1. JAVED IQBAL, J.---In this criminal petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, leave is sought against the judgment dated 17-11-2000 passed by learned Single Judge of High Court of Balochistan, Quetta, whereby the Revision Petition preferred on behalf of petitioner has been dismissed and judgment of the learned Additional Sessions Judge-III, Quetta, dated 31-7-2000 has been maintained. Briefly stated the facts of the case as mentioned in the impugned judgment are:-- "The occurrence is stated to have taken place on 27-2-1999. On the said date the petitioners alongwith other police officials brought 58 prisoners including Jumma Khan (absconding accused) from District Jail, Quetta to judicial lock-up District Court, Quetta. It is stated that petitioner Imdad Hussain was deputed and keys of the lock-up were handed over to him while petitioner Nazir Masih, Constable was deputed as guard at the gate of the judicial lock-up. The prisoners were dispatched to respective Courts and brought back to lock-up safely by the police officials. It is stated that 29 prisoners were sent back to District Jail and receipt thereof was handed over to the petitioner Muhammad Yaqoob who was incharge of the judicial lock-up. It is stated that when the remaining prisoners were being taken to District Jail, Quetta, on counting and checking one of the prisoners namely Jumma Khan son of Muhammad Zai involved in Crime No,173 of 1998 offence under sections 324/353/186, P.P.C. Police Station Brewery, Quetta was found missing.
2. It was the case of the prosecution that accused Jumma Khan escaped from confinement on account of negligence of the petitioners. The report of the incident was made by the petitioner Muhammad Yaqoob by sending a Marasala, which was incorporated in the F.I.R. Being Crime No,37 of 1999, Police. Station Civil Lines, Quetta under sections 223/224/34, P.P.C. During the course of investigation the petitioners were arrested. After usual investigation they were sent to face their trial before the learned Judicial Magistrate-IV, Quetta." In order to substantiate the accusation, prosecution produced Muhammad Suleman (P.W.1), Zeeshan (P.W.2), Sher Afzal (P.W.3), Atta Muhammad (P.W.4), Abdul Ghaffar (P.W.5), Allah Rakhia (P.W.6), Sardar Khan (P.W.7), Muhammad Illyas (P.W.8), Shah Jehan (P.W.9), Ghulam Shabir, A.S.-I.
3. (P.W.10) and Abdul Jabbar (P.W.11). The petitioner got his statement recorded under section 342, Cr.P.C., and opted to make statement on oath under section 340(2), Cr.P.C. And denied the allegations. On conclusion of trial the learned Judicial Magistrate IV/M.F.C., Quetta, convicted the petitioner under section 223/34, P.P.C. And sentenced to suffer S.-I. For a period of one year and to pay fine of Rs,2,000 and in case of default to further undergo S.-I. For a period of three months by means of judgment dated 18-5-2000. Being aggrieved an appeal was preferred which met the same fate and rejected by the learned Additional Sessions Judge-HI, Quetta, vide judgment dated 31-7-2000. As a last resort Criminal Revision was filed assailing the abovementioned judgments which has also been rejected by the learned Single Judge vide impugned judgment. Heard Mr. Muhammad Aslam Chishti, Senior Advocate Supreme Court on behalf of petitioner and Mrs. Ashraf Abbas, A.O.R. For the State at length. It is to be noted here that Mr. Muhammad Aslam Chishti, Senior Advocate Supreme Court was permitted to appear and argue the case before this Court. We have carefully examined the respective contention as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. The judgments passed by Judicial Magistrate and learned Additional Sessions Judge have been perused carefully. We have also gone through the impugned judgment. A careful scrutiny of the entire prosecution evidence would reveal that prosecution has failed to establish the guilt beyond shadow of doubt. The statements of prosecution witnesses are silent as to how and in what manner the undertrial prisoner namely Jumma Khan managed his escape. The statement of prosecution witnesses are also silent regarding the role, if any, played by the petitioner in this regard. No iota of evidance available on the basis whereof it could be inferred that the petitioner was responsible for the said escape. It has been observed with some concern that the provisions as contained in section 223, P.P.C. Were not considered properly by the learned trial and Appellate Courts, and conclusion drawn by them was followed by the High Court without taking into consideration the object and scope of section 223, P.P.C. The main prerequisite in absence whereof, the provisions as contained in section 223, P.P.C.
4. Cannot be pressed into service is that the accused "must negligently suffer such person to escape".
5. It is the bounden duty of the prosecution to prove the "negligence" of a public servant which has resulted in such escape. We may mention here that during departmental proceedings initiated under Service Laws, the factum of "negligence" has its own peculiar characteristics. There is no cavil to the proposition that negligence is a term of art having multiple dimensions in different jurisdictions. It however, can be defined as "the omission to do an act which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing an act which reasonable and prudent man would not do. "Negligence" is the absence of such care, skill and diligence as it was the duty of the person to bring to the performance of the work which he is said not to have performed. There are three degrees of negligence: (1) ordinary: which is the want of ordinary diligence, (2) slight: the want of a great diligence, (3) gross: the want of even slight diligence. (Kedamath v. State AIR 1965 All. 233, Nemichand v. Commissioner, Nagpur Division Nagpur, ILR 1947 Nag. 256; 228 IC 525; 1947 NLJ 281. The factum of negligence as discussed hereinabove can be taken into consideration and negligence may be proved on the basis of presumption or surrounding circumstances while taking disciplinary action, but in criminal proceedings definite and concrete evidence would be required to prove the factum of negligence which is lacking in this case. There is no iota of evidence to show that proper custody of Jumma Khan was handed over to petitioner or he was factually included or physically present amongst the undertrial prisoners custody whereof was allegedly handed over to the petitioner. The remand order passed by learned Judicial Magistrate is also silent to the fact that Jumma Khan was produced before him. The remand appears to have been given without completion of mandatory legal requirement and such reckless conduct should be checked. Be as it may, when negligence is a part of the definition of a Penal Section it implied that the act constituting the offence must have been done by the accused himself and if it was accomplished by some one else, the accused cannot be held responsible for it. Criminal negligence can only be proved on the basis of solid and worthy of credence evidence which could not be produced by the prosecution.
6. We have also dilated upon the provisions as contained in section 34, P.P.C. In so far as section 34, P.P.C. Is concerned it deals with the acts done by several persons in furtherance of common intention. It is neither a punitive section nor does enact a rule of evidence but mainly relates to the concept of joint liability, it simply means that if two or more persons intentionally commit an offence jointly which amounts to as if each of them had committed it individually and they will have to share the consequences jointly subject to the condition that at the time of commission of offence each of them remained present (a mere presence at the spot would not be ipso facto sufficient to hold a person vicariously liable and sufficient evidence should be available to prove the factum of intention) and the offence was committed with common intention which presupposes prior concert. It must be proved that the offence was committed in concert pursuant to the prearranged plan. It was held a few decades earlier by this Court which still holds the fields that "it is well established that a common intention presupposes prior concert. It requires a pre- arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. The inference of common intention should never be reached unless it is a E necessary inference deducible from the circumstances of the case. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference or the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis". (1955) SCR 1083, (1955) Cr.LJ 572). It is also well-entrenched legal position that "the section is intended to meet a case in which it may be difficult to distinguish between the acts of individual members of a party who act in furtherance of common intention of all or to prove exactly what part was played by each of them. The principle which the section embodies is participation in some action with the common intention of committing a crime; once such participation is established, section 34 is at once attracted PLD 1969 SC 158, AIR 1960 SC 889, AIR 1956 All. 341 (DB). In the light of touchstone of criterion as mentioned hereinabove, the record would show that there is absolutely no evidence to suggest that the alleged offence has been committed in furtherance of common intention or pursuant to prior concert of mind or pre-arranged plan. If there is a lacuna in the evidence, the accused is entitled to have the benefit of the same. The burden is on the prosecution to prove that the accused is guilty, and if the evidence is not sufficient to bring the guilt home to the accused, there is no other option or course but to acquit the accused. As mentioned hereinabove that there is absolutely no evidence to establish certain points relating to accusation such as to whether the physical custody of Jumma Khan was handed over and at what particular point he managed to escape? Who was responsible at that particular juncture for the said escape and in whose custody he was at that particular moment? And what was the nature of the duty of each member of the Guard including the petitioner, A.S.-I. And Constables in whose charge the lock-up was? And who was responsible to, take undertrial prisoners to Court and for their safe return and whether Jumma Khan was physically produced before any Court and if so, by whom, are the questions which could not be answered by the prosecution and benefit whereof must be given to the petitioner.
7. In the light of foregoing discussion, we are of the considered opinion that prosecution has failed to prove the case beyond shadow of doubt and accordingly this criminal petition is converted into appeal and judgment passed by Judicial Magistrate-IV, Quetta. Dated 18-5-2000, learned Additional Sessions Judge-III, Quetta, dated 31-7-2000 and impugned judgment passed by learned Single Judge of, High Court of Balochistan, Quetta, are hereby set aside. The appeal is accepted and appellant is acquitted of the charge.