P L D 1959 (W (PLP)

(3) An abrasion, 3" x 2 ", on the back of the right shoulder. (4) A contused wound, 3" x ", bone deep, just under the right knee. (5) A contused wound, 3/4" x ", bone deep, " from the left ear in the front. (6) An abrasion, 1 " x ", on the upper portion of the right arm.

2. It is very unfortunate that the medical officer did not examine the dead body for rape, nor were her clothes sent to the Chemical Examiner or the Serologist in order to find out whether semen marks were present on them or not. It is also distressing to note that the medical officer did not inspect the clothes of the deceased to find whether there was any cut present on them corresponding to the injuries on the body.

3. The father of the girl was in Police Department, Karachi. He was informed of the tragic death of his daughter one day later, and he came to his home town and made several applications to the authorities that his daughter had been deliberately murdered and insulted by the Police, and, therefore, investigation should be made into the cause of her death. After the preliminary inquiry, Ghulam Ali Head Constable, Blue Shah and Manzoor Hussain Constables were arrested and tried under sections 330 and 342, P. P. C.

4. The learned Magistrate acquitted Manzoor Hussain and Bule Shah on somewhat peculiar grounds that they had to obey the orders of the investigating officers and that there was no clear evidence on the file to show that they used any force to Mst. Khurshid Begum, or that they had access to the room in which Mst. Khurshid Begum was being confined, or that they were in any way responsible , for the illegal confinement of Mst. Khurshid, her mother, Mst. Allah Rakhi, her brother Ahmad Khan, and Nishan Ali. Ghulam Ali Head Constable, however, was convicted under both the sections mentioned above and sentenced to five years' rigorous imprisonment and a fine of Rs. 500, or in default of the payment of fine to undergo further rigorous imprisonment for a period of six months on the first count, and to one year's rigorous imprisonment on the second one. Out of the fine, Rs. 300 were ordered to be paid to Nur Hussain complainant to meet the heavy expenses incurred by him to seek redress for the wrong done to his family.

5. Ghulam Ali has come up on appeal to this Court.

6. I have already reproduced the prosecution story and in order to understand the case all that is needed to reproduce is the accused's version of the unfortunate incident. According to his and his witnesses' statements, he reached Janga village on the 5th of June 1957, Mst. Khurshid was sent for at 4‑30 p.m., and was allowed to proceed to her house at 7 p.m. She was again sent for on the following day at 8 a.m., and kept by the police till 6 p.m. She was again sent for on the eventful day viz., the 7th of June 1957, at 7 a.m., and allowed to go at 8 a.m. She, as the accused put it, committed suicide after Ghulam Ali Head Constable permitted her to return to her house. He denied that he had voluntarily caused hurt to her for the purpose of extorting confession from her or any information which might lead to the detection of theft committed in the house of Mohkam Din. He also most emphatically 'denied that he had wrongfully restrained Mst. Khurshid in such a manner as to prevent her from proceeding beyond the house of Noor Khan (D. W. 3).

7. For the sake of convenience, I shall take the second point first. It is proved by Ghulam Ali himself, even if we do not attach any importance to the prosecution evidence, which I shall presently discuss, that Mst. Khurshid was sent for on three successive days and kept by the police in Noor Khan's house on the first day for about 2 hours, on the second day for 10 hours, and on the eventful day for one hour.

8. Although in the zimnis specific time is given during which. Mst. Khurshid was detained in the house of Noor Khan by Ghulam Ali appellant, Noor Khan, his own witness, said that Mst. Khurshid was suspected of being concerned in the theft in question, and therefore, she used to be sent for by the appellant in the morning and allowed to go to her, house in the evening.

9. Now, when a police officer receives an information about the commission of a cognizable offence, then he should either investigate the case himself or depute some other officer for the purpose. Such officer, or the officer, to whom the power to investigate is delegated, may send for persons to examine them as witnesses under section 161, Criminal Procedure Code, and when he summons anybody for this purpose he must record his evidence and allow him to return to his house. The investigating officer has no authority in law to detain any person, summoned to give a statement with regard to the commission of an offence: The investigating officer may also summon and detain any person who has been concerned in the commission of a cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned without an order from a Magistrate and without a warrant. If the police officer takes action under section 54 of the Criminal Procedure Code, then the arrested person must be produced before a Magistrate within a specified time (section 61 of the Cr. P. C.) and remanded to custody by the Magistrate also for a specified time. The police officer has no jurisdiction, after he has once arrested a certain person, to release him, except by following, the procedure laid down in section 169 of the Criminal Procedure Code. I have not come across any provision of law under which a person can be detained by the police on the pretext of keeping him " Shamil‑i‑tafteesh ". This is to all intents and purposes a wrongful confinement and the police officers resorting to it clearly commit an offence as defined in section 342 of the 'Pakistan Penal Code. This practice which is very much in vogue in this country and which affords a very good opportunity to the police to commit atrocities must be uprooted and stopped at once. It has no legal sanction behind it. The investigating officer if he suspects a person to be concerned in any cognizable offence, can arrest such a person and then release him under section 169 if he finds that his suspicions were not well‑founded.

10. I am, however, convinced that the prosecution version that Mst. Khurshid was kept in wrongful confinement continually for three days and three nights, if not more, is proved by unassailable evidence and the entries made in the ziminis by the appellant to the contrary are completely incorrect. I have no reason on this point to doubt the evidence of Mst. Allah Rakhi, P. W. 1, Nishan Ali P. W. 2, Shana, P. W. 3: and Ahmad Khan P. W.

14. None of them has any grudge against any of the police officers, and particularly against the appellant, to charge him falsely. Three of them are related to Mst. Khurshid, but Shana is absolutely independent. The fact that his first cousin was also suspected in the theft will not make any material difference or impair his testimony in any way.

11. The defence evidence that the deceased had already been allowed to go to her house at 8 a.m., on the tragic day and it was long after it that she ran to the well and committed suicide is negatived both by oral and circumstantial evidence upon the record. There is the evidence of Mst. Gulzar Begum and Mst. Ghulam Fatima, P. Ws. 6 and 7 respectively, who said that when the deceased was running to the well in order to jump into it, she was followed by some police constables. This makes it abundantly clear that she was still in the custody of the police when she found an opportunity to get out of it and jump into the well and thus get herself released permanently from the clutches of the police. I have no reason whatsoever, and none indeed ‑has been shown to me by the learned counsel for the defence to discredit the evidence of these two ladies. There is then the statement of the doctor which affords considerable assistance in order to decide whether Mst. Khurshid came from her house in order to jump into the well or from the house of Noor Khan where she was in the custody of the police. The jumping incident took place at Kachi rotiwela, which in the month of June, will be about 9 or 10 a.m. If she had been released by the police at about 8 a.m. on that day, then the probability is that she would have had her breakfast which could not have been digested until the time that she died. The doctor found her stomach empty. This lends a very great corroboration to the statement of Mst. Allah Rakhi when she said that she had taken tea for her daughter, but the latter refused to take it, because she had been very much distressed on account of the maltreatment of the police. Going through the evidence, there fore, I have arrived at the irresistible conclusion that Mst. Khurshid was kept in confinement by the appellant and his two acquitted co‑accused and it was when she became absolutely desperate that she jumped into the well and put an end to her young life. If she had been allowed to go to her house at 8 a.m., no reason is shown as to why did she commit suicide two hours later, and if she had come from her house to commit suicide, why should the police have followed her. The conviction of the accused‑appellant under section 342, P. P. C., is, therefore, well founded and must be maintained.

12. The next question which requires determination in this case is as to whether the accused‑appellant voluntarily caused hurt to the deceased for the purpose of extorting from her any confession or any information which might lead to the detection of the offence of theft or for the purpose of compelling Mst. Khurshid to restore or cause the restoration of stolen property to Mokam Din. A reference to the first report lodged by Mokam Din would show that he had not suspected anybody at all. Ali Haider, Sub‑Inspector (C. W. 1), when he arrived at the spot, sent for the deceased, her mother, brother, and uncle. He has riot given us the reason why he suspected them of having a hand in the theft, but the evidence produced shows that the real person who was suspected of having committed the offence of theft was one Mushtaq Ahmad who had absconded. This is clear from the statements of Shana (P. W. 3) and Ali Muhammad (P. W. g). Mst. Khurshid in all probability was sent for, because the Sub‑Inspector, and then after he had left, Ghulam Ali appellant, were given to understand that Mst. Khurshid had an illicit connection with the aforesaid Mushtaq Ahmad, and therefore, she was the proper person to give a clue with regard to the theft in question. They were unable to get any clue from her on the first day, or on the second, or even on the third day. They then became indignant and I am fully convinced that in order to extort information from Mst. Khurshid they resorted to the scandalous third‑degree methods. According to the statement of the doctor, apart from the injury which proved fatal, the deceased had several other injuries on her person which could not be caused by one fall. The explanation which the learned counsel for the defence has given of these injuries is that the deceased might have sustained them by coming in contact with the bricks of the wall of the well while she was going down into it, or that she" might have sustained them by coming in contact with the stones lying in the bottom of the well itself. There is, however, no evidence upon the record to show that the well has a walls made up of bricks or there were stones lying in the bottom of the well. In the absence' of any material upon the record, there is no escape from the conclusion that the injuries other than the fatal one, if not all, at least most of them, were caused to the unfortunate woman by the accused‑appellant and his two foot constables. If the accused -appellant did not cause these injuries and did not resort to third‑degree methods, I have not been able to find anything on the record to show what compelled the deceased to jump into the well and die. It is suggested that being young she might have been raped by Ghulam Ali and the two foot constables and kept in confinement not for the purpose of extorting a confession or any information from her, but for committing sexual intercourse with her for which the accused‑appellant was never charged. There is no evidence that any sexual intercourse was committed with the unfortunate woman, nor has it been so stated by the appellant. But if such intercourse was committed with Mst. Khurshid, I think it was a link in the chain of subjecting Mst. Khurshid to third‑degree methods. On the whole, I have absolutely no reason to look at the prosecution evidence with any suspicion and I am ‑fully convinced that the accused‑appellant as well as the other two constables, who have been wrongly acquitted, are guilty of the heinous offence for which they were charged. I have read very carefully the evidence of Nur Khan and Ghulam Hussain D. Ws., and have no hesitation in disbelieving them.

13. The appeal fails and is hereby dismissed. K. B. A. Appeal dismissed.