1999 PLP 2565 (MLD)

The facts forming the background of the instant Constitution Petition are that a case vide F.I.R. No.252, dated 3-10-1998 was registered at Police Station Pindigheb District Attock under sections 302, 324, 148 and 149, P.P.C. against Karim Bakhsh, Muhammad Ghaffar, Ajaib alias Zafar Khan, Muhammad Shakeel and Muhammad Aqeel for the murder of one Karam Khan. The grievance of the petitioner in the instant Constitution petition is that the persons who are alleged to have committed the murder of Karam Khan are named in the F.I.R. and about whose identity, there is no confusion or dispute. This notwithstanding, the police is harassing the petitioner and the other members of his family by summoning them time and again to the police station.

2. Feeling persuaded by the submissions, thus, made at, the bar by the learned counsel for the petitioner, Malik Muhammad Kabir, learned Assistant Advocate-General Punjab was directed to enter appearance after seeking instructions for the concerned police and to assist the Court in attending to the questions raised by the learned counsel for the petitioner in the Constitution Petition. The S.H.O., Police Station Pindigheb was also sent for to meet and substantiate the allegations made by the petitioner's learned counsel qua the police of Police Station Pindigheb. Accordingly, Malik Muhammad Kabir, Assistant Advocate-General appeared in the Court alongwith Akhtar Ali, A.S.I. who is the Investigating Officer of the case.

3. Appearing in the Court pursuant to the notice, learned Assistant Advocate-General Punjab has raised the following contentions:-- (i) True it is that the persons against whom the case has been registered are named in the F.I.R. and their identity is disclosed therein beyond doubt and the police is duty bound to proceed against them alone; (ii) That while the police is charged with the duty of apprehending and proceeding against the accused named in the F.I.R. the relatives of the accused who are their kith and kins and know full well about the whereabouts of the accused are not at all absolved of their responsibility to render every possible assistance to the police in apprehending the accused. Learned Law Officer in this behalf placed reliance on sections 42 and 47 of the Cr.P.C.; (iii) That it has become rather a fashion that when the police in an effort to lay hands on the accused associates their relatives and those who are supposed to have knowledge about their whereabouts keeping in view the normal course of events, they in order to exert pressure on the police not to arrest even their required accused take to filing frivolous petitions based on allegations of harassment as has been done in the instant case. Learned Law Officer argued with some vehemence that in a situation such as the one in the present case, the Court is called upon to take into account the objective conditions prevalent in the society, various tactics used by the accused persons and the relatives to exert pressure on the police and to pass such orders as are mandated by the ends of justice.

4. Learned counsel for the petitioner disputed the correctness of the stand taken by the learned Law Officer and maintained that if the police was allowed to throw as wider a net as has been done in this case then this would lead to a chaos in society and the police in the garb of their investigative powers shall take into custody even the most distantly related relatives of the accused and the innocent people who otherwise might have nothing to do with the offence subject-matter of inquiry/investigation.

5. I have considered and evaluated the respective submissions of the learned counsel for the parties and have perused the record placed before me. There is no denying the fact that the accused are clearly named in the F.I.R. and there is no question of their identity being mistaken. This being so, the police ought to proceed against them alone for securing their arrest for the purposes of the case registered against them. However, the contention raised on behalf of the learned Assistant Advocate-General Punjab is not altogether without force. We are all members of this Society and know so well the norms prevalent in it. In spite of the fact that we are at the advent of the 21st Century yet we have not become so civilized as to voluntarily do of our own free-will what is required of us as men of ordinary prudence and as men of gentlemanly character. Though we may know that some one of our kith and kips might have committed the most heinous crime of committing the murder of another innocent person, yet it is inconceivable that we on' our own responding to the qualms of our conscience would extend a helping hand to the police to arrest our kith and kins involved in the murder. We would rather do everything possible to save his skin to frustrate the efforts of the police to apprehend him. This being the trial of our character and, thus, being the norms prevalent in the society, what should the police do in order to affect the arrest of the accused if the accused do not surrender before the police otherwise. The police cannot be expected to use some magic rod, so as to make the otherwise absconding accused appeared before them with the help of the same. When such are the difficulties in the way of the police to apprehend the real culprits in a case, some sort of latitude shall have to be extended to the police if the accused/culprits have to be apprehended to be brought to book. As hereinabove observed in spite of all the advancement of the present times, criminals are criminal and those who hide them and harbour them are not, in any way, less criminal. While I see lot of force in the contention of the learned counsel for the petitioner that the petitioner and the other members of his family who are not named in the F.I.R. may not be harassed yet to say that they are untouchables or that they are clothed with fundamental rights so formidable that no body should look towards them and ask for their assistance for apprehending the accused no-matter how well inform they might be about the accused and his/their whereabouts. Such an unqualified order cannot be passed by this Court whereby the relatives of the accused and the real culprits cannot be looked to and asked to render the assistance required of them as persons having the best of knowledge about the presence or otherwise of the accused persons. While being on this subject, it appears appropriate to refer to, two provisions in the Code of Criminal Procedure which are attracted to the facts of this case. These are sections 42 and 47 of the said Code. For facility of reference the same are reproduced hereunder:-- S.42. Public when to assist Magistrates and Police.

Every person is bound to assist a Magistrate or Police Officer reasonably demanding his aid-- (a) in the taking or preventing the escape of any other person whom such Magistrate or Police Officer is authorised to arrest; (b) in the prevention or suppression of a breach of the peace, or in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.

47. Search of place entered by person sought to be arrested

"If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, the person residing in, or being incharge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein. " Code of Criminal Procedure was brought on the Statute Book vide Act V of 1898. The above reproduced sections of the Code have all along formed part of the Code. The framers of the Code while enacting the Code and the above provisions of sections 42 and 47 were mindful of the difficulties of the police in apprehending the accused involved in a case. It was with a view to helping the police in achieving the said object, that the provisions contained in sections 42 and 47 were made part of the Criminal Procedure Code. Although exactly hundred years have gone by since the enactment of the Code of Criminal Procedure yet human nature the world over remains the same. The obligation put on the members of the society by these sections of the Code of Criminal Procedure appears to be as much justified even after the expiry of hundred years as it was thought of by the framers of the Code in 1898. These are not just idle provisions, there is rather a philosophy logic and a wisdom behind the enactment of these provisions. The non-arrest of the accused in a case and his being brought before the Court for being tried for the offence alleged against him/them cannot but lead to chaos and confusion in the society. Therefore, if the affairs of a society have to be run in an orderly manner, the police must be conceded the -powers to arrest the accused by using every possible means for achieving the said object, of course remaining within the limits of decency. While holding as I do, I am not at all oblivious of the fundamental rights which every citizen of the state is clothed with. While I cannot but say that the same must be respected yet the fundamental rights of those who are rather butchered and slaughtered with impunity by the merciless hands of the accused cannot be sacrificed on the alter of the aforesaid fundamental rights nor can it be said that the fundamental rights of those who are butchered and slaughtered are, in any way, inferior to those of the accused and their relatives who are sought to be associated by the police with the investigations. Therefore, while concluding it is ordered that the police must concentrate all its efforts of affecting the arrest of the named accused in the F.I.R. and while remaining within the limits of decency and morality, they can associate anyone else whom they honestly consider to know or to have even faintest idea as to the whereabouts of an accused person.

6. Before parting with this order, I cannot resist making an observation that after hearing the learned counsel for the parties and the Investigating Officer, I have a feeling that the instant Constitution Petition has been manoeuvered by the police in league with the accused, so as to procure an order whereby the relatives of the accused sought to be arrested tray not be associated with the case in any manner and the arrest of the accused may not come about. It s indeed a lamentable situation but unfortunately, I have been driven to this conclusion by observing the conduct of the police.

7. The instant Constitution Petition is, therefore, disposed of with the direction that the police shall do everything in its powers to affect the arrest of the accused named in -the F. I. R. and remaining within the limits of decency and morality shall associate any other person including the petitioner and the other relatives of the accused whom the police genuinely believes to be in the know of the whereabouts of the accused. Q.M.H./M-933/K Petition disposed of