manifest that accused militants either from inside jail or on their way to hospital had contacted their co-accused in order to make their escape good; appellant being head of the convoy should have kept watch on the accused and should have remained vigilant and not oblivion; he at the pretext of hiring vehicle left the accused and three constables at the mercy of assailants; why he remained as a sight-seer and statue, when he could have used the weapons of his companions if he had not his own; according to P.W.3 Bacha Khan, appellant was informed that accused were dangerous but he did not pay any heed to the same; though there is no direct evidence of conspiracy and abetment but there are strong circumstances from which it can be inferred that accused Muhammad Ilyas had joined hands with accused.
12. We have heard arguments of learned counsel for the parties and also perused the record.
13. Learned counsel for appellants contended that there is no direct evidence of any conspiracy or abetment against the appellants and even the circumstantial evidence on which reliance has been placed by trial court is unreliable and flimsy; hence no conviction can be based on the same.
Learned counsel submitted that the learned trial Court has made a wrong judicial approach to the facts and circumstances of the case as case of prosecution depends entirely on circumstantial evidence and chain of circumstances is not at all complete. The learned trial Court has relied on the testimony of those witnesses, who were also held responsible some how or the other for the incident along with appellants and that there is no corroboration of the prosecution case by independent witnesses, therefore, the appeals are worth acceptance and appellants are liable to be acquitted.
14. Learned A.A.-G. For the State opposed the appeals by contending that the appellants have rightly been convicted and sentenced thus the appeals are liable to be dismissed.
15. According to prosecution version, treatment facility of the ailments of escaped prisoners was available inside the Jail Hospital but inspite of that they were referred for treatment to KCD and that if their treatment was necessary outside the jail premises, then why they were not referred to Lady Reading Hospital or some other nearest hospital. On the other hand, plea of appellant Dr. Iftikhar is that treatment facility of the disease was not available inside the Jail Hospital because the requisite machine was not in working condition. The prosecution has brought on record no cogent evidence to show that either the alleged machine was in working condition or that the disease could have been treated by the appellant inside the Jail Hospital. If one can say that why the prisoners were not sent to Lady Reading Hospital in the given circumstances, it can equally be said that if the occurrence would have taken place near the Lady Reading Hospital, then the presumption against appellant too would be the same as to why he referred the prisoners to Lady Reading Hospital where only a dental unit was working and did not send them to KCD, which was a specialized hospital only for treatment of tooth diseases. It cannot be inferred from the available record that the two prisoners were intentionally referred to KCD as there is no solid evidence to the effect that neither the machine was out of order nor the ailment was such for which the prisoners were required to be referred to an outside hospital. The conclusion of trial Court that accused Zaqeem Shah was not having any disease then why he was referred to hospital is belied by the evidence on record as he was duly examined by the doctor who advised him R.C.T and gave him a particular date for another visit to the hospital. Similarly, the conclusion as to why accused Nadeem Abbas was referred to KCD when he was on fasting is not correct again when there is no evidence to the effect that this fact was told by Nadeem Abbas to the appellant at the relevant time. The evidence in this regard is only to the effect that when this accused was produced before the doctor at KCD, he advised him minor oral surgery but the accused refused to undertake the process on the pretext that he was on fasting. There is nothing against appellant Dr. Iftikhar that he while performing his - duty had misused his powers in favour of the two accused behind the moto of their escape from the clutches of law enforcing personnel. The alleged violation of Prison Rules that he did not keep history of accused is a mere negligence on his part, which cannot connect him with the commission of offence, particularly when there is also no evidence to the effect that accused Nadeem Abbas was earlier too referred by him to KCD.
16. So far as the prosecution case against Muhammad Ilyas, appellant, is concerned, the same also does not stand on solid footings. No doubt, he was guard commander of the convoy but the manner in which the occurrence has committed by the militants would not suggest that such a plan was made in so hurry that the accused prisoners on their way contacted their colleagues for their escape and in a short span of time such a plan was prepared and successfully executed.
P.W.18 Shahid Khan, Inspector in his statement has categorically admitted it correct that no telephonically connection/talks were found on the mobile data of Zaqeem Shah, accused and one Aqib, with whom he was in contact as well as the mobile data of appellant. The mobile call data placed on file would reveal that accused prisoner was in contact with other persons from inside the jail much prior to the occurrence. Question arises, as to how a high-profile terrorist was allowed mobile facility inside the jail. Admittedly it was required by the Police Lines Officer to have mentioned the names and offences of escaped prisoners in the Police Requisition Indent but the same were not mentioned and only the words "two naffer male to KCD" were written therein. P.W.4 Khushal Khan Gate Keeper, who too has been held responsible in the inquiry report, has stated that he orally informed Muhammad Ilyas that the accused are hardened and desperate criminals. Only oral information of a person who too was held responsible for lapses on his part in the incident would not provide a proper base for holding that such a warning was in fact administered to the appellant. Admittedly, appellant was not armed at the relevant time and as per site-plan he was standing at some distance from the police-party and the two accused for hiring conveyance when the occurrence took place. The militants who committed the offence in a broad day light on a busy road in a brutal manner had left no chance to the appellant to quickly react having no arm in his hand. Similarly, when three colleagues of appellant were murdered in front of his eyes, his remaining a statue for a moment was but natural when there is nothing on record that appellant was a Commando and he should have quickly picked-up the rifles of his colleagues for preventing the escape of accused/assailants. His only negligence is that instead of preferring to take the prisoners in an official vehicle, he hired a private Suzuki for the purpose, for which he has offered the explanation that he wanted to offer Juma Prayers and, therefore, opted to complete the task in private conveyance. We are, therefore, of the view that appellant Muhammad Ilyas was also having no conspiracy or abetment in the incident in question.
17. Strange enough that mobile record of accused Zaqeem showed his contacts with one Aqib but no efforts were made by the I.O. To locate the whereabouts of said Aqib through latest technology, who in the circumstances seemed to the master mind of the occurrence.
18. The main evidence in this case has been described by the trial court as "circumstantial". Even though conviction can be founded on circumstantial evidence in appropriate cases, we are of the view that circumstantial evidence should be reliable, cogent, not imaginary and consistent only with the guilt of the accused. Another surprising feature in this case is that the police have not thought it fit to examine any member of the Inquiry Committee as witness in support of the report exhibited on record. Such failure also points out to weakness of prosecution case against the appellants. There are serious gaps in the chain of events alleged to constitute circumstantial evidence. It is well settled that in such like cases there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
19. For the reasons stated above, we find it difficult to sustain the conviction of appellants on the basis of circumstantial evidence and would hold that appellants were wrongly convicted for the offences charged with. We, therefore, set-aside their conviction and the sentences and acquit them of the charges by allowing both the appeals. Appellants shall be released from jail forthwith if not required in any other case.