1970 P Cr (PLP)

5. From the above narration of facts it is clear that the learned District Magistrate made no endeavours to ascertain the real facts in controversy either from Mst. Anwar Bibi or subsequently from her father Bahadur Khan who had apprised him, in detail, of the true position but illegally and unlawfully insisted on her forced detention till the 22nd of September 1969.

6. When Bahadur Khan failed in his attempt to get Mst. Anwar Bibi released from the Court of District Magistrate, her husband Mukhtar Hussain moved the present application for habeas corpus on the 16th of September 1969, a copy of which was given to the Advocate-General on the same day. Notice was issued to the District Magistrate on the 18th of September 1969 and a bailiff of this Court was deputed to recover Mst. Anwar Bibi from the custody of Superintendent District Jail, Jhang. On the 22nd of September 1969, the girl was produced before me and it was noticed that she was in an advanced sage of pregnancy and it was difficult for her to stand properly in Court while making her statement.

7. In his letter No. 2219-P dated the 19th of September 1969 addressed by the District Magistrate to the Advocate-General, which has been placed on the record in original, he has explained the detention of Mst. Anwar Bibi in judicial lock-up as follows: - "The woman was sent in the judicial lock-up for the reason that she was not able to give her statement freely and that her minor child was also not brought. I was of the view that if Mst. Anwar Bibi gave her statement against the wishes of Mukhtar Ahmad, the petitioner, the life of the child would be in danger. Keeping all these circumstances into consideration I prefer to send the woman in Jail, till the child is recovered and handed over to her mother Mst. Anwar Bibi, the natural guardian, so that she may be able to give her statement voluntarily."

8. The above explanation is not reliable and cannot be accepted as correct against the official record of the District Magistrate. There is nothing on the file to show that any effort was made by the District Magistrate to record the statement of Mst. Anwar Bibi after her recovery. Neither the learned District Magistrate gave any reasons in black and white about her detention in jail. In the absence of these two things it is difficult to accept the explanation of the District Magistrate that Anwar Bibi was not in a position to make a voluntary statement against the wishes of Mukhtar Hussain. On the other hand, I find that this explanation stands duly contradicted by the record maintained by the District Magistrate himself. There is not a word to suggest that any question about the detention of minor child Arshad Hussain was raised before the District Magistrate either by the complainant or by the detenu It was for the first time on the 13th of September 1969 when Mst. Fateh Bibi moved another application to the District Magistrate stating that there was a child of four years of age of Mst. Anwar Bibi who was under the illegal custody of the respondent and the accused had kept it in ransom, and they had threatened Mst. Anwar Bibi not to make a statement against them otherwise the life of the child will be in danger. From this it is clear that the question of the detention of the minor was brought to the notice of the District Magistrate for the first time on the 13th of September 1969, i.e. one day after the illegal order of detention. To say that there was some justification for the District Magistrate for committing the girl to judicial lock-up on the 12th of September 1969 is nothing but an afterthought to justify her illegal detention.

9. There is nothing in the application of Mst. Fateh Bibi dated the 26th of August 1969 about the illegal detention of the minor child nor there is arty hint in her statement on oath of that date to this effect and at the same time the record of the proceedings of the District Magistrate of the 12th of September 1969 is also silent on the subject. For these reasons I ain of the view that the defence offered by the District Magistrate in his letter to the Advocate-General is not based on facts.

10. If the District Magistrate was really acting in good faith as pleaded by the learned Advocate-General for the welfare of Mst. Anwar Bibi and her minor child, he should have recorded her statement immediately on the date when she was produced before him or at any rate, he must have done so on the 12th of September 19'9 when her father made an application accompanies by an affidavit, giving full facts about the mala fide of the complainant and lawful marriage of his daughter with Mukhtar Hussain.

11. Mst. Anwar Bibi today, has made a statement on oath before me that she apprised the District Magistrate that she was living with her husband freely-and happily but the learned District Magistrate did not record her statement. I have no reasons to doubt the correctness of her statement. It is, therefore, clear that the learned District Magistrate did not care to apply his mind to the facts of the case properly nor he was able to comprehend the limits of his jurisdiction under section 552, Cr. P. C. and the procedure adopted by him was opposed to all known judicial canons.

12. The learned Advocate-General attempted to argue that the District Magistrate ordered the detention of Mst. Anwar Bibi in judicial lock-up in much the same way as this Court passes an order for the interim custody of a detenu in habeas corpus proceedings. The argument has been advanced in ignorance of the Habeas Corpus Rules, made by this Court under section 491(2) of the Criminal Procedure Code, 1898. Under Rules 3 and 9, Chapter IV-F, Volume V, when Rule nisi in habeas corpus proceed ings is issued the custody of the prisoner detenu stands under the control and direction of the Court. This power enables the High Court to make suitable order for the custody or the prisoner detenu pending the hearing. There is thus no parallel between the provisions of rules 3 and 9 of the Habeas Corpus Rules, made by the High Court and the powers of the District Magistrate under section 552, Cr. P. C. It will be useful to reproduce the relevant provisions of the law in this context. Rule 3 of the Habeas Corpus Rules reads as under:- "If the application of an order clause (a) or (b) of sub section (1) of the section alleges that a person is confined under such circumstances that the confinement amounts to an offence, the Court may, at the time of issuing a Rule nisi, also issue a search warrant, and the person to whom the warrant is directed may search for the person son confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately brought before the Court which shall make such order as in the circumstances of the case may seem to be proper." Rule 9: "Upon the return and the production of the party on whose behalf the rule was issued, the custody of the prisoner shall be under the control and direction of the Court until the disposal of the rule. Pending the hearing, the Court may admit the prisoner to bail or remand him to the prison where he is in custody." 552 Cr. P. C.: "Upon complaint made to a Presidency District Magistrate on oath of the abduction or unlawful detention of a woman or of a female child under the age of sixteen years, for any unlawful purpose, he may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary." The rules made by the High Court have got statutory force and the High Court has thus fall power to make suitable arrangement for the interim custody of a person brought before it pending the decision of the rule. No such power is, however, available with the District Magistrate to detain a person in the judicial lock-up. Under section 552, Cr. P. C. the District Magistrate is required to immediately restore the woman to her liberty, or, such female minor child to the custody of her lawful guardian. The analogy drawn by the learned Advocate-General on the strength of the practice of this Court was, therefore totally misconceived.

13. The Legislature, in its wisdom, has given power under section 552, Cr. P. C. only to the District Magistrate with the object that this summary power is used by him as head of the l administration in the District in proper cases and with a circumspection to secure the liberty and freedom of the woman and female children when illegally or unlawfully detained within D his jurisdiction. Even the subordinate magistracy has not been entrusted with these powers lest it is misused. The District Magistrate therefore is required by law to exercise his power with proper care and attention. He cannot use this authority to commit a recovered woman or female child to judicial lock-up in order to procure a better statement. In the present case I feel that the learned District Magistrate has abused this power in more than one way. In the first place he refused to record the statement of Mst. Anwar Bibi when she was produced before him and. in the second place, instead of setting her at liberty immediately, he unlawfully committed her to the prison.

14. Mst. Anwar Bibi in her statement, made in Court today has stated that the minor child Arshad Hussain, aged four years has also been summoned by the District Magistrate through a search warrant issued by him in this behalf. This contention finds support from the record of the Court of the District Magistrate in which a warrant has been issued to the Superintendent of Police, Jhang, for the recovery of minor child. I have no hesitation to hold that this warrant has also been issued illegally as under section 552, Cr. P. C., only a female child under the age of 1 years is to be recovered by the District Magistrate, and produced in his Court for restoration to the lawful custody of the guardian. Arshad Hussain is neither a female child nor he has been detained by any person in an unauthorised and illegal manner as he was living with his father after his mother was detained by the District Magistrate in the judicial lock-up. His father being the natural and lawful guardian the issue of search warrant was, therefore, void and uncalled for.

15. Arshad Hussain minor has been produced before me in Court by Mukhtar Hussain and Mst. Anwar Bibi has expressed a desire that she wanted to take him along with her and live with her husband. In view of the fact that Mst. Anwar Bibi is lawfully wedded wife of Mukhtar Hussain and was living with her husband happily till she was recovered by the unlawful order of District Magistrate and detained in judicial lock-up illegally and since she has expressed her desire to live with her husband, she is set at liberty. Mst. Anwar Bibi is also allowed to take her child Arshad Hussain. The warrants issued for detention of Mst. Anwar Bibi in judicial lock-up by the District Magistrate and also the warrant issued to the Superintendent of Police, Jhang, for the production of her minor son Arshad Hussain are hereby cancelled. The rule is discharged.

16. It will not be out of place to mention here that respondent No.2 has also been grossly negligent in the performance of his duty as required by Punjab Jail Manual Rules made for the admission of prisoners. The, Superintendent of Jail is not supposed to act as a silent spectator for admission of a person in jail as and when a warrant

whether legal or illegal, is brought to him. Under Chapter III Para. 28 of the Manual a duty is cast upon the Superintendent to return the warrant for correction to the officer who issued it, if by any error or omission the warrant is defective in form or otherwise irregular. Under rule 29, if the Superintendent doubts the legality of any warrant or order sent to him for execution, or the competency of the person whose official seal and signature are affixed thereto, to pass the sentence and issue such warrant or order, for detention it is his duty to refer the matter to the District Magistrate and if necessary to the Government for orders.

17. From these provisions it is clear that the Superintended of Jail will not admit every person to the prison for whom a supposed warrant is issued. He in law is duty-bound to check its legality and correctness. As already discussed, section 552 of the Criminal Procedure Code does not authorise a District Magistrate to commit a person to jail pending the extraction of a truthful statement, therefore, when the warrant under this section was issued by the Court to the Superintendent Jail, Jhang, it was his duty to check its legality and to return it to the District Magistrate or to the Government for necessary orders. In the absence of a bona fide effort on the part of the Superintendent Jail to check and verify the legality and correctness of the warrants I am afraid that he cannot be exonerated of his liability of wrongfully confining a prisoner on an illegal warrant.

18. Since this blatant use of the power by the District Magistrate has resulted in unnecessary torture and disgrace to a married woman and her detention in the judicial lock-up has been conceded to by the Advocate-General to be illegal and unwarranted by any provision of the law I deem it expedient in the interest of justice that the District Magistrate should be made to pay Rs. 500 personally to the petitioner as cost of the rule. This order is passed by me in exercise of my power under rule 10 of the Habeas Corpus Rules made by the High Court.

19. Issue notice to the District Magistrate, Jhang, to show cause as to why the case for the withdrawal of his judicial power should not be referred to the Provincial Government.

20. The original file of the District Magistrate and the communication addressed by the District Magistrate to the Advocate-General, which has been placed on the record, may be retained in this Court in sealed cover by the Deputy Registrar. Order accordingly.