2011 SCMR 1420 (PLP)

MIAN HAMID FAROOQ, J.

We, through this single judgment, propose to decide two petitions (Criminal Petition No.387-L of 2008 and Criminal Petition No. 403-L of 2008), as both arose out of a single judgment passed by the learned Lahore High Court at Lahore.

2. Rana Muhammad Aslam (petitioner in Criminal Petition No.387-L of 2008) and Badar Munir (petitioner in Criminal Petition No.403-L of 2008), seek, leave to appeal against order dated 3-9-2008, whereby the learned Lahore High Court at Lahore, while setting the detenu (Mazhar Bashir) at liberty, imposed special costs of Rs.50,000 upon Badar Munir, S.I. and Rs.25,000 upon Rana Muhammad Aslam, Inspector.

3. Azmat Bashir filed a Habeas Corpus Petition (Criminal Miscellaneous No. 955-1-1 of 2008) for setting at liberty his brother Mazhar Bashir, the detenu, who was, statedly, taken into illegal custody by Badar Munir S.-I. from Okara. The learned High Court deputed the bailiff, who went to the Police Station and recovered the detenu on 29-8-2008 at about 2-45 p.m., who was found in a room of the Police Station, Chuhng. The bailiff submitted his report on 30-8-2008 and produced the detenu in Court on 30-8-2008, in the presence of Rana Muhammad Aslam, Inspector. According to the bailiff report, the detenu was, arrested by Badar Munir, Sub-Inspector, Police Station, CIA Nawan Kot, District Lahare on 9-8-2008, detained him in illegal confinement till 24-8-2008, and later on handed him over to Rana Muhammad Aslam, Inspector/Investigation Incharge Chuhng. It was also reported by the bailiff that there was no proof on record of the Police Station qua the arrest of the delenu and he was detained illegally from 9-8-2008 to 29-8-2008. The detenu was medically examined under the directions of learned High Court. Both the petitioners appeared before the learned High Court in whose presence the detenu explained the entire incident. The learned High Court after hearing the petitioners and the detunu disposed of the petition, set the detenu at liberty, imposed special costs of Rs.50,000 upon Badar Munir, Sub-Inspector and Rs.25,000 upon Rana Muhammad Aslam, Inspector to compensate the detenu and additionally directed that a copy of the order shall be sent to the Inspector General of Police, Punjab to proceed against them in accordance with the provisions of PEDA, 2006, vide impugned order dated 3-9-2008, hence the present petition.

4. Rana Muhammad Arif, Advocate Supreme Court learned counsel for the petitioner in Criminal Petition No.387-L of 2008, submitted that the impugned order was passed beyond purview of section 491, Cr.P.C. and that neither statement of the petitioner was recorded nor any show-cause notice was issued to him, therefore, the impugned order is not sustainable in law. He relied upon "Khan Muhammad v. SHO (1995 SCMR 1283) and Sallan v. Lal (1978 SCMR 83). Syed Tayyab Mehmud Jaffery, learned counsel representing the petitioner in Criminal Petition No. 403-L of 2008, submitted that the detenu was not recovered from the custody of the petitioner, he after arresting the detenu handed him over to the SHO concerned and therefore, he could not be blamed. Mian Tariq Ahmed, learned Additional Advocate-General, on a Court query, supported the impugned judgment and submitted that there was no need to issue any show-cause notice to the petitioners, as they were present during the proceedings and heard by the High Court.

5. We have heard the learned counsel and examined the available record. Admittedly, the detenu was recovered by the bailiff of the Court from a room of Police Station Chuhng, District Lahore on 29-8-2008, he was arrested by Badar Munir, S.I on 9-8-2008 and was never produced before any Court of law. The detenu was not only kept under illegal detention from 9-8-2008 to 29-8-2008 but also subjected to physical torture, which fact is supported by the medical report. Although, the petitioners were heard by the learned Court, yet they could not produce any piece of evidence to show that the arrest of the detenu was legal, it was so entered in any diary or any F.I.R. was registered against him and that either the detenu was not detained by them or he was not recovered from a room of Police Station, Chuhng. It is evident from the impugned order that the bailiff made the statement, supporting his report, and the detenu explained' the entire incident regarding his detention before the High Court, in the presence of both the petitioners, who could not refute the statements of said two persons, inasmuch as, they could not contradict the medical report.

6. As regards the judgments relied upon by the learned counsel, suffice it to say that they are distinguishable, under the facts and circumstances of the present case and are of no avail to the petitioner.

7. Under the circumstances, we feel that the impugned order is legal, justified and apt to the facts and circumstances of the case, is not open to any exception and the findings whereof do not call for any interference by this court. However, we feel that the amount of costs imposed on the petitioners was slightly on higher side and thus while taking a lenient view, we are inclined to reduce the amount of costs of Rs.50,000 imposed upon Badar Munir to Rs.25,000 and of Rs.25,000 imposed upon Rana Muhammad Aslam, Inspector to Rs.10,000 which will adequately meet the ends of justice.

8. In view of the above, the present petitions are converted into appeals and partly allowed only to the extent of reduction of amount of costs of Rs.50,000 imposed upon Badar Munir to Rs.25,000 and of Rs.25,000 imposed upon Rana Muhammad Aslam, Inspector to Rs.10,000 and the impugned order is modified only to that extent. Needless to add that rest of the order will hold the field. N.H.Q./M-33/SC Costs reduced.