2002 P Cr (PLP)

MUHAMMAD ROSHAN ESSANI, J.

By this criminal miscellaneous application the applicant has sought following reliefs:-- "(a) This Honourable Court may be pleased to appoint any official of this Honourable Court to conduct raid at Police Station Chotiari and connected staff residence, recover the detenus, and produce before this Honourable Court and on their production detenus may be dealt according to law. (b) Any other relief this Honourable Court deems fit and proper under circumstances may also be granted. (c) Applicant may be awarded cost." The brief facts of the case as disclosed by the applicant in the application are that he is brother of detainee Ghulam Rasool and brother -in-law of detainee Rasool Bux. On 16-4-2001, detainees and cousin of applicant namely Ghulam Ali were illegally arrested by S.H.O. Police Station Sinjhoro and they were detained wrongfully. The S.H.O. Police Station Sinjhoro claimed that the detainees were required by the police in a case of kidnapping and after investigation they would be released. During the course of investigation the police only released one Ghulam Ali cousin of the applicant. The D.S.P. through W.H.C. Saif Khaskheli demanded illegal gratification for the release of the present detainees. The demand of the police was not fulfilled, therefore, the detainees were illegally detained at Police Station Sinjhoro on the pretext that they were required by the S.H.O. Police Station Sinjhoro in Crime No.29 of 2001 of Police Station Sinjhoro under sections 402. and 399, P.P.C. The S.H.O. Police Station Sinjhoro did not produce the detainees before any Court of law and in their absentia he submitted the charge-sheet before the concerned Court showing them as absconders. The father of the applicant and other relatives of the detainees approached the S. S. P. Sanghar, Monitoring Cell Sanghar, D. I.-G. Police Mirpurkhas and other high ups, but the detainees were not released and the police shown ignorance with regard to their custody. On 14-7-2001, the father of the applicant filed application under section 491, Cr.P.C. in this Court vide Criminal Miscellaneous Application No.365 of 2001 praying therein for direction to S.H.O. Police Station Sinjhorq for the production of the detainees. This Court issued notice to learned Additional Advocate-General. In the meanwhile S..H.O. Police Station Sinjhoro and D.S.P. Sanghar shifted the detainees to some unknown place. On 26-7-2001, S.H.O. Police Station Sinjhoro appeared before this Court in Criminal Miscellaneous Application No-.365 of 2001 stated (supra) and denied the custody of the detainees. Thus, the application was disposed of on the statement of S.H.O. Police Station Sinjhoro. The applicant and his other relatives remained in search of the detainees and when they came to know that the detainees are detained at Police Station Chotiari District Sanghar in. a room of police quarters of police station adjacent to Police Station Chotiari they rushed to this Court and moved the present application. At the request of the applicant, Commissioner was appointed by this Court who visited the alleged place of detention and submitted such report. The report is reproduced herein below in extenso: Criminal Miscellaneous Application No.D-385 of 2001 Javed Ali v. S.H.O. Police Station Chotiaryoon and another Pursuant to Honourable Court's order, dated 27-7-2001 passed in the abovementioned case whereby the undersigned was appointed as Commissioner to visit Police Station Chotiaryoon (District Sanghar) in order to ascertain the factum of the detention of alleged detainees namely Ghulam Rasool son of Muhammad Moosa and Rasool Bux son of Muhammad Hussain, report thereof is respectfully submitted as under:-- That, on 27-7-2001, I, alongwith Muhammad Ayub Jatoi, Junior Translator, Muhammad Achar P.C./Gunman and applicant Javed Ali left for the Police Station Chotiaryoon at 12-30 p.m. and we arrived there at 3-10 p.m. where only one P.C. namely Muhammad Aaqil Rajar (Buckle No. 2272) was found available on sentry duty whom I introduced about myself as well as about my purpose of visit under the Court order. Then I made an entry of my arrival in daily diary (Roznamcha) of the police station being number as

05. On pointation of the applicant, while search of a private owned single room quarter situated in adjacent to the police station both the above said detainees were found there, where one P.C, namely Hamzo Khan son of Dhani Bux Dars (B. No. 1803) was also found present at there, who, in reply to a question, informed me that the above said quarter is being jointly used for residential purpose, by officials of the P.C. Chotiaryoon. On query, both the above said detainees informed me that actually they were arrested by Sinjhoro Police about three months back and after shifting, they were kept at the present place since last two weeks and have not been ever produced before any Court of law. In the meantime, the S.H.O., Inspector Muhammad Yousuf Mughal and W.H.C. Abdul Ghafoor Keerio also arrived at the police station whom also I introduced about myself as well as about my purpose of visit under the Court order. On question as to under what authority of law, both the above said detainees have been kept at the police officials' residential quarter, the S.H.O. replied that neither there is any kind of entry either in the Roznamcha register or in any other 'record of the police station nor both the above named persons are required by them in any case of their police station. He further informed that he has taken over as S.H.O. of this police station since 14-55 hours of 25-7-2001, as per his arrival entry mentioned in the Roznamcha register, being number as 05 dated 25-7-2001, as such, he does not know any more in this regard. However, he further stated that according to W.H.C. Abdul Ghafoor, both the abovesaid detainees are there since 25-7-2001 at about 4-30 p.m. The abovesaid statement duly signed by the S.H.O. and W.H.C. was obtained in black and white, which is annexed herewith for kind perusal. Thereafter, an order for production of both the abovesaid detainees before this Honourable Court on 30-7-2001 at 9-00 a. m. duly acknowledge copy of the same is also enclosed herewith for kind perusal. After completing the assigned job, we left the police station at 3-45 p.m, after making entry of my departure being number as

06. The report is submitted accordingly, Hyderabad 2a-7-2001 (Sd.) (Hidayatullah Soomro), Commissioner/Assistant. Learned Assistant Advocate-General has placed on record statement of Muhammad Yousuf Mughal, Inspector/S.H.O. Police Station Chotiari alongwith copies of F.I.Rs. etc. It is stated in the statement that the present Inspector/S.H.O. Police Station Chotiari had taken over the charge on 25-7-2001 at 3-10 p.m. It is admitted that Commissioner of this Court visited the Police Station Chotiari and secured the detainees from the quarters adjacent to police station. It is further stated that the respondent No. 1 came to know that the detainees were apprehended by Peromal Police Station in Crime No.41 of 2001 under sections 324, 353, 399 and 401, P.P.C. near Tando Mitha Khan. No lock-up is available at Tando Mitha Khan Police Post, therefore, they were kept at Chotiari Police Station as per the letter of the S.H.O. Peromal, dated 27-7-2001. It is further stated that the letter of S.H.O. Police Station was not produced before the Commissioner when he visited the place of their detention and the same was with A.S.-I. Muhammad Salik of Police Station Chotiari, who was not available. The Peromal Police also obtained remand under police custody from the competent Court. The alleged wrongful confinement has been denied. Pursuant to the rule nisi the detainees have been produced in Court by respondent No.

1. We have heard Mr. Basharat Ahmed Jatt, learned counsel appearing on behalf of the applicant and Mr. Rasheed Ahmed Qureshi learned Assistant Advocate-General on behalf of the State. The latter has frankly stated that the averments made by the respondent No. 1 in the statement are not only contrary to the report of the Commissioner but contradictory to the F.I.Rs. and documents annexed with the statement. He concedes to the prayer of the applicant. Perusal of the material placed on record shows that the statement of the respondent No. 1 is contradictory and discrepant one to the report of the Commissioner. He has made a crude attempt to cover the illegal action taken by him and his colleagues. Tando Mitha Khan Police Post comes within the jurisdiction of Police Station Peromal without assigning any reason for keeping the detainees in police lock-up at Peromal they were sent and detained in a quarter near Police Station Chotiari, which is stated to be at the distance of about 20 to 25 kilometres from Police Station Peromal. The report of the Commissioner shows that he visited the police station at 3-10 p.m. The detainees were found in the quarter of the Police Officials of Chotiari which is used by them for residential purpose. The respondent No. 1 i.e. Inspector/S. H. O. Muhammad Yousuf Mughal and W.H.C. Abdul Ghafoor Kerio informed the Commissioner that there is no entry with regard to the arrival and confinement in police lock-up in the station diary or any other police record of the Police Station Chotiari. He further informed him that he had taken-over as S.H.O. on 25-7-2001 at 2-55 p.m. Such entry was available in the station diary bearing No.5. He also informed the Commissioner that W.H.C. Abdul Ghafoor had informed him that the detainees were brought on 25-7-2001 at about 2-30 p.m. The respondent No. 1 delivered such statement in writing to the Commissioner: The same is in vernacular. Contents whereof are reproduced herein below:-- The further perusal of the documents placed on record by the respondent No. 1 shows that the present detainees were initially arrested by the Police of Police Station Sinjhoro in Crime No.29 of 2001 under sections 402 and 393,' P.P.C. on 22-4-2001 at 6-45 p.m. The perusal of the F.I.R. shows that they were in custody of the Sinjhoro Police. They were sent up under a charge-sheet, dated 30-6-2001 before the learned Civil Judge and F.C.M. Sanghar showing the detainees as absconders. No material has been placed on record from which it could be deduced that the detainees escaped or released from the custody of police. The F.I.Rs. bearing Crimes Nos.41 of 2001, 42 of 2001 and 43 of 2001, under sections 324, 353, 399, 401, P.P.C. and 13-D, Arms Ordinance and section 7-B of the Surrender of Illicit Arms Act, 1991 respectively were registered against the detainees on 27-7-2001. It is mentioned in these F.I.Rs. that the detainees were arrested on 27-7-2001. This very fact is contrary and contradictory to the statement of S.H.O. Chotiari as well as the report of the Commissioner reproduced hereinabove. It appears that the copies of the entries of Station Diary of Police Station Chotiari and F.I.Rs., dated 27-7-2001 are managed and manoeuvred one. The remand of the detainees was obtained from the learned Judicial Magistrate and F.C.M., Sanghar on 28-7-2001. At this stage without dilating upon the merits or demerits of the case registered against the detainees at Police Station Sinjhoro we are of the considered view' that this matter requires interference. Ordinarily we do not consider the bail plea of the detainees in each and every case in proceedings under section 491, Cr.P.C. particularly when it is substantiated that the alleged detainee/detainees are involved in a substantive offence, but looking towards the peculiar facts and circumstances of the present case we order that detainees Ghulam Rasool son of Muhammad Moosa and Rasool Bux son of Muhammad Hussain both resident of village Divan Waliram Taluka Sinjhoro are granted bail in the sum of Rs.50,000 each and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court. They be released forthwith upon furnishing the required surety. The copy of this order, be sent to the Home Secretary, Government of Sindh as well as Inspector-General, Sindh for necessary legal action against delinquent Police Officers. The application stands disposed of. N.H.Q./J-31/K Petition accepted.