1989 P Cr (PLP)

Respondents in person. Date of hearing: 2nd July, 1989. The facts leading to this Constitutional petition for direction to register the case, as stated by the learned counsel for the petitioner, briefly, arc that on 24‑1‑1989 Muhammad Yasin son of Mst. Amiran petitioner was arrested in case under section 411, P.P.C. (F.I.R. No. 35/89) Police Station City, Bahawalnagar. He escaped from police custody on 28‑1‑1989 and a case under section 223/224, P.P.C. was registered at Police Station City, Bahawalnagar, on the same day. Thereafter on 7‑2‑1989 Muhammad Ramzan Bhatti, Inspector Police, Muhammad Salim Gujjar, A.S.I., Malik Mahboob Ahmad, H.C. and Muhammad Tufail Constable, of Police Station City, Bahawalnagar, reached the house of the petitioner in search of Muhammad Yasin, the son of the petitioner. Since Muhammad Yasin could not be found, therefore, they took the petitioner and her daughter Mst. Zubaidah aged 11/12 years to the police station and kept them for about 8/9 days at different places and allegedly committed Zina‑bil‑Jabar with the petitioner and with her minor daughter as well. On 12‑2‑1989 police registered case under sections. 16 and 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, at Police Station City Bahawalnagar against Muhammad Yasin, Mst. Ameeran petitioner and Mst. Zubaidah aged 11/12 years, for the alleged abduction of Mst. Zafran. The police formally arrested the petitioner and her minor daughter Mst. Zubaidah on 15‑2‑1989 although they were already with them since 7‑2‑1989. On 16‑2‑1989, the petitioner and Mst. Zubaidah were sent to District Jail, Bahawalnagar. Mst. Zubaidah narrated to the Jail authorities that after having taken her in their custody on 7‑2‑1989, the respondent/Police officials committed rape upon her. Mst. Ameeran petitioner made similar complaint. On this Superintendent District Jail, Bahawalnagar apprised District Magistrate, Bahawalnagar of the situation. On 18‑2‑1989, the M.S. D.H.Q. Hospital, Bahawalnagar deputed W.M.O. to examine the female prisoners. On the same day, the Lady Doctor wrote that `as I have already visited jail, the two female prisoners require medical examination. So they should be sent to the hospital for examination of rape. Zubaida and Ameeran were medically examined on 22‑2‑1989. The hymen of Zubaida Parveen was found torn and the vagina admitted two fingers easily. Vaginal swabs of the ladies were taken and sent to the Chemical Examiner. The report of the Chemical Examiner shows that the swabs were not stained with semen. On 18‑2‑1989 Mst. Zubaida had sent an application to the District Magistrate, Bahawalnagar, for action against the Police officials on the charge of Zina‑bil‑Jabar. Mst. Ameeran had also sent an B application to the District Magistrate, through Superintendent, District Jail for action against the Police officials. Written application was also presented before Superintendent of Police, Bahawalnagar for action against the police but all in vain. On the other hand, the respondents who are present in the Court have refuted the allegations. Their plea is that false allegations of rape have been levelled because they had arrested the two ladies in the case F.I.R. No. 45/89 under section 16/10 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 for the abduction of Mst. Zafran by Yasin, son of the petitioner. They have relied on the negative reports of the Chemical Examiner. They have further stated that the D.S.P. was deputed by the S.P. to probe into the allegations of the petitioner and the D.S.P. found the allegations to be false.

2. I have considered the matter carefully. Since, the two ladies were examined long after the alleged commission of rape upon them, therefore, negative reports by the Chemical Examiner are quite understandable. Mst. Zubaidah and Mst. Amiran have consistently and continuously been charging the police officials with abduction and rape, allegedly committed before the registration of case F.I.R. No.45/89. The allegations were narrated by them to the jail authorities immediately after their deposit in the jail. The two ladies have vigorously been pursuing the charges against the police officials before the police hierarchy and other authorities. Be that as it may, the fact remains that the allegations levelled by the two ladies against the police officials are cognizable and the Superintendent of Police, Bahawalnagar was/is obliged to register case on their report. Superintendent of Police, Bahawalnagar is S.H.O. of all the police stations in District Bahawalnagar by virtue of section 551, Cr.P.C. Therefore, in the peculiar circumstances of the case, I direct him to register two separate cases under sections 10 and 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, one on the written report marked `A' of Mst. Zubaidah and the other on the written or oral report which may be made to him by Mst. Amiran. He may either investigate the case himself or may depute responsible Police Officer to do so. He will get the investigation completed within 15 days under limitation to the Additional Registrar of this Bench.

3. In the course of the hearing of this petition, I have painfully noted that the Police Rules relating to the arrest and detention of women/accused in the police lock‑up, especially during night, have not been followed. In this case the relevant rule may be reproduced advantageously:‑‑ (1) All arrests of women‑whether without warrant or with a warrant bailable or non‑bailable‑‑shall be carried out by police officers not below the rank of Assistant Sub‑Inspector of Police or, when no such officer can be made available, by a head constable in presence of responsible male relatives and village or town officials. Such arrests shall be specially reported in the manner prescribed in Police Rule 24.12 and, when the arrest has been made by an officer of rank lower than Assistant Sub Inspector, the reason shall be clearly explained. Superintendents of Police shall forward special reports as required by Police Rule 24.12, and a copy shall be sent to the Deputy Inspector‑General of Police, Criminal Investigation Department Punjab in those cases only in which the woman is not sent to judicial custody or released on bail immediately. Where bail is admissible the woman should not be detained longer than is necessary for the production of the bond or sureties. No applications for remand to police custody shall be made without the special order of Gazetted officer. (2) No women in police custody. shall be lodged even for a night in a police station except in unavoidable circumstances. They shall be placed at once before a Magistrate for remand to judicial custody, except where a remand to police custody is necessary and has been obtained in accordance with (I) above. Women remanded to judicial custody shall be immediately transferred to headquarters or properly equipped sub -divisional female judicial lock‑ups. All remands to judicial custody shall be reported immediately to the District Magistrate. The Gazetted officer supporting an application for remand to police custody shall be responsible for the taking of necessary measures for the safe and decent custody of the prisoner. Where women in police custody have to be escorted about * for the purpose of investigation, the officer in charge of the police party shall not be below the rank of Assistant Sub‑Inspector; provided that when no Assistant Sub‑Inspector is posted to the police station concerned, a head constable may be placed in charge of the escort. (3) Women attending police investigations and enquiries as distinct from those under arrest‑‑shall on no account be detained in police stations or with the police any longer than is necessary for the record of the information which they are willing to give. In no case shall they remain with the police between sunset and sunrise. If it is necessary to take a woman witness about the countryside for identification, etc., she shall be accompanied by a responsible male relative or her Zaildar, Sufedposh, Lambardar, Mohalladar or other respectable male neighbour, Gazetted Officers hearing and passing orders, on such case shall take such steps as are necessary to ensure that the above orders are scrupulously observed." On my inquiry Muhammad Ramzan Bhatti, Inspector, stated that Mst. Amiran and Mst. Zubaidah were arrested in a day time, were kept in the police lock‑up for a night and were produced before the Magistrate for judicial remand on the next date and no special report about their arrest was sent to D.I.‑G. Police. It is really sad that the aforesaid provisions of Police Rules for safe and decent custody of female prisoners have not been complied with in the instant case. To ensure observance of the rule cited above, it is necessary that police authorities shall take steps as are necessary to ensure that the provisions reproduced above are strictly observed and women prisoners are not lodged in the police station even for a night except in unavoidable circumstances. If there is no option but to keep a woman prisoner in police lock‑up, then suitable arrangements for the presence of their male relatives near female lock‑up between sunset and sunrise shall be made; that the women required for police investigation or other inquiries in no case shall remain with the police between sunset and sunrise; that while attending the police station or police investigation, the women shall be allowed to be accompanied by responsible male relative or other respectable person and that the women shall not unnecessarily be summoned or detained in police stations and when summoned, necessary measures to protect their self‑respect and modesty should be taken. M.A.K./A‑698/1, Petition accepted,