1. ' By this common order I intend to dispose of the above two bail applications which arise out of the same case registered at Police Station Dadu as Crime No,146/1989 under section 392/223/224/225, P.P.C. And 17(3) of Offences Against the Property (Enforcement of Hudood) Ordinance, 1979.
2. ' Briefly the prosecution case is that ASI Ghulam Haider Shah of PS Dadu registered the F.I.R. The text whereof reads as under:- "The complaint is that today I was present at Police Station Dadu for night duty and at about 2050 hours I received information through telephone that at about 2040 hours three persons alongwith Revolvers came and got released five prisoners from the Hospital Guard and went away in car. On such information we informed Mobile Dadu, Guards in Dadu and so also Control Room Dadu and we alongwith policemen set out from police station and went to Civil Hospital Dadu and reached in prisoner's ward where police guard namely H/C-2266 Muhammad Ayoob, C/1771 Meehon Khan, C/923 Mumtaz Ali, C/587 Misri Khan Police Lines Dadu not us and we enquired from them and Meehon Khan narrated the facts that he (Meehon Khan) was on duty and the rest of the policemen namely H/C Muhammad Ayoob, and Misri Khan were sitting on cot outside and Mumtaz Ali had gone to take meals. He had official rifle semi and 100 bullets and rest of the three rifles mark (4), .303 and 150 bullets were lying in the corner and at about 2040 hours. Three persons came inside from the Hospital Ward and when they came near him (Meehon Khan) at once one person snatched away his rifle and bullets. One person kept revolver on his temporal region and asked him not to cry else will be killed and third person took the keys of handcuffs lying on the table and opened the handcuffs of prisoners namely Mir Jamali, Mir Brehmani Jumma Lund, Shamoo Hajam, Mazan Chandio and also took the rifles and bullets lying in the corner and came out and went away in car which was already parked there. We have seen three accused properly and we can identify if shown to us and in the meantime Mumtaz Ali too came there and on such facts Head Constable Muhammad Ayoob, Meehon Khan and Mumtaz Ali accompanied by me came to the police station since unknown accused duly armed with revolvers had overpowered Santri Meehon Khan and took away the detailed as under the rifles and bullets and also got released the prisoners from the custody ward of the Hospital namely Mir Jamali, Mir Brehmani, Jumma Lund, Shamoo Hajam and Mazan Chandio and they got escaped through them and have run away and therefore the complaint is being lodged on behalf of the State."
3. ' Bail applications for the above two applicants were moved before the Court of Session Judge Dadu which were heard and rejected by the learned 1st Additional Sessions Judge Dadu merely on the ground that the escaped prisoners were involved in heinous offences, the investigation of the case has not yet been completed and that there was no justification to detain them in Dadu Jail and they should have been sent to Central Prison Hyderabad and also that they should not have been recommended to be hospitalised as they were not suffering from any serious disease.
4. ' I have heard the learned counsel for the applicants and Syed Sarfraz Ahmed, the learned A.A.-G.
5. Mr. Faiz Muhammad Qureshi, learned counsel for the applicant, Guizar Ahmed, the Superintendent of District Jail Dadu, has submitted that the name of the applicant does not appear in the F.I.R. And that there is nothing on the record to show as to how the applicant Guizar Ahmed was in league with the escaped prisoners and as to how he has assisted them or is instrumental in their escape.
6. The learned counsel has next contended that in view of his above contention, Sections 223/224 and 225 P.P.C. Are not applicable to his client as he had sent the said prisoners to hospital on the advice of visiting Medical Officer as there is no arrangement of hospitalization in the jail premises and also that there is no permanent Medical Officer appointed there. He has referred to Rule Nos.173 and 197(W) of Pakistan Prison Rules to show that it was the responsibility of the police to guard the prisoners confined in the prisoners ward of the hospital. The learned counsel has further submitted that the applicant is a respectable person who has been victimized simply on account of departmental intrigues and has been made, scapegoat in order to protect the persons really involved in the matter. He has placed reliance on the case of Mansoor Ahmed Bhatti v. The State 1976 SCMR 366, wherein Hon'ble Supreme Court had granted bail on the grounds that the applicant was not named in the F.I.R. As an actual assailant or a conspirator although the report contained sufficient details. From this the learned counsel has submitted that the applicant is entitled to grant of bail as this was obviously a case of further enquiry.
7. ' Mr. Hidayatullah A. Abbasi, learned counsel for applicant Dr. Abdul Sattar has made similar submissions that the name of the applicant does not appear in the F.I.R. Nor any specific role has been assigned to him. According to the learned counsel the only role that can be attributed to his client will be that of contributory negligence or having provided an opportunity to facilitate the escape of the said criminals. He has submitted that his client was a visiting Medical Officer who had recommended the said prisoners to the hospital but he cannot be said to be responsible for their admission or detention in the prisoners ward of the hospital as on arrival of the said prisoners in the hospital they were examined by the Resident Medical Officer or on duty doctors there and it was under their directions that the said prisoners were admitted in the Hospital. According to the learned counsel the said prisoners were suffering from serious and severe diseases such as Maninjitis, Fistula and Renal colic etc., and in fact one of them Jumma Lund was on the operation list and so had to undergo the operation on the next day. The learned counsel has further contended that the prisoners ward in the hospital is a separate room and it was the duty of the Superintendent of Police of the District and his subordinate the Line Inspector, who had to provide the guard for the safe-keeping of the prisoners in the said ward. From this the learned counsel has submitted that the contributory negligence, if any, could be attributed to the said police officials and the doctors under whose directions the prisoners were admitted in the hospital but the police papers show that no action whatsoever is being taken against them. It is further contended that the present applicant who does not have any approach or influence in higher circles is involved only to protect the others. It is also submitted that the very investigation on this score appears to be dishonest. The learned counsel has submitted that the F.I.R. Itself shows that out of the four policemen posted at the prisoners ward only one was inside the ward while the two others were sitting outside on a cot and the fourth person had gone away to take meals. This itself, according to the learned counsel, shows that it was the negligence on the part of the police guard. He has also contended that the presumption that the escaped prisoners were not suffering from any disease to require their hospitalization cannot be substantiated unless there is any opinion of some medical authority or expert in this behalf. Lastly, the learned counsel has contended that removal of rifles is from the prisoners ward in the hospital with which the present applicant is not linked but at the most sections 223, 224 and 225, P.P.C. Can be applied, the maximum punishment of which would not be more than three years. The learned counsel has placed reliance on the case of Manzoor and 4 others v. The State PLD 1972 SC 81 to support his contention that discretion with regard to grant of bail is to be exercised with due care and that burden is on prosecution to show that at least some case is made out whereby the accused can be linked with the commission of the offence. The learned counsel has also placed reliance on the case of Ghulam Qadir v. The State PLD 1960 SC (Pak.) 254 in support of his contention that the present applicant cannot be held responsible unless there is material on record to show the common intention on the part of the applicant. Thus the learned counsel has submitted that there is nothing on the record to connect the present applicant with the commission of the alleged offences.
8. ' Syed Sarfraz Ahmad, learned A.A.-G. Has very vehemently opposed the bail applications.
9. According to him except for escaped prisoner Mir Jamali, the remaining four prisoners were brought from Central Jail Hyderabad for the purpose of attending the Court on the dates of hearing in cases pending at Dadu against them. The learned AA.-G. Has contended that it was the duty of the Superintendent of District Jail Dadu to have sent back the prisoners to the Contral Jail Hyderabad as they were involved in serious and heinous crimes and that they were dangerous criminals. He has further contended that it was also the duty of the Jail Superintendent to have arranged for a heavy guard at the prisoners ward in the hospital for the reasons that the said prisoners were, as stated above, dangerous criminals and could have made attempts to escape.
10. According to the learned A.A.-G. The said three persons had come in a motor car which was parked outside the prisoners ward and it was in that motor car that the prisoners escaped. He has placed reliance on Rules Nos.169, 170 and 197 (iv) of the Pakistan Prison Rules. As regards applicant Dr. Abdul Sattar, the learned A.A.-G. Has contended that the applicant was only a visiting Medical Officer and before referring the prisoners to hospital he should have sought the opinion of the Civil Surgeon. It is further contended that this applicant having referred the prisoners to the hospital has facilitated their removal from the four walls of the District Jail to an open place from where they could conveniently escape. He has also submitted that the prisoners were not suffering from serious ailments. He has also contended that the applicants are liable not only under sections 223/224 and 225, P.P.C. But they also are, liable under section 392 P.P.C. And 17(3) of Offences against Property (Enforcement of Hudood) Ordinance, 1979. He has placed reliance on the cases of Chiragh Din and others v. The State PLD 1967 SC 340) and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 741. He has also referred to sections 107 and 108, P.P.C. And has contended that section 109 P.P.C.
11. Would be applicable.
12. ' I have given anxious thought to the contentions of the learned advocates for the applicants and the learned Assistant Advocate-General. It is an admitted position that there is no arrangement of hospitalisation in the District Jail Dada and also that there is no permanent Doctor posted in the jail and therefore, if any prisoner is suffering from any serious type of ailment he has to be referred to the hospital. It is also not denied by the prosecution that the prisoners were said to be suffering from diseases such as Maninjitis, Fistula and Renal colic, etc., which in fact are such diseases which cannot be seen from outside but are quite severe and require the hospitalisation or continuous treatment for some time. It is also not denied that one Jumma Lund was actually placed on operation list and had to undergo the operation on the next day. The said prisoners who were referred to the hospital were ordered to be admitted under the orders of the Resident Medical Officer or the Doctor on duty and the procedure is that the Civil Surgeon makes a round of the Hospital every day examining the indoor patients. In case any of these prisoners had not been suffering from any severe or acute ailment, the Civil Surgeon could have ordered their discharge and consequent removal to the Jail but there is nothing brought on record by the prosecution to show any such order of the Civil surgeon and this fact would give rise to the inference that the said prisoners were suffering from such ailments which required their hospitalisation. It is also not denied that no action has been taken against the said doctor who ordered the admission of the prisoners in the hospital. In order to support the contention of the prosecution that the diseases of the said escaped prisoners were quite simple there had to be some expert opinion to this effect which is not there in the police papers or brought on record by the prosecution.
13. ' The second contention of the learned AA.-G. Is that it was the duty of the Jail Superintendent to have sent the prisoners to the Central Prison, Hyderabad as they were dangerous criminals. The learned A.A.-G. Has however not been able to show from the Pakistan Prison Rules or any other law that the Superintendent of a District Jail was empowered to order the shifting of the prisoners from a District Jail to a Central Prison. The learned AA.-G. Has referred to Rule 170 of the Pakistan Prison Rules, which reads as under:- "Rule 170:- Upon delivery of any order under section 41 of the Prisoners Act, 1900, to the Superintendent of the Prison in which the prisoner named therein is confined that officer shall cause him to be taken to the Court in which his attendance is required, so as to be present in such Court at the time in such order mentioned and shall cause him to be detained in custody in or near the Court until he has been examined or the Judge or the Magistrate authorize him to be taken back to the prison in which he was confined. The Superintendent of Police is responsible for providing escort and for the safe custody of prisoner till he is redelivered to the prison."
14. ' This rule on the contrary is not helpful to the prosecution case as this rule shows that the prisoner who is required to attend the Court is to be detained in custody in or near the Court until he has been examined or the Judge or the Magistrate authorises his removal to the prison in which he was confined. It further says that the Superintendent of Police shall be responsible for the escort and for the safe custody of the prisoner till he is re-delivered to the prison. There is nothing on the record to show that the said prisoners had been examined by the Court or that there was any such order of the Judge or Magistrate authorising the prisoners to be taken back to the Central Prison. The learned AA.-G. Has then relied on the provisions of Rule 169 of the said Rules but in my view the said Rule is not applicable as it provides for notice for requisition of police escorts. Here it is not a case that the prisoners had escaped while being extorted from one place to another but the prosecution case is that they have excaped from the prisoners ward. It will be necessary here to observe some of the facts with regard to prisoners ward. The prisoners ward is a separate room in the Civil Hospital Dadu as disclosed in the Mashirnarna of Wardat which shows that this room is exclusively used as prisoners ward which has two doors, one in north and the other in south. The door in the south is locked from outside permanently and is not in use while the door on the northern side is used for entrance and exit. The Mashirnama of Wardat also shows that at the time of the escape of the prisoners the only one constable Meehon Khan was on duty who was also standing outside the room on the eastern side of this door while the keys of the handcuffs and fetters were kept inside the room on top of an iron locker near the cost of the prisoners. This prisoners ward is guarded by Police and it is the duty of the District police to provide the guard at the prisoners ward and Superintendent of Jail or the Medical Officer are in no way concerned with the security and watch over the said prisoners lodged in the said ward. This being solely the responsibility of the District Police, any negligence in this behalf would be the liability of the district police. The facts as disclosed in the F.I.R. And the Mashirnama of Wardat show that only four constables were posted to guard the said prisoners ward of whom also only one was present at the ward but according to Mashirnama of Wardat he was outside the ward. As contended by the learned A.A.-G. Three persons had come in a car and entered the prisoners ward. However, there is no explanation as to why the other two police constables who were sitting on the cot outside the prisoners ward did not intervene and as to why the door of the prisoners ward was not kept locked when the said police constable Meehon Khan was standing outside the said ward and why the said three persons were allowed to enter into the said ward and also as to why the keys of handcuffs were left unguarded within the reach of prisoners. The learned AA.-G. Has also relied on rule 197(iv) of the Pakistan Prison Rules but on the contrary it goes against the prosecution as it reads:- 'Prisoners admitted in hospital outside the prison shall always be guarded by the Police."
15. From the above discussion it appears that this is a case of further enquiry and I am inclined to admit the applicants to bail. Both the applicants shall be released on bail on their furnishing surety in the sum of Rs,50,000 each with one surety and P.R. Bond in like amount each to the satisfaction of the Additional Registrar of this Court. However, the prosecution is at liberty to move for cancellation of bail if such material is available.
16. Bail .