P L D 1975 Lahore 1435 (PLP)

This is a petition under section 491 of the Code of Criminal Procedure ‑for recovery and release of Mukhtar Ahmad son of Mehr Din caste Rajput, resident of Shorkot City, District Jhang, hereinafter called the detenu. It was averred in toe petition that the aforesaid detenu was being kept without lawful authority by Asghar Ali S. H. O. Police Station Shorkot, District Jhang. The petition came up before me on 14‑5‑1975 when I admitted it to a regular hearing, directed the issuance of a notice and ordered that then petitioner should deposit advance costs of Rs. 100 as a token of the petition, being bonafide which was to be regulated with the result of the petition late on. At the same time, I deputed a Bailiff at the costs of the petitioner to recover the detenu and produce him in Court. The respondent S. H. O. Police Station Shorkot was also directed to appear in person along with the: relevant record.

2. The Bailiff, according to the report submitted by him, reached tae ‑Police Station on 14‑5‑1975 at 11‑45 p.m. He found the detenu in the Police lock‑up. He was identified by the petitioner. Asghar Ali respondent S. H. O. was present with his staff in the Police Station. Muharrir Head Constable Muhammad Shafi told the Bailiff that the alleged detenu was arrested that day by the Police in a theft case F. I. R. No. 58/1975 under section 457/380/54, P. P. C., and was kept in lock‑up on that very day at 4/5‑00 p.m. However, the Bailiff checked up the Roznamcha and it was. conceded before me also that the arrest and detention of the detenu had not been entered in the Police Roznamcha of that date. The detenu has been produced in Court. He has made a statement in which he has deposed that he was arrested on 3‑5‑1975 when few Constables came and took him to the Police Station where he was kept for all this period and that he had not been produced, before any Magistrate so far. He stated that be had a dispute with two persons Bashir and Sabir over some tobacco bargain and deal which was, struck through one Manzoor. The S. H. O., respondent No. 1 was putting pressure on him for the settlement of that dispute and tee pay a sum of Rs 6,000 in that respect. He deposed that it was in that view of the matter that the S. H. O. had arrested him and kept him in the Policy lock‑up during all that period. Faiz Ahmed petitioner, who is nephew of the detenu, also made a similar statement.

3. Respondent Asghar Ali S. H. O. appeared in the witness‑box and made his own statement. He submitted that an F.

1. R. bearing No. 58 of 1975 bad been registered in the Police Station at the instance of one S. Muhammad Hussain Shah Retired Tehsildar for some alleged theft in his house under section 457/380, P. P. C. Though be tried to give am impression that he had investigated that case only for five or six days but when confronted with the file he had to admit that he investigated the cage on 21‑3‑1975 to23‑3‑1975, 7‑4‑1975, 14‑4‑1975, 22‑4‑1975, 23‑1‑1975, 30‑4‑1975 1‑5‑1975, 4‑5‑1975, 8‑5‑1975. 12‑5‑1975 and 13‑5‑1975. He stated that on 30‑‑4‑1975, 1‑5‑1975 and 4‑5‑1975 certain persons whose names are Abdul Karim, Wali Muhammad, Amir and Fazal Hussain had made mention of Mukhtar detenu and stated that he might also be joined in the investigation and ques tioned because it was possible that he may give some clue of the aforesaid theft. He has deposed that consequently some efforts were made by him to arrest the detenu but he was not available. His actual statement in this respect treads as follows :‑ "It is correct to suggest that I had made up my mind to arrest Mukhtar Abmad on 30‑4‑1975 but as he was not available, therefore, I could not apprehend him. I did not search for Mukhtar detenu on 2nd, 3rd May 1975, because I was busy in some other cases. The present police file does not contain any indication that I was busy in some other cases and. therefore, did not make any search for him. I again made a search for the detenu on 4‑5‑1975 but he was not available. No search was made onward from 5th to 13th of May 1975, for arrest ing the detenu." He states that on 13‑5‑1975 he passed on the file to Mr. Gulzar Hussain Additional S. H. O., of that Police Station who on the next day I.e., 14‑5‑1975 arrested the detenu at about 4 or 5 p.m. He concedes, however, that it was he who directed the Additional S. H. O. to arrest the detenu and that the detenu was arrested under his express orders.

4. A pertinent thing which has come on the record is that even though the detenu was allegedly arrested on 14‑5‑1975 at about 4/5 p m., but still the factum of his arrest and detention in the Police lock‑up was not entered in the Police Roznamcha. The S. H. O. stated that this entry was to be made by Muhammad Shafi Muharrir Head Constable who, however, did not do so. It is to be noticed that the S. H. O. conceded that he had not made any report in writing against the aforesaid Muharrir Head Constable to any higher authorities nor he himself took any explanation in writing from the said Muhammad Sufi. In these circumstances it is not possible for me to accept the bald statement of the S. H. O. that the detenu was arrested at 4/5 p.m. on 14‑5‑1975. Another thing to be kept in mind is that on 14‑5‑1975 orders by this Court were passed deputing a Bailiff who reached at a far off place of Shorkot in Jhang District at 11‑45 p .m. He checked up the police records and did not find any entry about the arrest or detention of the detenu anywhere. However, he observed that the detenu was confined in the Police lock‑up. The file had remained with the S. H. O. on the various dates and for long period mentioned above and it is strange that the arrest of the detenu was alleged to have taken place only 5 or 6 hours before the arrival of the Bailiff in the Police Station and the alleged arresting officer was out of the Police Station along with the police file. The petitioner. who had filed this application on 13‑5‑1975. and who according to his statement had reached Lahore on the 10th May 1975, could not know that when o 14.5‑1975, he would be reaching the Police Station few hours before hi arrival there the police would have arrested the detenu. Another thing to noticed is that the S. H. O. deposed that the aforesaid persons. namely Abdul Karim, Wali Muhammad, Amir and Fazal Hussain had deposed before the Police that Mukhtar detenu may be joined in the investigation and he may be put questions and it was possible that some clue of theft might be available from him. The S. H. O. respondent is positive that those persons did not mention that they had seen any case property in his possession; they had never seen him committing the theft and nor they bad said that the had seen him disposing of the stolen property of the case at any place. In these circumstances as to why the detenu was arrested is really a mystery, an a doubtful affair. This aspect of the case was put to the S. H. O. and hi answers are as follows :‑‑ "Court Question.‑All that the aforesaid four persons said was that Mukhtar detenu was of a bad character and he may be questioned to throw light on this case. They never said that he was a thief. They never said that they had seen any case property in his possession. They never said that they had seen him committing the theft and nor they had said they had seen him disposing of the stolen property of the case pertaining to F.

1. R No.

58. Is it so? A.‑Yes my Lord. It is quite so. Q.‑What was then the occasion for the arrest of the detenu. A.‑It is correct that there was no positive evidence against him. I directed the arrest just in order to join him in the investigation of interrogation and not as an accused." Learned counsel for the S. H. O. tried to rely upon section 54 of the Criminal , Procedure Code, which reads as follows :‑ "Arrest without warrant

54. When Police may arrest without warrant.‑(1) Any police‑officer may, without an order from a Magistrate and without a warrant, arrest‑ first.‑any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; secondly.‑any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house‑breaking; thirdly.‑any person who has been proclaimed as an offender either under this Code or by order of the Provincial Government; fosurthly.‑any person in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; fifthly.‑any person who obstructs a Police Officer while in execution of his duty, or who has escaped, or attempts to escape, from lawful custody; sixthly.‑any person reasonably suspected of being a deserter from armed forces of Pakistan or from any unit of forces of an Acceding State declared under the Extradition Act, 1903, to be a unit desertion from which is an extradition offence; seventhly.‑any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of Pakistan which, if committed in Pakistan, would have been punishable as an offence, and for which he is, under any law relating to extradition or under the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended or detained in custody in Pakistan; eighthly,‑any released convict committing a breach of any rule made under section 565, subsection (3); ninthly.‑any person for whose arrest a requisition has been received from another Police Officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition." Learned counsel submitted that as in this case a reasonable suspicion existed, therefore. it fell within the last portion of first part of that section which authorised a Police Officer to arrest any person against whom a reasonable suspicion exists of his having been concerned with or in a crime. Since the case is under investigation, I would not like to say anything on this aspect of the matter which may create prejudice in favour of either party and will conclude the matter by simply narrating the context in which the . arrest of the detenu wag brought about. However, I am of the opinion that the arrest which was shown to have been made on 14‑5‑1975 is not supported from the daily diary of the Police Station concerned and, therefore. I am no prepared to place any tacit reliance on the plea of the S. H. O. as against the positive statements of the petitioner and the detenu that detenu was arrested on 3‑5‑1975 which quite fits in with the dates during which the present S. H. O. was himself having charge of the investigation and was, according to his own statement, keen to arrest the detenu. It is a common ground that the detenu has not been produced before any Magistrate so far which is clearly in violation of the Constitution and the other laws on the subject and as such his detention is clearly without lawful authority. The S. H. O. deposed that he was not living in the Police Station but was living in a house in the City, but strangely enough the exact location of that house he was not in a position to give. His statement in this respect is as follows :‑ "Q.‑Can you please state the exact location of the house, by mentioning the Mohallah or the locality or side of the Town? A.‑I cannot give the exact location." He further admitted that he was living in that house in an unauthorised manner without the authority of any competent person. Either this statement is not correct and possibly the S. H. O. lives in the Police Station as was suggested to him by the counsel for the petitioner and which suggestion he denied or in the alternative he is such a person who has unauthorized occupied a house without any justification and is thus a type who can transgress law on the subject. Be that as it may, this has also put me on the alert that the statement of the S. H. O. should not be taken at its face value and I shall have to be cautious in accepting the bare words of the S H. O. He lives at a distance of one furlong or so from the Police Station but on the day of event, namely, 14‑5‑1975 (he has stated) he made a report of his hav ing left the Police Station somewhere earlier at 10 a.m., but strangely enough there is no report of iris coming back to the Police Station. He also deposed that when the Bailiff of this Court reached the Police Station, a Constable went to inform him at the place where he allegedly was residing. He conceded that there was no entry in the Police Station Roznamcha of any, Constable having gone to his house to give. him this information. Similarly, when be himself carne to the Police Station, in the presence of the Bailiff of this Court. he did not record his presence in the Roznamcha. On the other hand, the report of the Bailiff is that when he reached the Police Station he found that the S. H. O. was present with his staff there which apparently seems to be correct in view of the various aspects highlighted above and the plea of the S. H. O., that he came afterwards from his house is not true. All these factors and circumstances, as I have already indicated above, have led me the conclusion that all is not well in the Police Station' and the records are not being properly maintained with the result that whatever has been written in the Police File cannot be accepted at its face value especially when in the daily ziminis there was no indication as to when the same were despatched to the Inspector. On the other hand, the version given by the petitioner and the detenu regarding date of his arrest and confinement finds support from the overall facts and circumstances as hereinbefore highlighted.

5. The upshot of the above discussion is that accepting the present petition I declare the custody of the detenu with the police as to be without lawful authority and of no legal consequence against him. He is set a liberty. The respondent S. H. O. is burdened with costs of Rs. 200 two hundred only) which he should pay to the petitioner. (The costs have been paid to the petitioner by the respondent in Court). The security deposited by the petitioner will be refunded to him. S A. H Petition accepted.