2015 PLP 1686 (YLR)

GHULAM SARWAR KORAI, J.

This constitution petition has been filed by the petitioner stating therein that he has Arms Repairing Workshop in Piryaloi, Taluka Kingri, District Khairpur, and has got such license. He is also partner of Classis Armourer situated at Frere Road Sukkur. On 29-12-2012, the petitioner along with his son Ali Hyder Khan proceeded to Ranipur on their Car No.ICT-275, Plats. On the way they were stopped by respondent No.3 Khair Muhammad Samejo, SHO Police Station Tando Masti, inquired documents of the car from the petitioner, took their body search and recovered Rs.3,80,000 from the petitioner. The petitioner and his son were brought by SHO Khair Muhammad Samejo at Police Station Tando Masti. They were tortured and then brought at CIA Centre Khairpur, where they were also tortured by respondent No.2 Sagheer Mugheri, DSP/ Incharge CIA Khairpur, and demanded Rs.300,000 more illegal gratification for their release. Ali Hyder son of the petitioner was detained while the petitioner was released to arrange the amount. Since the son of the petitioner was detained illegally and unlawfully by the respondent No.3 and an amount of Rs.3,80,000 and Car were also remained with the respondent No.3, therefore on 31-12-2012 he filed present petition with the following prayers:-- (a) To issue Rule Nisi to the respondent No.1 with a strict direction to recover the safe custody of innocent son of the petitioner (detenu) and his vehicle bearing No.ICT-275 Plats, from wrongful detention of the respondents Nos.2 and 3, produce before this honourable Court and after recording the statement of the detenue, he may be set at liberty. Moreover, this honourable Court may issue directions for taking Departmental action against the respondents Nos. 2 and 3 and their sub-ordinates according to law. (b) To direct the respondent No. 1 to provide legal and lawful protection to the petitioner from the clutches of respondents Nos.2 and 3. (c) To grant any other relief which this honourable Court deems fit and proper in circumstances of the case. (d) To award the costs of the petition.

2. On the same day the notices to the respondents Nos.1 to 3 and Additional Advocate General were ordered for 1-1-2013. The respondents Nos.2 and 3 were directed to appear in person and produce Ali Hyder son of the petitioner before the Court at 1:00 p.m. on 1-1-2013. The respondents Nos.2 and 3 produced Ali Hyder son of the petitioner in handcuff. They filed their parawise comments stating therein that on 31-12-2012 at about 6:40 a.m. the present petitioner, his son and another person started firing upon the police party with the intention to kill them while they were signaled to stop by the police party for checking their vehicle. The police also fired in their defense but nobody from either side sustained any injury. Ali Hyder was arrested while petitioner and another person made their escape. From the personal search of Ali Hyder one unlicensed pistol was recovered, therefore two FIRs being FIR No.183/12 under sections 324, 353, and FIR No.184 under section 13-D Arms Ordinance were registered at 0715 and 0735 hours respectively. They further submitted that since the petitioner is involved in the main case as well as his son and also his son has been prosecuted for offence under section 13-D Arms Ordinance, therefore, they have managed the false petition. The respondents Nos.2 and 3 prayed that the petition be dismissed with costs.

3. We have perused the file. This petition filed on 31-12-2012 with the permission of the Court and the permission was granted at about 9:30 a.m. On the same day the notices were ordered to the respondents Nos.1 to 3 and Additional Advocate General. Respondents Nos. 2 and 3 were directed to appear in person and produce Ali Hyder on 1-1-2013. On 1-1-2013 they managed these two FIRs. In the main FIR the petitioner, his son and another person allegedly fired upon the police party with the intention to kill them but none from either party sustained any injury and even no scratch was received on the mobile van of the police as well as on the Car of the petitioner. The time of the alleged incident is 6:40 a.m. but the petitioner and another person succeeded to made their escape but even they were not chased by the police party. 31-12-2012 was a working day but even Ali Hyder was not produced before the concerned Magistrate for remand, therefore, we are of the view that both FIRs viz. FIR No.183/2012 under sections 353, 324, P.P.C. 13-D A.O. and FIR No.184/2012 under section 13-D Arms Ordinance have falsely been registered against the petitioner, his son and another person by the SIP Khair Muhammad Samejo in order to save his illegal act and thus both the FIRs were quashed.

4. The car was retained by the respondent No.3 without any reason though admittedly the same was recovered from the possession of the petitioner, the same was ordered to be given to the petitioner and proceeding, if any, in respect of car was quashed.

5. Since allegation of the petitioner of Rs.3,80,000 snatched by the respondent No.3 and further demand of Rs.300,000 as illegal gratification from the petitioner for release of his son Ali Hyder has not been specifically denied by the respondent No.3 in his comments, therefore, he being public servant committed the cognizable offence punishable under section 161, P.P.C. R/W section 5(2) Act-II of 1947. The FIR against him was ordered to be registered by the Circle Officer, ACE, Khairpur at the verbatim of the petitioner and to submit the report under section 173, Cr.P.C. This petition was disposed of on 1-1-2013 and these are the reasons of the same. MH/F-1/Sindh Order accordingly.