1999 P Cr (PLP)

Syed Zulfiqar Ali Bokhari, A.A.‑G. for Respondent. Date of hearing: 18th September, 1998. This is a petition under section 491 of the Code of Criminal Procedure for the recovery of Rashad son of Muhammad Rashid and Muhammad Rashid son of Siraj Din from the illegal and improper custody of Ahmad Ali, S.‑I., C.I.A. Sargodha Road, Faisalabad. The order for appointment of a bailiff to do the needful was passed on 17‑9‑1998. 2, Muhammad Saleem bailiff of this Court reached C.I.A. Sargodha Road, Faisalabad on 17‑9‑1998 at 3‑40 p.m. who entered his arrival in the Daily Diary which he took into his possession. Muhammad Rashad was found confined in the lock‑up while Muhammad Rashid was found sitting on a cot in a room. Ahmad Ali, Inspector informed the bailiff that Muhammad Rashad son of Muhammad Rashid was confined in the judicial lock‑up in case F.I.R. No.381 registered on 26‑6‑1998 under Article 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 in Police Station Chak Jhumra; case F.I.R. No.519 registered on 6‑8‑1998 under section 13 of the Arms Ordinance, 1965 in Police Station Chak Jhumra; Crime Case No.242 registered on 30‑4‑1998 under section 380/411, Pakistan Penal Code in Police Station Chak Jhumra and F.I.R. No.382, dated 26‑6‑1998 registered under sections 324 and 337‑F(iii)/ 337‑F(iv)/34, Pakistan Penal Code in Police Station Chak Jhumra.

3. Ahmad Ali, Sub‑Inspector informed the bailiff that he had brought Rashad son of Muhammad Rashid from the judicial lock‑up on 14‑9‑1998 with the permission of the Court to join him in the investigation of F.I.R. No. 169 registered on 1‑3‑1997 in Police Station Sargodha Road, Faisalabad and that he obtained physical remand for four days who was detained in the lock‑up under his control. He also informed the bailiff that Muhammad Rashid was arrested in the aforesaid case F. I. R. No. 169 of 1997 on 16‑9‑1998 whose arrest was shown in the Daily Diary. The bailiff mentioned in his report that he checked F.I.R. No. 169, dated 1‑3‑1997 registered under section 382, Pakistan Penal Code in Police Station Sargodha Road, Faisalabad wherein both Muhammad Rashad and his father Muhammad Rashid (both alleged detenus) were not nominated as the accused.

4. I have heard the learned counsel for the petitioner as well as the learned A.A.‑G. and gone through the record of Crime Case No.169 registered on 1‑3‑1997 under section 382, Pakistan Penal Code in Police Station Sargodha Road, Faisalabad. Ahmad Ali, Sub‑Inspector intimated this Court that on 9‑9‑1998 Shahbaz and Liaqat Ali appeared before him as the prosecution witnesses in the said case and stated that both Rashad and Rashid alleged detenus had made the extra judicial confession before them and thereafter, arrested them under section 54 of the Code of Criminal Procedure. On the query made by this Court he informed that Muhammad Rashid alleged detenu was produced before him by one Mansoor Iqbal.

5. The main contention of the learned counsel for the petitioner is that the basis of extra judicial confession about which the statements of Shahbaz and Liaqat P.Ws. were recorded on 9‑9‑1998 with respect to aforesaid F.I.R., dated 1‑3‑1997 both Rashad and Rashid alleged detenus could not be considered as the accused of the case and that it was simply a case of transgression of authority on the part of the Police Officer. Learned A.A.‑G. supported the Sub‑Inspector and took up the stand that both Rashad and Rashid alleged detenus are the accused of aforesaid case F.I.R. No. 169 registered on 1‑3‑1997 at Police Station Sargodha Road, Faisalabad under section 382, Pakistan Penal Code and that they are not the detenus. On the query made by this Court, the Sub‑Inspector could not produce any order from the Superior Police Officer to justify that he could investigate case F.I.R. No.169 registered on 1‑3‑1997. Keeping in view this aspect of the matter as well as the facts that the statements with respect to extra judicial confession of Rashad and Rashid alleged detenus were made before Shahbaz and Liaqat P.Ws. on 9‑9‑1998 about F.I.R. No. 169, dated 1‑3‑1997 who did not produce Rashid alleged detenu before the Police and he was produced before the Police by one Mansoor Iqbal and, thereafter, both of them were arrested under section 54 of the Criminal Procedure Code; it c‑M safely be held that Muhammad Rashad and Muhammad Rashid were involved afresh in the matter with mala fides. At this stage, I am tempted to record that the learned counsel for the petitioner as well as the alleged detenus took up the stand that Muhammad Rashid alleged detenu was the accused of case F.I.R. No.381 registered on 26‑6‑1998 under Article 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 at Police Station Chak Jhumra who was admitted to bail and to put him again in the judicial lock‑up the design was coined by the C.I.A. Staff who was confined in the police lock‑up. In the circumstances I hold that the aforesaid free hand cannot be granted to Ahmad Ali, Sub‑Inspector who arrested both Rashad and his father Rashid in Crime Case No. 169 registered on 1‑3‑1997 at Police Station Sargodha Road, Faisalabad under section 382, Pakistan Penal Code without any legal and factual justification. If the aforesaid type of working of the Police Officer is affirmed by the grant of weight, then nobody would be able to save his skin. 5‑A. For what has been said above, I declare both Muhammad Rashad and Rashid as the detenus who are set at liberty and are free to leave told the place(s) of their choice.

6. At this stage I have to express that Muhammad Rashid detenu can leave because his person was not obtained from the judicial lock‑up. However, Muhammad Rashad detenu is the accused of the aforesaid four criminal cases who was brought by Ahmad Ali, Sub‑Inspector from judicial lock‑up Faisalabad with the permission of the competent Court. Ahmad Ali, Sub‑Inspector is directed to remit Muhammad Rashad today in the same judicial lock‑up from which he had brought him. N.H.Q./M‑816/L Petition allowed