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 30-1-2001 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 dated 11-10- 2000 whereby the conviction under section 223, P.P.C. And six months' R.I. With fine of Rs,1,000 awarded by learned Judicial Magistrate, Quetta by means of judgment dated 20-9-2000 was kept intact.
2. Briefly stated the facts of the case as enumerated in the impugned judgment are to the effect that the occurrence is stated to have taken place on 31-3-2000 at about 6-30 a.m. Within Police Station Air Port. The report of incident was made by complainant Tariq Mehmood, A.S.-I. On 31-3- 2000 at 7-30 a.m. Alleging therein that two accused persons namely Saifullah and Muahmmad Sadiq who were arrested in Crime No,72/3000 for offence under section 13-E of the Arms Ordinance and F.I.R. No,293 of 1998 for offence under sections 147, 148, 149, 324, P.P.C. Respectively and detained in the lock-up were taken towards latrine by the present petitioner and acquitted accused Ghulam Muhammad, Head Constable without handcuffs. It was further alleged that while they were coming back after call of nature towards lock-up, one accused Saifullah made his escape good whereas, accused Muhammad Sadiq was locked up. It was the case of the prosecution that accused Saifullah escaped on account of negligence of the petitioner and acquitted accused. Accordingly: a case being Crime No,74/2000 Police Station Air Port under sections 223, 224, P.P.C. Was registered at the instance of Tariq Mehmood. During the course of investigation the petitioner and acquitted accused were arrested. After usual investigation they were sent to face their trial before the learned Judicial Magistrate-I/MFC, Quetta".
In order to substantiate the accusation prosecution produced Fazalur Rahman (P.W.1), Tariq Mehmood (P.W.2) and Muhammad Sadiq (P.W.3). The petitioner in his statement got recorded under section 342; Cr.P.0 professed innocence and also got recorded his statement on oath as contemplated under section 340(2), Cr.P.C. Stating that he had no concern whatsoever with the lock-up and the accused confined therein as initially Munshi Fazalur Rahman was responsible for their safe custody being the key holder of the lock-up. After conclusion of the trial the learned Judicial Magistrate convicted the petitioner under section 223, P.P.C. And sentenced to undergo six months' R.I.. With fine of Rs,1,000 and in case of default to further undergo S.I. For one month with benefit of section 382-B, Cr.P.C. The co-accused Ghulam Muhammad was also convicted and sentenced in the term as mentioned hereinabove. Being aggrieved an appeal was preferred which was rejected by the learned Additional Sessions Judge by means of order dated 11-10-2000 up to the extent of petitioner but co-accused namely Ghulam Muhammad was acquitted. The petitioner preferred a revision petition assailing the judgment passed by learned Additional Sessions Judge which was rejected by the learned High Court vide impugned judgment, hence this petition.
4. Heard Muhammad Nawaz (petitioner) in person and Mr. Akhtar Zaman, learned Additional Advocate-General, Balochistan for State.
5. We have carefully examined the rival contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment dated 20-9-2000 passed by learned Judicial Magistrate, judgment dated 11-10-2000 passed by learned Additional Sessions Judge as well as the impugned judgment.
6. A careful scrutiny of the entire evidence would reveal that prosecution has failed to establish the guilt by producing cogent and concrete evidence. A thorough analysis of the prosecution evidence would indicate that the petitioner was not responsible for the escape of accused Saifullah who was confined in the lock-up. The statement of Fazalur Rahman (P.W.1) appeared to be obliging one as a deliberate attempt has been made to save and exonerate Ghulam Muhammad and Tariq Mehmood (P.W.2) who was duty officer. The statement of Fazalur Rahman (P.W.1) is not worthy of credence being tainted with mala fides. It is worth-mentioning that Fazalur Rahman (P.W.1) has never stated that the petitioner was the custodian of the key for the lock-up and there is nothing on record to infer that the key was obtained by implying deceitful method or through force by the petitioner. Tariq Mehmood (P.W.2) has played a significant role in the episode being duty officer.
We have discarded his statment being interested witness as initially he was responsible to take all precautionary measures for the safe custody of the prisoners confined in the lock-up. Muhammad Sadiq (P.W.3) is the only independent prosecution witness who has not supported the prosecution version. On the basis of fake and sketchy statement tendered by Fazalur Rahman and Tariq Mehmood the question of any conviction does not arise. It is an admitted feature of the case that prisoner Saifullah was confined in the lock-up but the question which arises here at this juncture is that at whose direction he was brought out from the lock-up that too without handcuffs which could not be answered by the prosecution. There is no incriminating evidence to suggest that petitioner was responsible for opening the lock-up and taking the escaped prisoner to the latrine without being handcuffed. The learned Additional Advocate-General failed to point out any provisions of law whereby the petitioner was responsible for the safe custody of the lock-up which admittedly was never under his control or command because he was neither the key-holder nor authorized to remove the handcuffs of the escaped prisoner. Even otherwise in the presence of Tariq Mehmood (P.W.2/duty officer) the petitioner cannot be held responsible for opening the lock- up or taking the escaped prisoner to latrine without being handcuffed. It was observed by the learned Judicial Magistrate that "the duty officer A.S.-I. Tariq Mehmood was not included in the investigation and challan. Anyhow, this defect is not sufficient to absolve the accused persons from the alleged offence. Since, the accused persons have taken out the prisoners without handcuff for the call of nature, therefore, it transpired that the accused persons have manifested their negligence which resulted in the escape of the accused Saifullah from the lawful custody". The Appellate Court had also observed that "admittedly the prisoner Saifullah who was detained in Police Station Airport, Quetta on 31-3-2000 in a Crime No,73/2000 easily managed his escape good from the police custody due to poor precaution measurement of Muhammad Nawaz, Constable/Santari, Duty Officer Tariq Mehmood as well as Fazal-ur-Rehman, Assistant ShabMoharrir". It was also observed by the learned Appellate Court that Tariq Mehmood (P.W.2) being Duty Officer should not have been spared by the Police Department being responsible for the commission of alleged offence.
7. In view of the abovementioned observations as made by the learned trial and Appellate Courts, the petitioner alone cannot be held responsible for the escape of prisoner Saifullah. As mentioned hereinabove that no incriminating evidence is available on the basis whereof it could be inferred that the petitioner was responsible for the episode. It is to be noted that the provisions as contained in section 223, P.P.C. Were neither considered nor appreciated in its true perspective, which resulted in serious miscarriage of justice. The provision as enumerated in section 223, P.P.C.
Were discussed in case titled Muhammad Yaqoob v. The State (PLD 2001 SC 378) as follows: "The main prerequisite in absence whereof, the provisions as contained in section 223, P.P.C.
Cannot be pressed into service is that the accused 'must negligently suffer such person to escape'.
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 characteristic. 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 great diligence, (3) gross: the want of even slight diligence (Kedarnath v. State 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."
8. There is no iota of evidence to show that petitioner was either custodian of the lock-up or the lock-up was opened at his direction and Saifullah (escaped prisoner) was taken to latrine by his order without being handcuffed. It is worth mentioning that when negligence is a part of the definition of the penal section it implies that the act constituting the offence must have been done by the petitioner himself and if it was accomplished by someone else, the petitioner cannot be held responsible for it. There is no denying the fact that petitioner was on duty but the lock-up was not under his direct supervision or command. The escaped prisoner was taken out from the lock-up at the direction of Shab-Moharrir in the presence of Tariq Mehmood, A.S.-C./Duty Officer and the prosecution has failed to prove that it was exclusively the negligence of petitioner, or extended any facilitation in the said escape.
9. The learned Additional Advocate-General has referred rule 26(4)(2) of the Police Rules, 1934 and argued in a lukewarm manner that the petitioner could be held responsible for the said escape.
The provisions as contained in the abovementioned rule are as follows: "The door of lock-up shall not be opened except in the presence and by the direct order of officer commanding the guard, who shall take all possible precaution to prevent a rush or escape, when the circumstances of the use of particular lock-up are such that prisoners are constantly being admitted or removed, special standing orders for the safe conduct of the operation shall be framed by the Superintendent of Police and included in the standing orders for the guard over lock-up."
10. A bare perusal of the above rule would reveal that the door of lockup cannot be opened except in the presence and by the direct order officer commanding the guard and admittedly petitioner was not commanding it and accordingly the provisions as contained in said rule cannot be made applicable to the petitioner. The learned Additional Advocate-General also failed to point out as to whether any special standing order to avoid such eventualities was ever framed or issued by the Superintendent of Police concerned in this regard. It is worth-mentioning that various persons were sleeping in the room of S.H.O. And the key of the lock-up was with Munshi Fazalur Rahman who was on duty on the day of incident and thus the lock-up by no stretch of imagination can be held to be under the command of petitioner. The learned Courts below had also observed overwriting and cutting in Roznanicha Diary' and thus it is not possible to see that who was on duty but the said overwriting/interpolation makes it abundant clear that a serious attempt has been made to conceal the name of Shab-Moharrir who was on duty during the fateful night and the petitioner being the lowest official in the hierarchy has been made an escape goat. The Superintendent of Police and Deputy Superintendent of Police have failed to conduct proper inquiry with diligent application of mind and did not bother to see as to who was responsible for the safe custody of prisoners or in whose command the lock-up was and who was authorized to open the lock-up and what was the exact duty of Shab Moharrir and duty officer who were available at the place of incident alongwith the key of the lock-up.
11. After having gone through the entire prosecution evidence we are of the considered view that prosecution has failed to establish the guilt of petitioner. We are conscious of the fact that this petition is barred by 145 days but this Court generally condones delay in criminal cases. In this regard reference can be made to the dictum laid down in cases titled Muhammad Sadiq v.
Muhammad Sarwar (1979 SCM R 214), Sadiq v. The State (PLD 1967 SC 356) and Muhammad Bakhsh v. State (1985 SCM R 72). We are inclined to condone the delay as we are satisfied that the conviction of petitioner was illegal.
12. 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 learned Judicial Magistrate dated 20-9-2000, judgment dated 11- 10-2000 passed by learned Additional Sessions Judge and impugned judgment dated 30-1-2001 passed by learned High Court of Balochistan, Quetta are set aside. The appeal is accepted and the appellant is acquitted of the charge.