1999 PLP 1986 (MLD)

The report of Bailiff revealed that detenu was required in connection with case F.I.R. No. 210 of 1998 which was registered under sections 302/34/ 397, P.P.C. at Police Station Jalalpuf Bhattian. The report of Bailiff further revealed that respondent/S.H.O. did not mention the formal arrest of detenu in the Police Station. It is further revealed that name of the detenu was not mentioned in the F.I.R. and 1.0. did not hand over police file and stated that the same is lying with D.S.P. Jalalpur Bhatian. The report of Bailiff further revealed that S.H.O. denied the factum regarding the arrest of detenu and took the stand that the detenu was only summoned in connection with the above said case but the matter was consulted with D.S.P., who directed him to arrest the detenu and confined the detenu in the lock-up.

2. Petitioner's counsel contended that respondent malafidely did not mention the arrest in the Roznamcha. He further stated that name of detenu was not mentioned in the F.I.R. He further stated that Zimnis were recorded malafidely in back date by the respondent. He further urged that the detenu was arrested on 30-10-1998. and the respondent did not get any judicial remand from competent Court, therefore, respondent committed offence under section 342, P.P.C. He summed up his arguments; that the respondent gave threats to the petitioner and detenu that he shall teach them a lesson for filing of this habeas corpus Petition.

3. Learned A.A.-G stated under instructions that the name of detenu was specifically mentioned by his son before C.I.A. Police on 4-9-1998. He further urged that name of detenu - was also mentioned in extra-Judicial confessional statement made by his son (Naseer). who is admittedly nominated accused in the aforesaid case.

4. I have given my anxious consideration to the contention of learned counsel for the parties and perused the report of Bailiff and'contents of petition. It is admitted fact that name of detenu was mentioned by his son and his statement was recorded by C.I.A Police in Zitnni recorded on 4-9-1998 and 10-9-1998. It is also admitted fact that these Zimnis were not recorded by respondent, therefore, the contention of learned -counsel has no force and habeas corpus petition under 'section 491, Cr.P.C. is not maintainable. It is also admitted fact that report of Bailiff revealed that the name of detenu was not mentioned in F.I.R. and this fact is confirmed that respondent failed to mention the name of detenu in Roznamcha. These facts bring the case of detenu in the area of special circumstances, therefore, I convert this habeas corpus petitioner into bail application and the detenu is granted protected bail till 10-11-1998 subject to furnishing his bail bonds in the sum of Rs.3 lacs with one surety in the like amount to the satisfaction of Deputy Registrar (J) of this Court or trial Court. The detenu is directed to participate/join investigation otherwise concession of bail shall stand cancelled automatically.

5. It is now common practice of police functionaries that they did not mention at all the formal arrest of the detenu in Roznamcha. This fact revealed that the Police Officials/officers are not acting in accordance with law, Police Act and Rule framed thereunder and also under the provisions of L riminal Procedure Code. It is the duty and obligation of public functionaries to act within the frame-work of Constitution and law as is envisaged by Article 4 of the Constitution. The Hon'ble Supreme Court has also laid down principle in Ch. Zahoor Elahi's case (PLD 1975 SC 383); that each and every public functionary must act within the mandate of Constitution and law. The Hon'ble Supreme Court has also laid down guide lines for the public functionaries to act within the four corners of Constitution and law in Zahid Akhtar's case (P.L.D. 1995 S.C. 530). 5-A. This Court laid down guidelines qua the obligation and duties of the police officers/officials in W.P. No. 1884 of 1987; copy of the same has already been sent to L-G. Police Punjab for necessary action and compliance. By virtue of Article 189 of the Constitution read with Article 190 the judgment of Hon' hic Supreme Court is binding on each and every organ of the State. Similarly h\ virtue of Article 201 of the Constitution the judgment of this Court is binding on each and every organ of the Province. It is also pertinent `to mention here that section 12 of the police Act, 1861 prescribed powers of I.-G. to make Rules. Section 12-A prescribed powers of L-G. qua investigation and regulation of police accounts Chapter 25 of police Rules 1934 relates to investigation the matter. The duty of investigating officer is not only to set up a case of complainant party as such type of evidence as may enable the Court to record conviction by all means but also to bring out the truth on the surface to reach to a just decision. In other words, the purpose of investigation is to find out the truth arid to present the same before the Court by way of admissible evidence as it is undertaken to protect the innocent and never to let the guilty escape because of carelessness, excess of zeal or negligence of the police officials/officers. It is settled proposition of law that nobody can be penalized by the act of public functionaries. I am fortified by the dictum laid down by this Court in (PLD 1994 Lah. 3 ). In almost in majority of habeas corpus petitions, the report of the Bailiff revealed that the police functionaries did not mention the formal arrest of the detenu in the Roznamcha and did not mention arrest in any rapit and obtain remand from the competent Court in accordance with the provisions of Criminal Procedure Code within the specified period, therefore, the detenus who are criminal, got the benefit of the lapses, omissions and negligence of the Police officers/officials.

6. Our Constitution is based on trichotomy as is held by the Hon'ble Supreme court in Zia-ur-Rehman's case (PLD 1993 SC 49) and Mian Nawaz Sharif's case (PLD 1993 SC 473). From the aforesaid case law it is clear that Government of the day is also under obligation to enact laws keeping in view the prevailing situation in the Country for the welfare of the people of Country who are real sovereign of the Country. Similarly it is the duty and obligation of the Courts to decide the controversy between the parties by promoting the Rule of Law and to punish or acquit the offender on the basis of the evidence produced before the Court. It is primary duty of the police to collect the evidence as and when the matter is reported to the police. Investigation must be conducted by an honest person highly qualified for the job because on his finding and collection of the evidence the offender has to be convicted or acquitted. In American Jurisprudence, the power of police has been said is not a rule but an evolution is perhaps the most important of Governmental Powers as the very existence of Government as well as the security of the social order, life and health of the citizen, the enjoyment of private and social life and the beneficial use of the property are dependent upon this power. It is also settled in all over the World that in Society's day to day efforts to protect its citizens from the suffering fear, and property loss produced by crime, the policeman occupies the front line. It is he who directly confronts criminal situations and it is to him that the public looks for personal safety. It is pertinent to mention here that I.-G: Police is the sole authority who is responsible to maintain the law and order in the Country/Province as vast powers have been given to him under the provisions of Police Act, 1861 and Police Rules framed thereunder. The legislator has delegated powers to him to frame Rules and Regulations as mentioned above. I :un unahte to Understand that how much time is required to Police Officers/officials to mention the formal arrest of detenu in the Roznamcha and in the rapit. This is regrettable state of affairs. Constitution of every Country is the commitment of the N anon to act within the mandate of Constitution and Article 4 Stated to act in accordance with law and Article 5 sub-Article (2) of the Constitution laid down precondition loyalty to the Constitution and these Articles were interpreted by the Hon'ble Supreme Court of Pakistan in Ch.Zahoor Ellahi's case (PLD 1975 SC 383) and the relevant observation is as follows:-. "Even a Prime Minister is under clause (2) of Article 5 of the Constitution is bound to obey the Constitution and Law as that the basic obligation of every citizen. Since neither the Constitution nor any law can possibly authorize him to commit a criminal act or do anything which is contrary to law the immunity cannot extent to illegal or unconstitutional acts. " The word good Government is defined by the learned Division Bench in Mst. Saeeda Begum's case (PLD 1977 Karachi 226) and the relevant observation is as follows:- "The word 'good' prefixed before the word 'Government' is defined in Wharton's Law Lexicon, Fourteenth Edition, as 'the technical term applied to pleading to express soundness or validity' v.ltile the 'Government' denotes 'that form of fundamental rules and, principles by which a nation or a State is governed. "

7. Let a copy of writ petition be sent to L-G. Police Punjab, who shall look into the matter personally and issue specific instructions/directions to all the Police Officers/officials; that the Police Officers/officials must record immediately the formal arrest of detenu in the Daily Roznamcha and in rapits, and obtain remand from the competent Court wilhin the specified time in accordance with law, therefore, it is the duty and obligation of Police Officers/officials to act strictly in accordance with the spirit of law. By virtue of Article 4 of the Constitution is the duty and obligation of every citizen including the public functionaries to act in accordance with law. With the above observations, the writ petition is disposed of. H.B.T./N-123/L Order accordingly.