DEEDAR ALI SARIO, A.S.-I. and 4 otherss vs THE STATE
This matter concerns a bail application filed by five police constables accused of negligence leading to the escape of prisoners from police custody. The core legal question was whether the allegations against the applicants satisfied the essential ingredients of the offences charged under the Pakistan Penal Code, specifically sections 222 and 225-A, thereby justifying the denial of bail. The High Court held that the prosecution failed to establish the necessary elements of these offences, noting that the incident appeared to be a result of negligence rather than intentional facilitation of the escape. Relying on the principle that courts are not bound by the police's application of statutory provisions and must independently assess the facts, the Court found that the offences under sections 221, 222, and 223 of the Pakistan Penal Code are bailable. Consequently, the Court granted post-arrest bail to the applicants, emphasizing that the trial court must apply its own legal mind to determine the appropriate charges rather than relying solely on the prosecution's assertions.
- Are the offences under sections 221, 222, and 223 of the Pakistan Penal Code 1860 bailable?
- Is a court bound by the police's choice of statutory provisions when determining the nature of an offence?
- Does the escape of a prisoner due to negligence by police constables necessarily constitute an offence under section 225-A of the Pakistan Penal Code 1860?
- Section 221, Pakistan Penal Code 1860
- Section 222, Pakistan Penal Code 1860
- Section 223, Pakistan Penal Code 1860
- Section 225-A, Pakistan Penal Code 1860
- Section 225(iii), Pakistan Penal Code 1860
ORDER
1. ' KHILJI ARIF HUSSAIN, J.--- Heard Mr. Muhammad Ayaz Soomro Advocate for applicants and Mr. Muhammad Ismail Bhutto learned State counsel.
2. ' The allegations against the applicants who are police constables is that on 7th May, 2006 at 1630 hours, some accused persons in police custody in different cases escaped away due to deliberate negligence in performing official duties by the applicants.
3. ' Mr. Muhammad Ayaz Soomro, learned Advocate for the applicants argued that ingredients to attract sections 222 and 225-A of P.P.C. Are missing and applicants are entitled for the grant of bail.
4. In support of his contentions, he relied on the case of Muhammad Ramzan v. The State 2006 PCr.LJ 408.
5. ' Mr. Muhammad Ismail Bhutto, learned State Counsel opposed the application and argued that accused in custody of applicants were escaped due to negligence of applicants in discharging their duties.
6. I have gone through the contents of the F.I.R. And from the perusal of F.I.R. It appears that at 1540 hours, applicant No,2, Ashique Ali opened the lock-up to serve the meal to the accused persons in lockup and the accused persons by pushing succeeded to escape away from the police custody.
7. From the perusal of F.I.R. It appears that ingredients of sections 222 and 225-A, P.P.C. Are missing. In the case of Muhammad Ramzan (supra) it was held:-- "According to police, the prisoner had escaped due to the negligence of the applicants. The trial Court, while rejecting the bail application, has also observed that the prisoner had escaped due to the gross negligence of the applicants. Though, at present sufficient evidence is not available with the prosecution to show that the applicants had intentionally allowed or aided the prisoner to escape, the offence of intentionally allowing escape, falling under section 221, P.P.C., is also bailable.
8. The offences under sections 221, 222 and 223, P.P.C., are also bailable. The trial Court has rejected the bail application only on the ground that the police had subsequently applied section 225(iii), P.P.C. This section has no application so for the applicants are concerned. It applies to the cases of intentionally offering resistance or obstruction in apprehending offenders or rescuing them from custody. None of the applicants is alleged to have offered any resistance in apprehending any offender or rescued or attempted to rescue any prisoner. The. Court is not bound by the ipsi dixit of police particularly in the matters of the application of proper section. It, being more expert in the field of law, has to apply its own mind and find out the proper provision of law applicable to the facts and circumstances of a case."
9. ' Since very ingredients of sections 222 and 225-A are missing, and it is yet to establish whether applicants intentionally help in rescuing accused persons from custody or not. The applicants are admitted to bail subject to furnishing surety in the sum of Rs,50,000 each with P.R. Bond of the like amount to the satisfaction of the trial Court.
10. ' The observations made hereinabove are tentative in nature and while deciding the case, learned trial Court should not be influenced by the same.