1992 P Cr (PLP)

Date of hearing: 7th December, 1991. The petitioner filed this habeas corpus petition for the recovery of Mushtaq alias Makha, Munshi son of Said Ali and Mukhtar Ahmad alias Kalu son of Jan Muhammad, the alleged detenus from the illegal custody of respondent No.1. S.H.O. Police Station Chak Jhumra and Mr. Asma Ullah Khan Niazi A.S.I. of the same police station.

2. Vide my order-dated 25‑11‑1991, a bailiff of this ours was depute o recover the alleged detenus from the illegal custody of the respondents. The bailiff raided the said police station and recovered the detenus referred above from the police lock‑up who were not shown under arrest vide his report Exh.P.A. dated 26‑11‑1991. The statement of Asghar Ali S.I./S.H.O. Police Station Chak Jhumra was recorded on 26‑11‑1991 and he deposed that the above‑named detenus are accused persons in F.I.R. No.358, dated 18‑9‑1991, under sections 10 and 16 of Offences of Zina (Enforcement of Hudood) Ordinance (VII of 1979) read with section 109, P.P.C., registered at Police Station Chak Jhumra and the investigation of this case is with Asmat Ullah Khan Niazi, A.S.I. Asmat Ullah Khan Niazi, A.S.I. had admitted in his statement that he arrested the detenus just before the arrival of the bailiff but could not show their formal arrest in the daily diary. He denied all the allegations levelled by the detenus. Munshi son of Said Ali detenu deposed that he was arrested on 22‑11‑1991 at 5‑00 a.m. from his house and since then he remained in the police lock‑up without being produced before any Magistrate, similar is the statement of Mushtaq alias Makha son of Muhammad Munshi detenu.

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

4. The learned counsel for the petitioner has submitted that as the alleged detenus were recovered from the police lock‑up and their corresponding arrest was not shown in the daily diary by Asmat Ullah Khan Niazi, A.S.I. hence he has committed an offence under section 343, P.P.C. and a case should be registered against him‑and the petitioner be given cost of this petition.

5. The learned counsel appearing for respondent No.2 (Asmat Ullah Khan Niazi, A.S.I.) has submitted that the alleged detenus are named as accused persons in the F.I.R. referred above but due to slackness and the scarcity of time, their arrest could not be shown in the daily diary and respondent No.2 has not committed any offence.

6. The learned counsel for the complainant has supported the contention of the learned counsel for respondent No.2 referred above and submitted that the detenus are accused in the case lodged by his client and they have not come to this Court with clean hands.

7. I have considered the respective submissions of the learned counsel for the parties and I find from the report of the bailiff coupled with the evidence produced before me, the offence under section 343, P.P.C. is made out. The S.H.O. Chak Jhumra respondent No.1, is directed to register a case on the application of the petitioner or anyone of the detenus. If the case is registered then S.S.P., Faisalabad is directed to place Asmat Ullah Khan Niazi A.S.I. of the said police station under suspension, pending the investigation of the case against him. The investigation of the case should he entrusted w some D.S.P. This. petition is accepted with costs. The detenus were admitted‑to bail vide my order, dated 2611‑1991. Asmat Ullah Khan Niazi, A.S.I. respondent No.2 is directed to pay 8,.2,000 as cost to the petitioner within ten days, failing which this amount would be recovered from respondent No.2, Police Officer, as arrears of land revenue. A copy of this order be sent to S.S.P. Faisalabad for compliance and necessary action. N.H.Q./F‑21/L Petition accepted.