1999 P Cr (PLP)

Malik Muhammad Latif Khokhar for Petitioner. Fauzi Zafar, A.A.‑G. for Respondents. Date of hearing: 27th August, 1998. This is a petition under section 491 of the Code of Criminal Procedure for the recovery of Mukhtiar alias Bugri aged 20 years and Ijaz alias Jajji aged 17 years sons of Muhammad Suleman real paternal‑nephews of Abdur Rehman petitioner from the alleged illegal and improper custody of the S.H.O., Police Station Gulgasht, Multan. This petition was filed at 3‑30 p.m. on 26‑8‑1998.

2. A bailiff was deputed. Nazir Altmad bailiff reached Police Station Gulgasht, Multan at 5‑30 p.m. He took into possession the daily diary of Police Station Gulgasht. Mukhtiar alias Bugri and Ijaz alias Jajji were present in one room on the first floor of the police station alongwith three ether persons who were identified by Abdur Rehman petitioner. He took them into his possession. The S.H.O. of Police Station Gulgasht was not present. Ahmad Ali, S.‑I. intimated him that the S.H.O. had gone to the Senior Superintendent of Police, Multan to attend a meeting. Ahmad Ali, S.‑I. intimated the bailiff that against Shahbaz alias Madi also known as Shafat alias Madi, a real brother of the detenus, an application was received from the office of the Deputy Inspector- General of Police, Multan Range, Multan about the abduction of Mst. Zarina and that Muhammad Asghar, A.S.‑I. had gone to Khanewal within the area of Police Station Khanewal Kohna to arrest the aforesaid Shafat alias Madi who did not meet him and that his two brothers Mukhtiar alias Bugri and Ijaz alias Jajji were brought by Muhammad Asghar, A.S.‑I. According to the bailiff no case was registered against both Mukhtiar alias Bugri and ljaz alias Jajji and their arrest was not shown in the daily diary of Police Station Gulgasht Multan. A photostat copy of the aforesaid application about the abduction of Mst. Zarina was handed over to the bailiff which has been attached with this file alongwith his report.

3. The S:H.O. and Muhammad Asghar, A.S.‑I. have expressed their regrets by admitting their fault as well as the transgression of authority in the matter. In the application submitted about the abduction of Mst. Zarina both Mukhtiar alias Bugri and Ijaz alias Jajji are not mentioned as the accused. Their arrest was not shown in the daily diary of Police Station Gulgasht Multan when the same was taken into possession by the bailiff and rather the same could not be entered therein as the S.H.O. has admitted that both of them are not the accused of any case as no case has been registered or is pending against them in his Thana. In view of this aspect of the matter, it can safely be held that it is a case of transgression of authority on the part of the police as well as the violation of human rights. Under the Islamic Law no person is responsible and liable for the misdeeds of the closest relative(s). I would refer to the Khutba‑tul- Hajja‑tul‑Wida wherein our Holy Prophet Muhammad (peace be upon him) has very kindly expressed that "henceforth, offender himself will be responsible for the offence; no son will be charged for the father's crime and no father will be punished for the crime committed by the son". As such, I hold that the removal of Mukhtiar alias Bugri and Ijaz alias Jajji from District Khanewal by the Police to Police Station Gulgasht Multan is nothing but their arrest without legal or factual justification. Their aforesaid brother may be an accused of any case, but they are not liable for his actions. In the circumstances, I hold that the arrest of both Mukhtiar alias Bugri and Ijaz alias Jajji by the police was not justified. Consequently, I declare both Mukhtiar alias Bugri and Ijaz alias Jajji as the detenus who are released and are free to leave to their own place(s) of choice.

4. Before me the S.H.O. and Asghar Ali, A.S.‑I. took up the stand that both Mukhtiar alias Bugri and Ijaz alias Jajji were not confined in the police station who were sitting on a Charpai. This is queer type of expression. Nobody would like to go to a police station for an excursion. Further, both the released detenus are the residents of District Khanewal who were found by the bailiff on the first floor of the police station. As such it cannot be held that they were present in the police station of their free‑will.

5. The action of Asghar Ali, A.S.‑I. and the S.H.O. is not only violative of human rights the same also offends the law. The commission of such type of illegality on the part of police is increasing with the passage of time with good speed even though the police is Mohafiz of the citizens. Such type of habeas corpus petitions is being filed quite in rife in Multan Bench. Yesterday (26‑8‑1998) the Senior Superintendent of Police, Multan appeared in another matter of the instant nature who had expressed his sorrow. However, this habeas petition was filed at 3‑30 p.m. yesterday which proved successful on the same day. As such I would like to send a copy of this order in a sealed cover to the Senior Superintendent of Police, Multan for his record.

6. Mukhtiar Ahmad alias Bugri and Ijaz alias Jajji were confined by the police without any legal justification. I, therefore, direct the S.H.O. Police Station Gulgasht, Multan to pay an amount of Rs. 2,500 (Rupees two thousand and five hundred only) to both the released detenus to be equally shared by them. In this respect reliance is placed on the ruling printed as Abdul Majeed v. S.H.O. Police Station Rohilanwali, District Muzaffargarh 1995 PCr.LJ 1209 Lahore, of which I am the author.

7. This matter shall be placed before this Court on 28‑8‑1998 N.H.Q./A‑334/L Petition allowed