IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Revision Appln. No. S- 52 of 2016.

 

1.       H.C Abdul Ghani Mahar.

2.       P.C Azad Khan Noonari.

                                                                   …...………...Applicants.

 

Versus

 

The State.                                                   ...…...…..….Respondent.

 

         

Messrs Ali Nawaz Junejo and Shafi Muhammad Mahar, Advocates for the applicants.

          Mr. Sharafuddin Kanhar, A.P.G.

 

Date of hearing:             16.04.2018.

Date of Judgment:                    16.04.2018.

 

JUDGMENT

 

Amjad Ali Sahito, J-.   Through this criminal revision the applicants have challenged the judgment dated 25.08.2016 passed by learned 2nd Additional Sessions Judge, Jacobabad, whereby he has maintained the conviction and sentence awarded to applicants by learned 2nd Civil Judge and Judicial Magistrate, Jacobabad, vide judgment dated 18.03.2016. 

 

2.       The applicants were tried by the learned 2nd Civil Judge and Judicial Magistrate, Jacobabad, in the case vide Crime No.86/2013 of Police Station A-Section Thull for offence under Sections 223 and 224 P.P.C, who convicted applicants for offence under Sections 223 P.P.C and sentenced them to suffer six months rigorous imprisonment and pay fine of Rs.10,000/- and in default in payment of fine to undergo S.I for two months. 

 

3.       The applicants preferred appeal before learned Sessions Judge, Jacobabad, vide Criminal Appeal No.03/2016, which was ultimately made over to the learned 2nd Additional Sessions Judge, Larkana, who dismissed the appeal while maintaining the conviction and sentence recorded by the learned trial Court. 

 

4.       Being aggrieved, the applicants have filed present criminal revision application before this Court.

 

5.       The facts of the prosecution case as unfolded in the F.I.R lodged by complainant Sub Inspector Muhammad Sharif Brohi at P.S A-Section Thull on behalf of the State are that on the eventful night, he left police station vide entry No.28, at 1940 hours alongwith P.C Zafar Ali, PC Siddique and driver PC Munir Ahmed for patrolling and during patrolling at 2345 hours, he was called by H.C Abdul Ghani on mobile phone that accused Shahzado has escaped away from police custody from police lockup of P.S Thull, who was in police custody in Crime No.84/2013 and 85/2013, as such the complainant returned back to police station and visited the place of vardat and found that the roof of police lockup was broken. Thereafter, the complainant got registered F.I.R against applicants H.C Abdul Ghani, PC Azad and accused Shahzado for the offences punishable under Sections 224 and 225-A P.P.C.  Ultimately, on completion of usual investigation the challan of the case was filed.

 

6.       During course of trial, formal charge was framed against the applicants at Ex.6 by the learned trial Court, to which accused pleaded not guilty and claimed trial and at trial the prosecution examined in all three witnesses, namely, PC Muhammad Ayoob at Ex.7, PC Muhammad Siddique at Ex.8 and SIP Muhammad Sharif at Ex.9. Thereafter the prosecution side was closed vide statement by Prosecutor as Ex.13.

 

7.       The statements of applicants were recorded under Section 342 Cr.P.C at Ex.14 and Ex.15, in which they denied the allegations leveled against them and pleaded their innocence.

 

8.       Learned counsel for applicants argued that, the prosecution has totally failed to prove its case against the appellants for offence under Section 223 P.P.C, for which the applicants have been convicted and sentenced. Per learned counsel, on the basis of evidence produced at trial the applicants cannot be held responsible for the escape of accused Shahzado from police lockup. Lastly, he prayed for acquittal of applicants in the case.

 

9.       On the other hand, learned A.P.G. appearing for the State supported the impugned judgments passed by learned trial Court as well as appellate Court. 

 

10.     I have heard the learned counsel for applicants, as well as learned A.P.G and have gone through the entire record.

 

11.     It is case of prosecution that appellants were deployed/ posted at Police Station A-Section Thull; the appellant H.C Abdul Ghani is said to be Night-Incharge at Police station while P.C Azad is said to be was on “Sentry” duty and during their duty hours, accused Shahzado alias Shado Buriro who was confined in the lockup of said police station in crime No.84 and 85 of 2013, succeeded to run away by breaking the roof of police lock-up due to negligence of the applicants. Perusal of record shows that the applicants/ accused have taken plea that said accused Shahzado escaped due to absence of light and darkness by breaking the roof of lock-up, as according to them the building of the lockup is too old. The fact of old age of building is admitted by the prosecution witnesses, namely, Muhammad Ayoob and Hamza Khan by stating that “it is correct to suggest that the building of P.S as well as lockup was constructed in 1908 and since then no repair work is done”. Another fact of non-availability of light/ electricity has been on the eventful night is admitted by PW/ PC Hamza Khan in his cross-examination by saying that “when the incident had taken place there was no light at Police station”.  It has also come on record through evidence of PW/ PC Hamza Khan that “there was no facility for sentry to see upper portion of roof of police lockup from anywhere”. It has further come in evidence that “Night-Incharge and Guard/ Sentry used to be present at the outer door of lockup for security purpose and that in case of emergency the Night-Incharge used to receive complaint of anyone while sitting in the office”. It is further noted, that prosecution has failed to bring on record the fact that how many police personnel were available on duty on the eventful night and no any proof/ entry with regard to deployment of the present applicant has been brought on record. Generally, there remain many police personnel available on duty at police station, but except applicants no any other police personnel has been booked and blamed for the alleged offence.  The reliance is placed upon the case of Muhammad Nawaz v. The State (PLD 2002 Supreme Court 287), wherein the Hon’ble Supreme Court of Pakistan has held that:

 

                   8. --------------------------

 “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.”

 

12.     In view of above referred evidence and factors, it is held that the prosecution has failed to prove that it was exclusively the negligence of the applicants or that they extended any facilitation in the escape of accused Shahzado. On the contrary, it seems that accused Shahzado managed to his escape good from the police lockup due to poor precaution measures of the department and the applicants cannot be held solely responsible for the commission of alleged offence.

 

13.     For the foregoing reasons, the instant criminal revision is allowed; the impugned judgments of learned trial Court and appellate Court are set aside and applicants are acquitted from the charge. The applicants are present on bail, their bail bonds stand cancelled and surety discharged.

 

 

                                                                JUDGE

Ansari/*