2013 P Cr (PLP)

ALI BAQAR NAJAFI, J.

Through this petition under section 491, Cr.P.C., the petitioner seeks recovery and production of the detenu namely Tariq Mahmood son of Abdul Rashid aged 33 years from the illegal, improper custody and confinement of respondent SHO.

2. Brief facts giving rise to the filing of this petition are that the petitioner is the real brother of the detenu. On 2-6-2013 at 8-00 a.m., the detenu was going to Bazar from his native village for encashment of Saudi Rayal, he was stopped by Shamas-ud-Din alias Qadeer, Chiragh, Aslam and Ashraf etc., who made murderous assault on him, whereby he was seriously injured and was sent to Rural Health Centre, Sangla Hill, where he was medically examined vide MLC No.201/13 dated 2-6-2013 at 11-00 a.m. An application to this respect was moved for registration of F.I.R. but on the contrary, he was detained in the police station ever-since without any justification and cogent reason. Meanwhile, the petitioner, his mother namely Irshad Bibi, Shahid Pervaiz and Shahnawaz have been visiting the police station but they were not allowed to see the detenu, hence this habeas petition.

3. On 10-6-2013, a Bailiff of this Court was deputed to recover Tariq Mahmood, detenu, from the illegal confinement of the respondent SHO. Today he was produced handcuffed and the Bailiff of this Court has submitted his report.

4. According to the said report, the Bailiff visited the Police Station, Sangla Hill, Nankana Sahib on 10-6-2013 at 7-30 p.m. He took the daily diary in his possession and made a search and found him in the lock up of the police station. The detenu told him that he was arrested by one Jehangir S.I about 8-10 days ago and was not produced before any court till 10-6-2013. He also told him that his head injury was caused during a fight with the private persons. The Moharrar of the Police Station namely Ismail told the Bailiff that Tariq Mahmood detenu was arrested by Chowki Incharge Jehangir S.I on 10-6-2013 as he was required in case F.I.R. No.237/13 dated 2-6-2013 under section 324, P.P.C. Neither the SHO nor the said Jehangir, S.I/Chowki Incharge was present in the police station. Upon checking daily diary, the Bailiff could not find the entry of the arrest of the detenu in the said case. He also noted that in the said F.I.R., one Tahir was nominated. The file of the said case was also not available in the police station and was statedly in the custody of said Jehangir S.I, who had gone out for raid.

5. As the arrest of the detenu was not mentioned in the daily diary, therefore, the Bailiff took the custody of the detenu and moved back to the Lahore and lodged him in the Police Station, Anarkali, Lahore for safe custody.

6. The detenu has been produced in the Court by the Bailiff today in handcuff. However, SHO is not present, but he is represented by his learned counsel, namely, Mr. Muhammad Imran Chohan, Advocate.

7. The learned counsel for the petitioner seriously objects hiring the services of a private counsel by Jehangir S.I and non-appearance of the SHO. He has placed on record copy of the MLC dated 2-6-2013, wherein the detenu Tariq Mahmood was shown to have been medically examined by Doctor who was brought by Munawar Hussain Constable, vide Ruptt No.6 dated 2-6-2013 at 10-59 a.m. that the F.I.R. No.237/13 dated 2-6-2013 does not reflect the name of the petitioner but that of one Muhammad Tahir; that Mst. Irshad Bibi made an application to the SHO for the release of the detenu, which application is still pending with him; that the alleged arrest of the detenu was shown at 10-30 a.m. on 10-6-2013, which means that the habeas petition was filed in the morning, he was in the unlawful custody of the respondent SHO. Places reliance on "ARSHAD AZIZ v. S.H.O." (2009 YLR 1055), where in such like situation, the habeas petition was converted into bail petition and the detenu was allowed post-arrest bail.

8. Conversely, the counsel for the SHO submits that the petitioner was arrested in the F.I.R. in which he is nominated but was mentioned as Muhammad Tahir instead of Tariq Mahmood. The instant petition is just to pressurize the police and is an effort to malign the police against performance of their lawful duties.

9. The learned DPG on the other hand, submits that non-appearance of the SHO and detention of Tariq Mahmood, detenu requires penal action under section 345, P.P.C. read with Article 155 C of Police Order, 2002.

10. I have heard learned counsel for the parties and perused the available record.

11. The report of Bailiff of this Court and MLC dated 2-6-2011 reveal that the detenu was brought to the Rural Health Centre, Sangla Hill, Nankana Sahib by Munawar Constable. Even in F.I.R. No.237 dated 2-6-2013 under section 394, P.P.C., registered at Police Station, Saddar Sangla Hill, Nankana Sahib, the name of the accused was mentioned as Muhammad Tahir. Today neither complainant of the said F.I.R. nor the SHO is present to account for the veracity of the said F.I.R. Prima facie, non-production of the record before the Bailiff was not only disobedience of the order by this court but also an effort to show the arrest of detenu by the concerned police official. Admittedly, the detenu was not produced before any court of law.

12. In this view of the matter, the detenu namely Tariq Mahmood is set at liberty as his detention is hereby declared as illegal and unlawful. Since his arrest is illegally shown now, therefore, the detenu Tariq Mahmood is granted protective pre-arrest bail subject to his furnishing bail bonds in the sum of Rs.one lac with two sureties each in the like amount to the satisfaction of trial Court till 17-6-2013 enabling him to approach the Court of competent jurisdiction.

13. Before parting with this order, it is appropriate that DPO, Nankana Sahib be directed to record the statement of Mst. Irshad Bibi, who shall look into the matter and proceed against the SHO and Jehangir S.I. in accordance with law. A report in this behalf shall also be submitted to this Court within a fortnight from today.

14. In view of the above, this petition stands disposed of. MWA/S-63/L Order accordingly.