ALLAHI BUX and 7 otherss vs THE STATE

1. ' RAHMAT HUSSAIN JAFFERI, J.---Brief facts giving rise to the present appeal are that in the night between 15 and 16 of July, 1996 some undertrial prisoners broke the District Jail Sukkur and ran away from there. Therefore, a case for offence punishable under sections 120 and 109, P.P.C. "read with section 5(2), Act II of 1947 was registered against 16 officials of District Jail including the appellants. After the trial the appellants were convicted for offence punishable under section 223, P.P.C. And sentenced to suffer R.I. For two years and fine of Rs,2000 each or in default thereof to suffer R.I. For two months more with benefit of section 382-B, Cr.P.C. Under the impugned judgment, dated 18-12-1998.

2. ' I have heard the Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully.

3. ' Learned Advocate for the appellant has stated that the learned trial Judge relied upon the enquiry report Exh.25-D prepared by P.W.2. That the said report is not binding upon the Court; that the independent evidence should have been led to show that the appellants were on duty at the time of the incident therefore, without such evidence the appellants cannot be convicted. The learned A.A.-G. Has conceded the above position and has not supported the impugned judgment.

4. ' I have given due consideration to the arguments, gone through the record and found that the learned trial Judge has convicted the appellants solely on the inquiry report Exh.25-D, prepared by P.W.2 who was D.I.G. Jail at the relevant time. According to his evidence he conducted the enquiry and submitted the said report. P.W.2 did not A specifically state in the evidence that the appellants were on duty at the relevant time. The enquiry report is the opinion of the P.W.2 that is not binding upon the Court. During the enquiry P.W.2 must have examined the record and recorded the statements of the witnesses. If theprosecution wanted to prove the case then the material which was placed before the Enquiry Officer should have been produced before the Court so as to form its independent opinion about the allegation. Without such evidence the Court cannot form its independent opinion hence merely on the report of the P.W.2 it cannot be held that the appellants were on duty at the relevant time. If the appellants were on duty there must have been some record with the prosecution. The said record should have been produced before the Court for examination but no such record has been produced before the Court. Therefore, the learned A.A.-G.

5. Was right in saying that there was nothing before the trial Court to form its independent opinion about the involvement of the appellants, therefore, he has not supported the impugned judgment.

6. ' After considering the material available on the record I am of the considered view that the prosecution has failed to prove the case against appellants beyond any reasonable doubt therefore the appellants are entitled to the benefit of doubt, which was accordingly given to them while passing short order, dated 23-8-2006 by which I had allowed the appeal. These are the reasons to the said short order.