1. ' This appeal has been filed to challenge the judgment of Ist Additional Sessions Judge, Tharparkar at Mirpurkhas whereby he has convicted the appellants/accused under section 221, P.P.C. And sentenced them to suffer simple imprisonment for 2 years.
2. ' Briefly the prosecution case is that S.T.P. Khizar Muhammad, a Line officer of Mirpurkhas lodged the F.I.R. At 1510 hours on 18-9-1983 under section 222/223/224/225/225-A, P.P.C. To the effect that on 12-9-1983 the present appellants along with co-accused Wali Muhammad, Madad Ali and Abdullah Khan were sent on guard duty at the Civil Hospital lock-up ward. Rhe appellant No,1 being Lance Naik was the in charge while others 4 were the Police Constables of whom Abdullah Khan was absent from duty. Co-accused Abdul Waheed, an undertrial prisoner in a murder case was lodged in the said Ward along with other 4 prisoners. It is further stated in F.I.R. That on the said date co-accused Wali Muhammad came to the complainant at 1430 hours and stated that his duty was from 2400 hours to 0300 hours during which time co-accused Abdul Waheed complained of severe pain in stomach and asked to be taken to Hospital for treatment. He informed the incharge (appellant No,1) and advised that doctor should be called to the Ward to examine him but the present 2 appellants took him out of the lock-up and then he was taken to the Hospital. At the end of his duty the said Wali Muhammad awakened co-accused Madad Ali and handed him the charge of remaining 4 prisoners informing him about Abdul Waheed having been taken to the Hospital at 0700 hours the co-accused Madad Ali is said to have awakened Wali Muhammad and informed him that the said prisoner Abdul Waheed had still not been brought back by the present appellants. On this they waited for quite a long time and also made a search for them in the Hospital but they were not traceable. The complainant then after visiting the lock- up and making enquiries filed the F.I.R. The appellant No,1 who was granted bail before arrest by the Sessions Court Mirpurkhas voluntarily appeared before police. In the meanwhile the police had arrested the remaining 3 constables and escaped prisoners who all were produced before the Magistrate for recording their confessions and then concluding the investigation the accused were sent up to stand trial. The accused pleaded not guilty to the charge framed under sections 222, 223, and 224, P.P.C. Prosecution examined P.W. Muhammad Kassim Lashari the S.D.M. Who recorded confession of escaped prisoner and A.S.I.P. Muhammad Ayoob who arrested him (Escaped Prisoner) Investigating Officer was also examined.
3. ' The accused in their statement recorded under section 342, Cr.P.C. Denied the charge. The present appellants however stated that the prisoner escaped due to negligence of the doctor to whom prisoner was referred for treatment. The present appellants specifically said that at the instructions of the doctor they sent the prisoner inside the operation theatre and under his instructions they stood outside and that after 1/2 hour time they learnt that the prisoner had escaped. One Head Constable Sulleman was examined in defence. The trial Court acquitted co-accuscd Wali Muhammad and Madad Ali and convicted the present appellants under section 221, P.P.C. And sentenced them as above while co-accused Abdul Waheed the escaped prisoner was convicted and sentenced under section 224, P.P.C. To suffer R.I. For 2 years. He has filed a separate appeal.
4. ' Mr.Naimatullah Qureshi the learned counsel appearing for appellant No,1 has submitted that the conviction of the appellant is based solely on the confession of the escaped prisoner which is not supported by any other independent evidence. He has stated that there is no ocular account of the escape of the prisoner. However the fact that he had escaped cannot be denied. According to learned counsel the point to be proved against the present appellant is as to whether the responsibility of his escape can be placed on the present appellants. Mr.Qureshi has pointed out that the accused appellants have stated that they had taken the prisoner to the doctor who asked them to take the prisoner to the Operation theatre and on his instructions they stood outside the Operation theatre and that prisoner escaped from the Operation theatre. Now Operation Theatre in a hospital is such a place where nobody can enter in his ordinary clothes and shoes. Even the Surgeons and other staff working in the operation Theatre have to change into sterilized gowns and wear sterilised slippers. Therefore, it was quite natural that the doctor had asked the appellants to stand outside the Operation Theatre. Mr.Qureshi has further contended that in order to prove otherwise, it was incumbent upon the prosecution to examine the concerned doctor but he was not examined although his statement was recorded by Investigating Officer and his name was cited as a witness in the challan which fact is admitted by the Investigating Officer in his cross-examination. He has further contended that the trial Court has erred in observing that the accused could have examined the said doctor. The learned counsel has argued that the duty is cast upon the prosecution to prove the case beyond all reasonable doubt and withholding the best possible evidence would give rise to the inference that had the said doctor been examined his evidence would have gone against the case of prosecution. From this the learned counsel has submitted that the prosecution has not been able to prove as to from what place the prisoner had escaped. Referring to the confession of the co-accused Abdul Waheed who has given the story that he had bribed the appellant No, 1 to allow him to escape and, that police had brought him to his village and then kept him in confinement, the learned counsel has submitted that the same is not supported by any material evidence. The first piece of evidence taken into consideration is the fact of raid on the house of the said prisoner in his village. It is admitted by the Investigating Officer in his cross-examination that the mashirs of raid are his subordinate police officials and he did not take any private person from the locality to act as mashir as he did not consider it necessary. This raid therefore is not beyond the doubt. The trial Court in its Judgment has stated that the prisoner, who is co-accused has stated that he had bribed the accused to allow him to escaped and that the deal was settled at Rs, 3,500 and Rs, 1,500 were paid in advance by the prisoner for which the trial Court has observed that he had taken the said Rs,1,500 from his brother for out of pocket expenses. But the confession of the escaped prisoner, shows that prisoner had taken only Rs, 100 from his brother. Then where from he brought the remaining Rs, 1,400. The confession on this point also cannot be used as corroborative evidence against the co-accused. Further Mr. Qureshi has submitted that if this be taken as true then the offence can also be said to have been committed under Act II of 1947 and as per section 5(7) of the Pakistan Criminal Law Amendment Act 1958, this being a scheduled offence, it would be triable exclusively by the Special Judge and not by the trial- Court. Lastly the learned counsel has submitted that though the co-accused Ghulam Nabi, Madad Ali and Wali Mohammad were produced before the Magistrate but they refused to give any confession whereas the escaped prisoner has retracted from his confession and it cannot be used as evidence against appellants unless corroborated by the reliable evidence. He has also pointed out that the Magistrate in his cross-examination has stated that the said accused prisoner is Urdu knowing but confession was recorded by him in Sindhi which the Magistrate while signing the memorandum at the foot of the confession states to have been translated and read over in Sindhi.
5. Section 164(3) Cr. P C provides that the confession is to be read over to the accused as it is and is not to be translated as in that case it would be the language of the Magistrate and not the accused which is being read over to him. The learned counsel in order to support his contention with regard to retracted confession has relied on the cases of Abdul Aziz v. The State 1987 MLD 1465, Moharram v. The State 1983 P Cr. L J 471 and Liaquat Bahadur and others v. The State PLD 1987 FSC 43.
6. ' From, the above discussion I am inclined to agree with the learned counsel that the confession of the co-accused who is the escaped prisoner cannot be used against the present appellants as it does not find any support from other evidence. A doubt has been created as to whether the said prisoner escaped from the custody of appellants or from the Operation Theatre where he was in the custody of the said doctor who is not examined in the case although his statement was recorded by police and he was cited as a witness.
7. ' Mr. Yousuf Leghari, the learned counsel appearing for the appellant No,2 has adopted the arguments of Mr. Oureshi. He has however further submitted that charge was framed under sections 222 and 223 P.P.C. Whereas the appellant is convicted under section 221 and thus a prejudice has been caused to the appellant. He has referred to the provisions of section 222 Cr. P C and has argued that the allegation made against the accused do not fall under the provisions of this section and the section would apply only when the prisoner who is under a sentence escapes and not the undertrial prisoner and therefore according to him, the charge is wrongly framed. He has then contended that if section 222 is deleted from the charge then the offence under section 223 is triable by a Magistrate of first class. Therefore according to learned counsel the whole trial is vitiated. He has placed reliance on the cases of Zabtey Khan v. The State PLD 1972 Lah. 196 and Sadiq Ali v. The State PLD 1986 SC 589. Mr. Leghari has further contended that the present appellants and the escaped prisoner could not be tried jointly. He has referred to the case of Hussain Shah v. The State PLD 1963 Lah.
8. 223.
9. ' Mr. Shaukat Hussain Zubedi, the learned A.A.-G. Appearing for the State has submitted that the charge was rightly framed under sections 222 and 223 P.P.C. He contends that section 222 is applicable to the present case as the very language of the section would show that it also applies to any person "lawfully committed to custody" and the under-trial prisoner was committed to custody by the Court lawfully. As regard the joint trial the learned AA.-G. Has submitted that the offences committed by the accused police constables and the escaped prisoner are in the continuation of same act and are in same transaction. Therefore the case of Hussain Shah v. The State as cited above would not apply. With regard to the above-cited Supreme Court case of Sadiq Ali v. The State, he has submitted that in the said case a direct complaint case under section 224 (Triable by FCM) was transferred for trial to the Court of Sessions Judge and therefore this case is also not applicable to the present case. The contention of the learned AA.-G. Is not devoid of any force. The contentions raised by Mr. Yousuf Leghari are therefore not acceptable. However, the.
10. Learned AA.-G. Could not submit any facts or law to counter the contentions raised by Mr. Naimatullah Qureshi.
11. ' In view of the above discussion I accept this appeal and set aside the conviction and sentence awarded to the appellants as stated above. Appellants are 13 on bail and their bonds are discharged.