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Official Citation: 2024 YLR 70
Court / Jurisdiction: Sindh High Court
Year of Decision: 2022
Decision Date: 2022-03-25
Parties: Abdul Rehman Shaikh and others vs The State
Ruling Summary: This decision was rendered by the Sindh High Court on 2022-03-25, officially reported as 2024 YLR 70. In this matter between Abdul Rehman Shaikh and others and The State, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024 YLR 70
Court Name: Sindh High Court Judge(s): Muhammad Karim Khan Agha, Khadim Hussain Tunio Title: Abdul Rehman Shaikh and others vs The State Case No.: Special Criminal A.T.As. Nos. 282, 283, 288, 291, 294 to 298 and 304 of 2019 Date of Judgment:2022-03-25 Reported As: 2024 YLR 70 Result: Order accordingly
JUDGMENT
JUDGMENT MOHAMMAD KARIM KHAN AGHA, J. The appellants Abdul Rehman Shaikh son of Qutubuddin, Rafiq Ahmed Channa son of Ghulam Nabi, Ghulam Murtaza Shaikh son of Ghulam Mustafa Shaikh, Salik Ayaz son of Amjad Ali, Nadir Hussain son of Dur Muhammad, Raja Muhammad Sajjad son of Muhammad Asghar, Muhammad Taghyal Mehar son of Naseer Muhammad Mehar, Farosh Muhammad son of Shireen, Yasir Ali son of Din Muhammad, Naveed Ahmed Khan son of Muhammad Ahmed Khan, Saeed Ahmed son of Abdul Aziz, Faheem Anwar Memon son of Anwar Qadir Memon, Atta Muhammad son of Muhammad Bux and Abdul Ghafoor son of Haji Suleman have preferred these appeals against the judgment dated 12.10.2019 passed by learned Anti- Terrorism Court No.XIX, Karachi in Special Case No.121/2017 arising out of Crime No.149/2017 under sections 223, 224, 225-A, 114, 216, 34, P.P.C. read with section 7 of ATA, 1997, registered at Police Station New Town, Karachi whereby the appellants were convicted and sentenced as under:- 1) Accused persons were convicted under section 265-H(2), Cr.P.C. for committing offence under section 223, P.P.C. to suffer S.I. for two (02) years and fine of Rs.2000/- each and in case of default of payment of fine, they shall suffer S.I. for one month more. 2) Accused persons were convicted under section 265-H (2) Cr.P.C. for committing offence under section 225-A, P.P.C. to suffer S.I. for two (02) years and fine of Rs.2000/- each and in case of default of payment of fine, they shall suffer S.I. for one month more. 3) Accused persons were convicted for committing offence under section 7(g) of ATA, 1997 to suffer S.I. for two (02) years and fine of Rs.2000/- each and in case of default of payment of fine, they shall suffer S.I. for one month more.
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All the sentences were ordered to be run concurrently. The benefit of S.382-B Cr.P.C. was also extended to all the accused. 2. The brief facts of the prosecution case are that on 14.06.2017, Ashraf Ali Nizamani, Deputy Inspector General of Prisons at Karachi Region (the complainant) vide his letter No. Secret 01/2017 dated 14.06.2017 got an FIR registered regarding escape of two UTPs Shaikh Muhammad Mumtaz alias Firoon alias Sher Khana alias Shahzad alias Bhai son of Shaikh Muhammad Muslim alias Shaikh Muhammad Aslam alias Muhammad Saleem and Muhammad alias Munna son of Muhammad Shafi from Judicial Complex of Central Prison Karachi. It was informed that above two UTPs were found missing and reported to have escaped away from Judicial Complex adjacent to Central Prison, Karachi. The complainant requested for registration of FIR under relevant sections of law against officials viz. Ghulam Murtaza Shaikh Superintendent, Faheem Anwar Memon, Deputy Superintendent, Abdul Rehman Shaikh, Assistant Superintendent, ASI Faroosh Muhammad, SPC Nawab Ali, Atta Muhammad, PC Muhammad Amir, PC Abdul Ghafoor, PC Saeed Ahmed, PC Muhammad Sajjad, PC Taghyal and PC Nadir Hussain regarding their negligence in escape of UTPs. The complainant has also mentioned the list of cases in which escapee UTPs were facing trial. 3. On receipt of such letter ASI Muhammad Sharif registered the FIR under sections 223/224/225/225-A, P.P.C. against the two UTPs and above 12 officials/accused persons. After usual investigation challan was submitted against them in the court of Administrative Judge of ATCs of High Court of Sindh Karachi and the same was sent to the ATC-VIII for disposal according to law. 4. The prosecution in order to prove its case examined 27 witnesses and exhibited various documents and other items. The statements of accused were recorded under Section 342, Cr.P.C. in which they denied the allegations levelled against them. None of the accused gave evidence on oath and none of the accused called any DW in support of their defence case. After appreciating the evidence on record the trial court convicted the appellants and sentenced them as stated above, hence, the appellants have filed these appeals against their convictions. 5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 12.10.2019 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 6. Learned counsel for the appellant Ghulam Murtaza Shaikh who was jail superintendent at the time of the escape of the UTP's has contended that although he was responsible for the security and management of the jail he had only been appointed 29 days before the incident and although the jail was. in a mess being flooded with contraband items he had done his best to bring things under control by issuing two office orders assigning particular responsibilities to jail officials; contacted the Government of Sindh bringing to its attention the over crowding in the jail and lack of staff which was making it difficult to manage the jail efficiently and requesting for more staff; that he had also written to the Rangers requesting that some of their staff be released to assist him in searching the jail to confiscate any contraband items; that he was not responsible for micro managing the jail and he had to rely on his staff in ensuring that his office orders were carried out and that they fulfilled their own individual responsibilities for example by ensuring that accused were only produced before ATC courts pursuant to production orders and ensuring that all returned after court proceedings to the barracks; that he had not committed negligence in any criminal sense of its meaning and nor could he be held responsible for the escape keeping in view Prison Rules, 693 and 948 and thus for any or all of the above reasons he should be acquitted of the charge by being extended the benefit of the doubt. 7. Learned counsel for the appellant Faheem Anwar Memon who was Deputy Superintendant of the jail at the time when the UTP's escaped contended that no specific role had been given against him in the charge sheet which made it hard for him to prepare his defence and as such the charge was defective; that the UTP's had not escaped from the prison barracks but had escaped from the
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judicial complex which was not under his control and as such he could have no responsibility in respect of the escapees; that ASI Faroosh had the responsibility for UTP's whilst they were in the ATC complex attached to the jail so he was guilty of negligence and not any one else if the UTP's escaped from the judicial complex where the bars had been broken to facilitate their escape and cutting items recovered especially as the escapees after being brought before the ATC court were never returned to the jail premises; that he had no responsibility in respect of sending UTP's to the ATC court and as such could not be liable if they escaped from the ATC courts; that his duty was limited to Rule 705 of the Prison Rules and the log which showed the counting of the UTP's after their return from the ATC complex had been signed by appellants Salek, Naveed and Ghulam Murtaza so if there had been any miscounting they were responsible for it and thus for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. 8. Learned counsel for appellant Abdul Rehman who was Assistant Superintendent of the jail at the time of the jail break contended that he was not named in the FIR; that it was not his job to bring the UTP's to the ATC's; that he was hearing officer on the day in question as well as Tower in charge who hears the complaints of the prisoners and thus had no responsibility in respect of the UTP's who escaped from jail and no responsibility with respect to barrack 25 and 26 where the UTP's who escaped were lodged and thus for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. 9. Learned counsel for appellant Naveed Ahmed who was Assistant Superintendent of the jail at the time of the jail break contended that he was not named in the FIR; that he was only arrested during the course of the investigation; that he had no role in sending the escapees to the Judicial complex from where they escaped and this was not one of his duties; that no PW had deposed against him and that the responsibility of dealing with the escapees rested with appellants constables Nawab Ali, Atta Hussain and Ghafoor whose job it was to look after barrack 25 and 26 where the escapees were lodged and thus for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. 10. Learned counsel for Salek Ayaz who was Assistant Superintendant of the jail at the time of the jail break contended that he was not named in the FIR; that no PW had deposed against him; that he had no concern with the UTP's and as such had not committed any negligence and should be acquitted of the charge by extending him the benefit of the doubt. 11. Learned counsel for appellant Saeed who was a police constable posted at ATC VII at the time of the jail break contended that no UTP was handed over to him and that no evidence had been brought on record to show that he had any involvement in the escape of the UTP and certainly the provisions regarded the ATC were not attracted to the case based on the particular (acts and circumstances of this case and thus for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. 12. Learned counsel for appellants Nadir, Sajjad and Tagial who were all police constables contended that the appellants were all on guard duty at ATC's 11 and 12 at the time of the incident and that they never came into contact with the UTP's who were not produced before their ATC's on the day of the incident; that the UTP's which they did take custody of at the ATC's were all safely returned to jail after appearing in the ATC's and as such they had played no role in the escape of the two UTP's; that no PW had deposed against them and that they were all exonerated after a detailed inquiry into the aspect of negligence shown by jail staff after the jail break. He however conceded that appellant Farosh who was a police constable was responsible for those UTP's in the ATC complex at the time of the incident but contended that all the appellants should be acquitted by being extended the benefit of the doubt.
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13. Learned counsel for appellants Muhammed Atta and Abdul Ghafoor who were police constables at the time of the incident contended that both the appellants had nothing to do with the UTP's who escaped; that no evidence had come on record against them and as such they should be acquitted of the charge by being extended the benefit of the doubt. 14. Learned counsel for appellant Rafique Channa who was head clerk at the time of the incident contended that he was an office worker in the main block of the prison and had nothing to do with production orders or UTP's; that he only dealt with general administrative work; that he was not named in the FIR or any statement made by the complainant; that he had not signed any document; that he had only been implicated by co-accused Nawab who had now. Died who had not even given a confession before a magistrate and other wise there was not, a shred, of evidence against him; that even PW Arshad whose implication had been proven in this case had not said a single word against him and as such he should be acquitted by being extended the benefit of the doubt. 15. Learned counsel for appellant Yasir Ali who was a clerk working with appellant Rafique Channa adopted the same arguments as Rafique Channa and contended that the only evidence on record was against Arshad who had been found by a hand writing expert to have added the name of one of the escaped UTP's for his production before the concerned court on the day in question and as such if any one was to blame for the escaping UTP's being brought out of their ward and produced before the court it was Arshad and not him and as such he should be .acquitted by being extended the benefit of the doubt especially as he was not present being on leave that day. 16. In support of their contentions learned counsel for the appellants placed reliance on the cases of Ghulam Hussain and others v. The State and others (PLD 2020 Supreme Court 61), Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others (PLD 2018 Supreme Court 178), Muhammad Nawaz v. The State (PLD 2002 Supreme Court 287), Muhammad Yaqoob, Sub-Inspector v. The State (PLD 2001Supreme Court 378), Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630), Muhammad Rashid alias Master and another v. The State (SBLR 2016 Sindh 1347), Azeem Khan and another v. Muahid Khan and others (2016 SCMR 274), Muhammad Mansha v. The State (2018 SCMR 772), Abdul Khaliq v. The State (2006 SCMR 1886), Irfan and another v. Muhammad Yousaf and another (2016 SCMR 1190), Bashir Ahmed and another v. The State (PLD 2020 Sindh 202), Hashim Qasim and another v. The State (2017 SCMR 986), The State v. Muhammad Shafique alias Pappo and another (PLD 2004 Supreme Court 39), Muhammad Nawaz and others v. The State and others (2016 SCMR 267), Qaddan and others v. The State (2017 SCMR 148), Abdul Razzaq Butt v. Kalsoom Bibi (1999 MLD 30), (a full bench Judgment by the Supreme Court dated 11.10.2019 in Civil Appeal No.1772 of 2008 and others PLD 2019 SC 749), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 Supreme Court 1445), HC Muhammad Khan and 3 others v. The State (PLD 2017 Sindh 723), Allahi Bux and 7 others v. The State (2007 MLD 39), Mazhar Hussain and others v. The State (1986 PCr.LJ 2842), Ahsan Ali v. Emperor (AIR 1919 Lahore 229), a Judgment of Allahabad High Court (Durga Prasad v. Emperor dated 19th July, 1910 and Muhammad Shah v. The State (2010 SCMR 2009). 17. On the other hand Additional Prosecutor General appearing on behalf of the State has fully supported the impugned Judgment. He contended from the evidence on record the only possible inference based on the circumstantial evidence was that all the appellants were negligent in their official duties which lead to the escape of the two dangerous UTP's and as such all the appeals should be dismissed as being without merit. In support of his contentions he has placed reliance on the cases of Ali Ahmad v. The State (PLD 2020 SC 201), MD Nazir Hossain Sarkar v. The State
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(1969 SCMR 388), Wazir Muhammad v. The State (2005 SCMR 277) and Abdur Rehman Alias Boota v. The State (2011 SCMR 34). 18. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the learned counsel for the appellants, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar. 19. At the outset we find it both extremely alarming and shocking that two such high profile UTP's who were facing trial in many heinous cases of murder could literally waltz out of the Central Prison Karachi which is one of the highest security prisons in Sindh and their absence remain unnoticed for a whole day and night. There was no secret tunnel or escape whilst being brought to trial outside the jail or fire fight by armed persons within the jail which resulted in their escape or caused any injury let alone loss of life. The two extremely dangerous UTP's it appears from the evidence were taken out of secure custody to the judicial complex which is within the boundaries of the jail without proper production orders whereupon as mentioned earlier they appeared to have simply strolled out under the eyes of the prison guards who did not even notice their absence for a day and a night. Just the above narration of events before even looking at the evidence prima facie screams out a case at a minimum of negligence on the part of the jail authorities who were supposed to ensure the continued custody of the two escaped UTPs. The irony of course being that such trials concerning heinous offences are held within the boundaries of central prison Karachi in a specially constructed judicial complex to ensure both an expeditious trial of the accused as per Article 10(A) of the Constitution but also to ensure that potentially dangerous and most hardened criminals are prevented from escaping when produced from prison whilst being transported to the trial courts in the city of Karachi and then returned to prison. 20. We are not so nave to not realize that contraband, phones and other prohibited articles also make their way into other jails in even developed countries as prisons world wide seem to have such problems but it is still the responsibility of prison officers in Pakistan to apply the relevant law and rules strictly and reduce if not eliminate such activities rather than turning the proverbial blind eye to them whilst ignoring the relevant rules. We also appreciate that most prisons in the world are over populated and understaffed since they appear to be regarded as a low priority in terms of budget allocation none the less those in charge of the prisons must still perform their duties and functions efficiently and in accordance with law and the relevant rules in a diligent manner without negligence or their part. We do however recognize that it is high time that such issues are addressed by the Provincial authorities and that more prisons are built in the province so that those confined therein can live in dignified conditions as envisaged by Article 14 of the Constitution which concerns the inviolability of the dignity of man especially if the concept of reformation is one of our penal objectives. Wiser men than us have observed that the manner in which a Society treats its prisoners is often a reflection on that society as a whole itself. 21. The accused being prison officers have in effect been charged and convicted of negligence in performing their duties by not preventing and in essence enabling two hardened UTP's to escape from Central Prison Karachi on 13.06.2017 and not realizing that such dangerous prisoners were even missing until the next day in violation of Sections 223 and 225-A, P.P.C. which are set out below for ease of reference; 223. Escape from confinement or custody negligently suffered by public servant. Whoever, being a public servant legally bound as such public servant to keep in confinement any person charged with or convicted of any offence [or lawfully committed to custody], negligently suffers such persons to escape from confinement, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.
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225-A. Omission to apprehend, or sufferance or escape, on part of public servant, in cases not otherwise provided for. Whoever, being a public servant legally bound as such public servant to apprehend, or to keep in confinement, any person in any case not provided for in section 221, section 222 or section 223, or in any other law for the time being in force, omits to apprehend that person or suffers him to escape from confinement shall be punished; (a) if he does so intentionally, with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and (b) if he does so negligently, with simple imprisonment for a term which may extend to two years, or with fine or with both: 22. One of the key questions of law before us is what actually amounts to criminal negligence for the purposes of Sections 223 and 225A, P.P.C. 23. In the case of Muhammed Yaqoob v. State (PLD 2001 SC 378) which is a similar case which also concerned a jail break where a prisoner had escaped after being produced before a trial court it was held as under as what amounted to criminal negligence under section 223, P.P.C. in the following terms at P.382; "There is no cavil to the proposition that negligence is a term of art having 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, A 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. (Kedarnath 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 hereinabove can be taken into consideration and negligence may be proved on the basis of presumption or surrounding, circumstances while B 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 someone 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". (bold added) 24. In this case some of the appellants have contended that they could not be held liable under section 223 as interpreted by the Supreme Court in Muhammed Yaqoob's case (Supra) as they were not personally negligent. We find for the reasons mentioned below that most of the appellants were personally negligent in the performance of their duties which allowed the UTP's to escape keeping in view their senior positions and functions for the reasons elucidated later in this judgment. 25. With regard to the charge the sections cited therein which the appellants had been charged with and the use of the word negligence in the charge made it abundantly clear that the appellants were facing a trial regarding their negligent conduct which lead to the escape of two dangerous UTP's and as such they had full notice from the outset of the charge of negligence which they had to defend themselves against and as such we find no defects in the charge.
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Categories of Appellants. 26. The appellants essentially split into three categories (a) More senior officers serving at the jail being Ghulam Murtaza Shaikh, Faheem Anwar Memon, Abdul Rehman Shaikh, Naveed Ahmed and Salik Ayaz (b) Office clerks serving at the jail being Rafique Channa and Yasir Ali and (c) Police constables/ASI's serving at the jail being Saeed, Nadir, Sajjid, Tagial, Muhammed Farosh, Atta Muhammed and Abdul Ghafoor. 27. It is noted that the appellants being public servants and being trustees of the public in ensuring that all prisoners in the jail, some for very heinous crimes such as the two escapee UTP's, had an obligation to keep such prisoners within the boundaries of the prison and not let them escape by any means and thus had an added duty of care towards the public as if such prisoners managed to escape they might not only cause havoc in society but also might seek reprisals against those who had testified against them or were yet to testify against them and as such their duty of care was magnified. The public must also have confidence in the prison system that no prisoner and in particular dangerous and hardened criminals can escape and are securely confined. Negligence of more senior officers serving at the jail at the time of the escape of the UTP's. 28. With regard to appellants Ghulam Murtaza Shaikh who was posted as Superintendant, Faheem Anwar Memon who was posted as Deputy Superintendant,…
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