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Criminal Appeal No. 14 of 1971, decided on 21st November 1973.

(On appeal from the order of the then High Court of West Pakistan, Lahore, dated the 5th of February 1968, in Criminal Appeal No. 483 of 1964).

---S. 224‑Escape from lawful custody‑Resistance or obstruction to lawful apprehension‑ Guards all around barrack with lights on making it difficult for detainee to escape without attracting notice‑Prosecution failing to prove negligence of any official in his duties‑Escaped accused though arrested several days after escape yet prosecution getting only a Sub‑Inspector to prove their arrest‑Prosecution not producing prisoners' tickets or gate keeper's register to prove accused as lawful detainees and their escape from custody‑Out of‑ two accused one concerned in a murder case but allegedly dead man found alive and as such accused acquitted‑Inspection notes relied upon to prove accused's escape not duly proved and thus inadmissible in evidence‑Order of remand passed by Magistrate relied upon to show appellants' re -arrest and remand to police custody not proved to show its concern with escape of accused appellants‑Accused, held, rightly acquitted in circumstances.‑[Evidence].

Akhtar Mir, Advocate Supreme Court instructed by Sh. Masood Akhtar, Advocate‑ on‑Record for Appellants.

Ch. Muhammad Ashraf, Advocate Supreme Court instructed by Sh. Ijaz Ali, Advocate‑ on‑Record for the State.

Date of hearing : 21st November 1973.

This appeal, by special leave, is from the order of the then High Court of West Pakistan, Lahore, setting aside the acquittal of the appellants under section 224 of the Pakistan Penal Code. Leave was granted to re‑examine certain features in the evidence of the case inasmuch the High Court had not discussed the evidence.

It appears that the two appellants along with one Khawind Bakhsh were tried by the Sub‑Divisional Magistrate, Rajanpur, on a charge under section 224 of the Pakistan Penal Code on the allegations that they had escaped from lawful custody while detained in Barrack No. 4 of the Judicial lock up at Rajhan between the night of the 20th and the 21st of May 1953. The two appellants had been concerned in a murder‑case, and Khawind Bakhsh in a theft case.

The prosecution examined four witnesses including the Head Constable of the police in charge of the lock‑up, and three employees' of the Jail in support of its case. The prosecution case, inter alia, was that a co‑accused Kamal had provided the accused with a saw for cutting the iron bars and this enabled the accused to cut the bars and escape. The seizure of this saw has not been proved. P. W. Miran who was the solitary witness against co -accused Kamal was not believed by the trial Court and Kamal was acquitted.

The sum and substance of the evidence of the rest of the P. W., viz., Nos. 1, 3 and 4 is that the accused escaped from the barrack. The bolt of the rear door of barrack No. 4 as well as one of the iron bars in the laterine of the barrack were found cut. P. W. 5 Sub‑Inspector Ch. Muhammad Aslam stated that he subsequently re‑arrested the accused persons.

The accused denied the charge and examined three defence witnesses, who were inmates of the jail, to show that the Muharrar and Constable had come to their barrack and themselves took away the accused with them. D. W. 1 Maula Bakhsh stated that Ch. Muhammad Aslam had asked the former to say that the accused fled from the Jail but the inmates refused to do so. This is supported by the other two defence witnesses. None of the defence witnesses was cross‑examined on the merit of his evidence. The learned Judges of the High Court have given no reason why they should be disbelieved.

The tenor of the prosecution evidence is that there were guards all around the barrack with lights on at night and it was difficult for a detainee to escape without attracting the notice of the authorities concerned. The prosecution has made no attempt to prove that any official of the barrack was negligent in his duties. Although the escaped accused persons were arrested several days after their escape the prosecution could Let only on person, namely, Sub‑Inspector Ch. Muhammad Aslam to prove their re- arrest. The prosecution has not produced the prisoners' tickets or the gate keeper's register in support of their case that the accused had been lawfully detained and that they escaped from lawful custody.

In the first information report of the present case there is an allegation that two of the accused were concerned in a murder case and one of them in a theft case. We are, however, told that in the murder case the person alleged to have been murdered was found alive and the accused appellants were acquitted.

The learned Judges of the High Court relied on certain inspection notes in support of the fact that the accused did really escape. The inspection notes were not duly proved and, therefore, it was not admissible in evidence. The order of remand passed by the Sub‑Divisional Magistrate was also relied on to show that the appellants were re‑arrested and remanded to the police custody. This remand order was, however, not proved to show that it con cerned the escape of the appellants.

In the aforesaid circumstances the only alternative left for the High Court was to refrain from interfering with the order of acquittal passed by the Magistrate on the ground that the prosecution failed to prove its case beyond any reasonable doubt.

The appeal is, accordingly, allowed and the conviction and sentences of the appellants are set aside, and they are directed to be discharged from their bail bonds.

Appeal allowed.

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