2006 PLP 320 (MLD)

MUHAMMAD MUJEEBULLAH SIDDIQUI, J.

Through this Habeas Corpus Petition, petitioner, Muhammad Aftab Siddiqui, has alleged the unlawful detention of his son Muhammad Asif Siddiqui. On 22-11-2005 rule nisi was issued to S.H.O. Shah Faisal Colony Police Station with the direction to produce the detenu in Court on 23-11-2005. On 23-11-2005 the detenu could not be produced and Mr. Sultan Ali Khawaja, TPO, held out a solemn assurance that he would make all efforts to locate the whereabouts of the detenu Muhammad Asif and produce him in Court on 24-11-2005. Mr. Habib Ahmed, learned Assistant Advocate-General has stated that detenu Muhammad Asif has been arrested by SIP Saeedullah Khan of Police Station, Korangi Industrial Area, Landhi Town, Karachi on 23-11-2005 at 0230 hours in F.I.R.No.213 of 2005 under section 392/34, P.P.C. It is submitted that today the alleged detenu was produced before the Civil Judge/Judicial Magistrate IX, Karachi East and physical police custody was obtained till 28-11-2005. Mr. Habib Ahmed has stated that identification test of the detenu is to be held. However, he has conceded that in the ,F.I.R. the necessary description of the person, who allegedly committed the robbery is not given. He has, further, stated that a sketch of the culprits has been prepared by the officials of CPLC. The learned Assistant Advocate-General is not able to explain as to how the sketch has been prepared when description of the culprits has not been given in the F.I.R. and in the absence of such description and details what would be the worth of identification test through Magistrate. By now, the law relating to the identification test is settled that merely picking a person in the identification test by witnesses is not sufficient until and unless it is explained as to how and in what circumstances a person has been identified by them. The reason being that it is very convenient for the Investigating Officer to intimate the witnesses of identification that person/persons of such and such description is/are to be picked up from the dummies in presence of Magistrate. We have considered the issue whether after laying of the information that a detenu is involved in a criminal case, this Court should take off its hand, or should examine the facts further for the? purpose of administering the justice. It has been held by the Hon'ble Supreme Court in the case of Government of Sindh v. Raessa Farooq (1994 SCMR 1283), "that it is now settled principle of law that where petition under Article 199 is filed challenging the arrest and detention of any person, .the High Court will not straightaway refuse to exercise jurisdiction the moment an information is laid that the detenu is involved in any criminal case registered with the police. The High Court has the jurisdiction to examine the facts and information laid before it to determine prima facie that it does not lack bona fides, is not a cooked up or manipulated affairs, the detenu has not been illegally detained without a proper and legal remand order where it is required and there appears reasonable grounds for believing that the detenu is involved in the crime charged with. If once it is conceded that on receipt of information as supplied the High Court should refuse to exercise its constitutional jurisdiction without examining it, the very provisions of the Constitution, Article 199 (1)(b)(i)) conferring power of judicial review will be frustrated. The High Court is competent to examine and satisfy itself that the detenu is not being held in custody without lawful authority or in an unlawful manner. This can be achieved only when the Court examines the information, reason, facts and causes leading to detention. We have examined the facts of this case in the light of the law laid down by the Hon'ble Supreme Court. We would like to observe that it is very easy for Police Officials to involve any person in a blind F.I.R. and we have come across a large number of cases where after filing of writ petition before this Court and issuance of rule nisi the detenus have been involved in some crime reported through a blind F.I.R. and after few days they are released under section 169, Cr.P.C. The instances of such colourable and mala fide exercise of power and misuse of authority are not wanting. In the present case after the filing of the petition and issuance of rule nisi, the detenu Muhammad Asif Siddiqui has been arrested in a blind F.I.R. and the learned A.A.-G. has no option but to concede that at present he has not been provided with any evidence/material showing involvement of the detenu in Crime No.213 of 2005 of Police Station Korangi Industrial Area. In the above circumstances, we are of the view that the detenu Muhammad Asif Siddiqui has been arrested in order to cover up his illegal detention and consequently the petition is allowed and the detenu who is present in Court is directed to be released forthwith. The Police Officials are directed to remove the hand-cuffs and the detenu is set at liberty. However, if any notice is received from any Magistrate for the purpose of identification test, the detenu shall appear before Magistrate for the said purpose. H.B.T./M-30/K??????????????????????????????????????????????????????????????????????????????????? Petition allowed.