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Criminal Revision No. 240 of 1985, decided on 16th March, 1986.

‑‑‑Ss. 222, 223 & 225‑‑Prison Rules, R. 342‑‑Evidence, appreciation of‑‑Benefit of doubt‑‑ No reliable evidence forthcoming to connect accused Jail warders, with escape of condemned prisoners and accused roped in only for being present near about cell from where such prisoners escaped‑‑Safeguards provided by R. 342 of orison Rules for safe custody of prisoners, also not attended to by Assistant Superintendent Jail‑ Accused warders, held, could not be convicted under S. 222, 223 or 225, P.P.C. on mere assumptions or presumptions‑‑Accused given benefit of doubt and acquitted, in circumstances.

Q.M. Salim for Petitioners.

The Superintendent, District Jail, Jhang, by Letter No. 610 dated 24‑3‑1983, informed the Station House Officer, Kotwali Police Station, Jhang regarding the escape of four condemned prisoners, namely, Muhammad Nawaz, Abdul Aziz, Allah. Yar and Manzoor Hussain, from cell No.1, block No.3 of the District Jail, Jhang. They had been lodged in the said cell on the night between 23/24 March, 1983.

On the basis of the aforesaid letter, First Information Report was recorded at Police Station Kotwali, Jhang on 24‑3‑1983 at 6‑15 a.m. under section 224/225, P.P.C.

On the investigation, challan under section 223/224/225/225‑A/307/109, P.P.C. was filed in the Court of Magistrate Section 30, Jhang, against Mazhar Hussain, Muhammad Khan, Muhammad Amir, Ashiq Hussain Muhammad Chiragh, Muhammad Ashraf and Riasat Ali, all warders of the Jail. They were accordingly tried.

The trial Magistrate convicted Mazhar Hussain under section 225, P.P.C. and sentenced him to 4 years' R.I., Muhammad Khan, Muhammad Amir and Ashiq Hussain were convicted under section 223, P.P.C. and sentenced to 1 year's R.I. each. Muhammad Ashraf was convicted under section 222, P.P.C. and sentenced to 4 years R.I. Muhammad Chiragh and Riasat Ali were acquitted.

The convicts appealed to the Sessions Court. The appeal was heard and decided by an Additional Sessions Judge, who by judgment dated 244‑1985 acquitted Muhammad Khan and Ashiq Hussain, but maintained the conviction and sentence of Mazhar Hussain, Muhammad Ashraf and Muhammad Amir. They have now filed this revision.

Muhammad Azam Khan was Assistant Superintendent, District Jail, Jhang. It was on the morning of 24‑3‑1983, that at about 4 o'clock he heard alarm from the Jail. There was sound of bells and whistles. He rushed to the Jail. On the gate of the Jail, he met Rana Riaz Ahmad, Assistant Superintendent. Two/three other employees were also present. The witness went inside the gate and tried to operate the siren. That did not work. He then tried to break open the lock of armoury. There also he failed. Thereafter he telephoned to the Police for guard and was told that the guard was on its way. He then went back to Rana Riaz Ahmad and enquired from him‑as to what had happened. The latter told him that four condemned prisoners had escaped. Meanwhile, the Deputy Superintendent of the Jail also came there. All of them went to the place of occurrence and saw that the middle grating of the gate of cell No.1 of death cell block No.3 had been cut. Then they went to the spot from where the prisoners had managed to escape from the Jail. They found four Chaddars, tied with one and other, hanging on the wall. Those belonged to the prisoners. They also found four pairs of shoes and two Lathis near the wall. The witness stated that the Lathis appeared to have been snatched from the warders. A used cartridge was also found.

According to Muhammad Azam, while the inspection was going on, the police turned up. They were shown the scene of occurrence. In the verandah of cell block No.3, there was a 10 lbs. tin of Ghee, which was cut from its bottom.

There was also a cloth smudged with Ghee. Both the tin and the cloth were taken into possession by the police.

Ghulam Abbas (P. W.2) was a prisoner in the Jail when the occurrence took place. He was a Monitor. He stated that Muhammad Amir took him and other monitors out of the barrack to the scene of occurrence. They saw that two of the condemned prisoners, namely, Nawaz and Allah Yar had already climbed the wall. Aziz and Manzoor were standing near the wall inside the Jail. Then Aziz started climbing the wall. Manzoor followed him. He fell on the ground twice, but succeeded in the third attempt. When Ghulam Abbas, Amir and others went near the prisoners Manzoor fired two shots on them from carbine. Fateh Muhammad Patrolling Officer asked them not to go near the prisoners, because they had already killed a warder.

Habibur Rehman (P.W.5) was a prisoner in District Jail, Jhang from June, 1980 to March. 1984. He corroborated the statement of Ghulam Abbas. He also saw the prisoners escaping from the Jail. When he was taken from his barrack by Amir, Warder, alongwith Ghulam Abbas and others, he saw that two of the prisoners were sitting on the wall, one was climbing the wall while Manzoor was waiting for his turn. Manzoor fired with carbine at Habibur Rehman and others. Hafiz Fateh Muhammad, Warder, was on patrol. He stopped Habibur Rehman and others from going near the prisoners, because they (the prisoners) had already shot dead a constable. Thereafter, he was taken to this cell.

Abdul Qayyum (P.W.3) was appointed as Warder in the Jail on 23‑3‑1983. he was posted as Warrant Munshi in the Warrant Office of the Jail. He stated that nobody took any objectionable material into the Jail in his presence.

On 24‑3‑1983, the police asked from him about the record of the four prisoners. He delivered the same to them. He also gave death warrants of the prisoners to the police, who returned the warrants to him after perusal. He also produced register No. 2, containing the names of the prisoners for inspection of the police. That too was returned to the witness after having been inspected.

At this stage the witness was declared hostile on the request of the Prosecuting Sub‑Inspector. Thereafter the witness said that Chiragh (acquitted accused) did not take any tin of Ghee in the Jail in his presence. He denied if any such tin was passed through the Jail Deohri by Mazhar Hussain.

Muhammad Sharif (P.W.4) ran a vegetable shop opposite to the District Jail, Jhang. He stated that a year before a person came to him. He brought a tin of Ghee. That was for Mazhar Hussain, Warder. Then a man came to him and asked for the tin, but he refused to give him, because he did not know him. After a short while, Mazhar Hussain came to him and took away the tin towards the Jail gate. Sharif did not know what happened thereafter.

He denied the suggestion that his wife carried on the vegetable shop and he was a peddler. He admitted the Kotwali Police had taken him away on the day the prisoners had escaped. The police detained him at the night in the police station.

Next morning he was let off after recording his statement. In the evening the C.I.A. Staff caught hold of him from his shop. They kept him calling for 5/7 days and then recorded his statement.

He admitted that in the Kotwali Police Station he was shown the tin of Ghee. He, however, denied that the police had pressurised him to become a witness, or that he was recalcitrant. He admitted that he was once abused by the Kotwali Police. He stated that thereafter he was not abused or manhandled either by Kotwali Police or by tine C.I.A. Staff.

He did not remember the facial contour of the person who had left the tin of Ghee, nor of the person who first came to collect the tin.

He admitted that adjacent to his shop there were tea and retail shops. The owner of those shops was an ex‑employee of the Jail.

Abdul Sattar, Inspector, C.I.A. Jhang, partly investigated the case. He obtained copies of duty register of Warders, recorded statements of witnesses under section 161, Cr.P.C. and arrested the accused.

In his cross‑examination, the Inspector admitted that he had not obtained certified copies of the duty register nor had he brought the original record with him in the Court when he made his statement.

Javid Ali, S.I. C.I.A. Jhang (P.W.7) also partly investigated the case. He obtained report of the Chemical Examiner about the contents of stomach of Ashraf (petitioner).

Mukhtar Ali P.W.8 was Sub‑Inspector, Police Station, Kotwali, Jhang in March, 1983. He recorded the formal F.I.R. on receipt of letter of Superintendent, District Jail, Jhang. He inspected the place of occurrence and partly investigated the case.

This witness admitted in cross‑examination that in the site plan Exh.P.D., he did not show the place from where the tin of Ghee was recovered.

Muhammad Jahangir P.W.9 was Deputy Superintendent District Jail, Jhang, when the occurrence took place. On the night of occurrence, he was awakened by a Baghichha Kulli. He was told about the escape of prisoners. The witness inspected the place of occurrence from where the prisoners escaped. He informed the S.P., D.C. as well as the Inspector‑General of Prisons about the occurrence on telephone.

In his re‑examination, he stated that his statement was recorded by the police on 6‑4‑1983. The police visited the place of occurrence in his presence. The tin of Ghee he saw at the place of occurrence was cut from the bottom while the one shown to him in the Court was cut from the top and was a different one.

He admitted that he himself did not record statement of any Jail official nor did he hold any inquiry.

The petitioner denied the allegations. Muhammad Ashraf stated that Manzoor Ahmad, prisoner, had given him (petitioner) some intoxicant in the tea. He became senseless and did not know how the prisoners escaped. He was falsely implicated in the case.

Muhammad Amir stated that he was falsely involved in the case by the police in order to save a senior officer.

Similarly Mazhar Hussain stated that he was falsely roped in by the police in order to save Rana Riaz Ahmad, Assistant Superintendent.

While getting the statements recorded under section 342, Cr.P.C. the petitioners stated that they would like to lead evidence in defence but eventually they declined to do so.

The learned counsel for the petitioners laid great stress on the fact that the evidence on which the petitioners were convicted had already resulted in acquittal of Muhammad Chiragh and Riasat Ali by the trial Court, whereas Muhammad Khan and Ashiq Hussain were acquitted by the appellate Court. Hence it could not be used against the petitioners. The conviction and sentence of the petitioners as such was not legally maintainable.

Learned counsel then referred to rule 342 of the Pakistan Prison Rules, which deals with the search of condemned prisoners twice daily.

Under this rule, the Assistant Superintendent is required to have every condemned prisoner carefuly searched morning and evening, and also to have the cells carefully examined in his presence. He is to satisfy himself that the prisoner has no forbidden artic' in his possession, and that the cell is sound and secure. He is further required to examine the prisoners food and be present when it is issued. Carrying out of these duties has to be reported by him in the report book.

Counsel argued that the prosecution did not lead evidence to show that the rule had been complied with. As a matter of fact, no evidence was led to that effect. This meant that those Officers who were responsible for the escape of the prisoners were let off and the subordinate staff was roped in.

The learned counsel further contended that there was no evidence to connect the petitioners with the alleged offence. The conviction was recorded on mere assumption. I also heard the learned counsel for the State, who supported the impugned judgment of the appellate Court.

After going through the evidence I am of the view that the prosecution has not been able to prove its case beyond doubt. No reliable evidence is forthcoming to connect the petitioners with the escape of the condemned prisoners. It is clear from the evidence that no one bothered to make sure that the things were in order in case any emergency arose. It has come in evidence that the siren was out of order. Muhammad Azam Khan P.W. admitted that he could not even open the armoury. This shows lack of sense of duty of the Officers concerned and a clear case of negligence.

No evidence was led to show that rule 342 of the Pakistan Prison Rules was duly complied with , Rules are framed to be adhered A to and not simply to be noted on paper.

As a matter of fact, the entire prosecution evidence is very sketchy. In a haphazard manner the prosecution made a futile attempt to rope in persons present near about the cell from where the prisoner escaped. Conviction on such type of allegation cannot be based either on assumptions or presumptions. This would be contrary to law.

For the foregoing reasons I have no option but to accept this revision. The petitioners are acquitted. They shall be released forthwith, if not required in any other case.

S. G. D. Acquittal ordered.

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