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Petitioner: MAZHARUDDIN VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Sabihuddin Ahmed, Rasheed A. Rizvi Title: MAZHARUDDIN vs THE STATE Case No.: Criminal Miscellaneous No,168 of 1997 C.P. No,375 of 1991 Date of Judgment:1998-02-17 Reported As: 1998 P Cr. L J 1035 Result: Order accordingly
Judgment ORDER ' SABIHUDDIN AHMAD, J.--- On 15-10-1997 at about 2-30 p.m. We received separate telegrams from one Mazharuddin resident of House No,37/E, Unit No,9, Latifabad, Hyderabad, alleging that on 13-10- 1997 at about 11-40 p.m., A.S.-I. Imtiaz of Police Station "B" Latifabad alongwith Constable Niaz and Musharaf and others trespassed into the house with deadly weapons without any search warrant. They misbehaved with him, his wife and daughter and forcibly took away his son Manzoor Mansoor and Imran (minor) to the Police Station in the Mobile. The aforesaid Mazharuddin went to the police station and asked the S.H.O. Aijaz Kaimkhani why his sons had been brought. He was informed that they were required to be interrogated and they will be released in the morning. The petitioner once again went to the police station at about 8-30 a.m. But, as stated in the telegram, the S.H.O. And A.S.-I. Imtiaz flatly refused to release petitioner's sons without greasing their palms. It was alleged that the petitioner's sons were being subjected to highhandedness and prayed that the telegram be converted into a petition with order for production of the detenus and legal action against delinquent police officials. 2. We directed the telegram to be registered as a Constitutional petition and further directed the Deputy Registrar of the Court (Hyderabad Circuit Bench) to visit the police station, inspect the Roznamcha/Station Diary and report whether the detenus were detained therein as alleged in the telegram. Same day the Deputy Registrar submitted his report stating that he accompanied by Mr. M. Iqbal Memon, Assistant of the Court, visited the police station and found five persons, including the petitioner's son Manzoor Mansoor detained in the lock-up. He further reported that alongwith the aforesaid detenu four other persons were detained and the names of these persons were entered in the Station Diary. He brought the Station Diary alongwith him and after inspecting it we
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ordered that the photo copies of the relevant pages be taken and placed on the record. Upon the receipt of this report, we directed the S.H.O. "B" Section Police Station Latifabad to produce the detenu in Court on 17-10-1997 alongwith his explanation for such detention and also issued notice to the Additional Advocate-General. 3. On 17-10-1997, Mr. Umeruddin, Advocate submitted that he had also filed Criminal Miscellaneous Application No,168 of 1997, in respect of the same detention. We accordingly decided to take up both matters together. The detenu was produced and examined in Court and he claimed that he was kept in confinement in the lock-up since 13th October, 1997. We examined the Station Diary and the police file in the presence of the S.H.O., who was unable to refer to any entry evidencing the arrest/detention of the detenu nor was he able to refer to any basis for a reasonable suspicion to the effect that the detenu was involved in a cognizable offence. We, therefore, directed his release and put the learned A.A.-G. As well as the S.H.O. Concerned on n6tice to make their respective submissions on the following points:-- (i) Whether in the circumstances of the case any monetary compensation should be payable by the concerned Police Officer or the State or both; (ii) Whether a criminal case is to be registered against the S.H.O. 4. Mr. Aijaz Ali Kaimkhani, S.H.O. Filed a counter-affidavit repudiating the contents of the telegram. He alleged that the detenu Mansoor was required for the purpose of investigation in Crime No,22 of 1996 and during the night of 13th October, 1997 a police party went to his house to enquire about his whereabouts. According to him the petitioner informed him (deponent) that the detenu had gone out of Hyderabad on account of some personal work and undertook to produce him before the police upon his return. However, he was unable to refer to any entry in the station diary which could indicate that he had gone to the petitioner's house or met him on 13-10-1997 or taken any other steps in relation to investigation of Crime No,22 of 1997. Moreover, he further stated in his counter- affidavit that on 16-10-1997 the petitioner and the detenu arrived at the police station between 10 or 10-30 a.m. While he was away on patrolling duty. Within a few minutes of his return to the police station and before he could record an appropriate entry in the station diary relating to the detenu the Deputy Registrar arrived at the police station and took possession of the diary. The detenu according to him was sitting at the police station at that time. He claims that the telegram was apparently sent with some mala fide motive and claimed that he bore no malice against the petitioner or the detenu. 5. Mr. Abdul Sattar Kazi learned counsel for the S.H.O. (respondent No,4) attempted to explain away the conduct of his client by submitting that the detenu was required in connection with a substantive offence and the only lapse on the part of the said respondent was a few minutes delay that might have occurred in recording his arrest in the station diary. We regret that the matter is not as simple as Mr. Kazi would like us to believe. In the first place the aforesaid respondent has not been able to establish any nexus between the detenu and the crime in connection with which he was allegedly arrested. Admittedly the detenu's name does not appear in the F.I.R. Nor have the respondent placed any material whatsoever before the Court either to satisfy us that the detenu was not arrested without lawful authority or even to show that there was some basis upon which the respondent No,4 could reasonably suspect the detenu being involved in a cognizable offence. The law in this respect is very clear. In the case of Government of Sindh and others v. Raisa Farooq and others 1994 SCMR 1283 the Honourable Supreme Court has explicitly held that even when a person is arrested on the basis of a criminal charge by the police, requisite information must be laid before the Court to show that there are reasonable ground for believing that the detenu is involved in the crime that he is charged with. Indeed under section 54 of the Criminal Procedure Code a Police Officer is competent to arrest a person in respect of whom there is some reasonable
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basis to suspect his involvement in a cognizable offence. Nevertheless, as held by a Divisional Bench of this Court in the case of Muhammad Siddique v. Province of Sindh PLD 1992 Kar. 358:-- "But such a power can be exercised only in those cases where a Police Officer is possessed of some evidence indicating involvement of a person under four situation mentioned in section 55(1), Cr.P.C." 6. In Razia Perveen v. S.S.P., Multan 1992 PCr.LJ 131 a similar view was taken by the Lahore High Court in the following words:-- "In order to act under this section there must be a reasonable suspicion of the person to be arrested having been concerned in a cognizable offence any arrest of the citizen in reckless disregard of the condition imposed in this section would make the arrest and detention of the subject illegal and the Police Officer arresting or detaining the subject would be exposed to prosecution under the Pakistan Penal Code and also for departmental action under the relating rules." 7. Against the above legal position and in the absence of any material whatsoever even remotely suggesting the detenu's involvement in Crime No,22 of 1996 there can be no possible escape from the conclusion that his arrest and detention when ever effected was patently without lawful authority and of no legal effect and was not even sought to be seriously defended by the respondents. At the same time while the petitioner and the detenu consistently maintain that the latter was arrested on a night of October 13, and kept unlawfully in the police lock-up, the explanation offered by the respondent No,4 can, to say the least, be hardly given any credit. In the first place his contention in the affidavit that the detenu was also sitting when the Deputy Registrar arrived at the police station is contradicted by the Deputy Registrar's Report Wherein he found the detenu in the lock-up alongwith certain other persons. Mr. Sattar Kazi emphatically argued that the petitioner and the detenu had arrived at the police station only a short while before the arrival of the Deputy Registrar but was unable to explain why the petitioner in such case could anticipate the event and dispatch a telegram on a previous day specifically alleging the factum of detention in police lock-up. Obviously even if the petition intended to visit the police station on 16-10-1997 he could not anticipate at what time, on an earlier date i,e, 15-10-1997 the Court would pass orders on his telegram or when a designated officer would visit the police station. Indeed in attempting to foist the petitioner and the detenu with prior knowledge of possible arrest the respondent No,4 has given out the story of having visited the detenu's house and having met the .Petitioner on 13-10- 1997 but has not even been able tc corroborate the factum of such visit by reference to his own station diary. In the circumstances, no credit whatsoever can be attached to his statement. To cover up his illegal action he has made a false statement. 8. Mr. Umeruddin Qureshi, learned counsel for the petitioner contended that it was proper for this Court, in the circumstances, to direct that a criminal case be registered against the S.H.O. And other delinquent Police Officer. He referred to decisions of the Lahore High Court in the cases of Rehmat Bibi v. Station House Officer and another 1992 MLD 104, Bashir-un-Nisa v. S.H.O. 1992 PCr.LJ 948, Abdul Jabbar v. S.H.O. 1991 PCr.LJ Note 162 p.117 and Liaquat Ali v. Muhammad Saleem 1991 PCr.LJ 1322. In all these cases which came up before the Court through applications under section 491, Cr.P.C., the detenus were found to be kept in unlawful custody and apart from setting them at liberty their Lordships directed that criminal cases be registered against the delinquent Police Officer and be investigated by Senior Officers. In the case of Rehmat Bibi, specific directions were issued by S.M. Zubair, J. To the effect that the accused Police Officers be taken into custody forthwith as required by law and they should be placed under suspension pending litigation. Indeed the same view has been taken in the case of Razia Perveen v. S.S.P., Multan 1992 PCr.LJ 131:-- "In order to act under this section there must be a reasonable suspicion of the person to be arrested having been concerned in a cognizable offence any arrest of the citizen in reckless
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disregard of the condition imposed in this section would make the arrest and detention of the subject illegal and the Police Officer arresting or detaining the subject would be exposed to prosecution under the Pakistan Penal Code and also for departmental action under the relating rules." 9. A Division Bench of this Court in the case of Muhammad Siddiq v. Province of Sindh PLD 1992 Kar. 358 also observed that when a Police Officer arrest a person under a "blind F.I.R." (where does not disclose the identity of the offender) and is unable to place any material which could reasonably connect the accused/detenu with the offence for which he is charged, not only such arrest is unlawful or arbitrary but even such Police Officer cannot claim any protection under the law and could be punished for excesses. In view of the above the answer to the second question is clearly in the affirmative and directions can be issued for registration and investigation of criminal offence. 10. As to the question of monetary compensation, however, we regret to say that we did not receive much assistance either from the counsel for the parties or the learned A.A.-G. We are indeed aware that in certain cases of similar nature i,e, Faqir Muhammad v. S.H.O. 1992 PCr.LJ 1387, Ilyas Masih v. Raja Zaffar Iqbal PLD 1992 Lah. 220 and Muhammad Ebrahim v. S.H.O. 1990 PCr.LJ 1717, after having found that the detenu was kept in unlawful custody by the Station House Officer of the police station some monetary payment was directed to be made to the detenu by way of costs. In each of the first two cases Rs,2,500 respectively were awarded as costs. In the case of Muhammad Ebrahim the Court directed the S.H.O. And the Sub-Inspector to pay Rs,2,000 each to the petition for violation of his fundamental right guaranteed by Article 9 (protection against unlawful deprivation of liberty) and Article 14 (inviolability of dignity of man) guaranteed by the Constitution. In the case of Muhammad Din v. District Magistrate 1992 MLD 107 special costs in the sum of Rs,3,000 were awarded personally against the District Magistrate, Narowal for passing an order of preventive detention without proper application of mind and in dereliction of duty contemplated by Article 5(2) of the Constitution. However, and we say so with great respect, that since these judgments do not contain any elaborate discussion on legal principles and the matter being one of substantial public importance we decided to examine the question whether monetary compensation could, and if so on what basis, be granted to a victim of unlawful or mala fide detention in proceedings like the present one in some detail. 11. Apart from a civil action in tort to recover compensation for unlawful detention or malicious prosecution, legal system has always recognized the concept of instant compensation to the victim without having to resort to separate legal proceedings. Sections 35-A and 95, C.P.C. Speak of compensatory costs for vexatious proceedings and compensation for expense or injury to the victim of arrest or attachment effected on insufficient grounds. Section 250 of the Cr.P.C. Enables a Magistrate to award compensation to the extent of Rs,25,000 to person charged on the basis of a false accusation upon his acquittal. Such compensation is in addition to and not in derogation of any civil or criminal liability which the wrong doer might have incurred. As a matter of fact even under the British Law upon which our legal system is based provided for instant compensation if a detention was found to be invalid under sections 4 and 5 of the Habeas Corpus Act, 1679 (Halsbury's Statutes of England, Third Edition Vol. VIII page 880). Under section 9 even a Judge unlawfully failing to issue a writ of habeas corpus was liable to pay L500 to a detenu. It is a different matter that such relief fell into disuse with the passage of time. Nevertheless, today this right to recover compensation is internationally recognised. Article 9(5) of the International Covenant on Civil and Political Rights 1966 reads as under "Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation". 12. The question that we are confronted with, however, is whether apart from the remedy that the detenu may have to collect damages through a Civil Suit or a direction that can be given for registration of criminal cases against .Police official responsible for his unlawful detention, whether
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any monetary compensation can be granted under the power available to this Court under section 491, Cr.P.C. Or Article 199 of the Constitution. The relevant provision of the Cr.P.C. Read as under:-- "S. 491.-- Power to issue directions of the nature of habeas corpus.-- (1) Any High Court may, whenever it thinks fit, direct-- 13. ' that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law; 14. ' that a person illegally or improperly detained in public or private custody within such limits be set at liberty; 15. 13. A perusal of the above statutory provision would show that the jurisdiction to pass certain specific kind of orders in respect of a person held in custody has been conferred upon this Court. Indeed under clause (b) the Court can pass an order directing that the detenu be set at liberty and similarly specific kind of orders can be passed under clauses (c) to (f) which follow. We are, therefore, inclined to take the view that only such orders could be passed which were authorised by any specific clause in the aforesaid section. However, it is arguable that clause (a) which enables the Court to direct that a person within the territorial jurisdiction of the Court be dealt in accordance with the law is wide enough to embrace a direction requiring payment of compensation if the law provides for such payment. Nevertheless since we have not been able to lay our hands on any reported precedent and have not had the benefit of adequate assistance from the Bar we would refrain from expressing any final opinion. 14. The jurisdiction of this Court under Article 199 of the Constitution, however, appears to be placed on a different pedestal. In this context it would be appropriate to discuss the above question in the context of the jurisdiction conferred by Article 199(1)(b)(i) (popularly known as the habeas corpus jurisdiction) and the jurisdiction to enforce fundamental rights conferred by clause (1)(c) of the same Article. Before discussing the contours of the respective jurisdiction conferred upon this Court by the aforesaid sub-clause (b) and (c) of sub-Article (1), it may be pertinent to reproduce the aforesaid Article which reads as under:-- Article 199.--- Jurisdiction of High Court.--- (1) Subject to the Constitution, a High Court may, if it is satisfied that no other adequate remedy is provided by law,-- (a) On the application of any aggrieved party, make an order-- (i) directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, or a Province or a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; or (ii) declaring that any act done or proceedings taken within the territorial jurisdiction of the Court by a person performing functions in connection with the affairs of the Federation, a Province or a local authority has been done or taken without lawful authority and is of no legal effect; or (b) on the application of any person, make an order: (i) directing that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner; or (ii) requiring a person within the territorial jurisdiction of the Court holding or purporting to hold a public office to show under what authority of law he claims to hold that office; or (c) on the application of any aggrieved person, make an order giving such directions to any person or authority, including any Government exercising any power or performing any function in, or in relation to, any territory within the jurisdiction of that Court as may be appropriate for the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II."
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15. We are indeed aware that presently the High Court of England, in the exercise of the prerogative power to issue writs in the nature of habeas corpus ad-subjudicidem only deals with questions relating to legality of present detention of a person in custody and does not pass orders beyond directing his immediate release. In Bernando v. Ford 892 AC 326 the House of Lords held that a writ of habeas corpus could only be issued when the detenu was actually in the custody of the respondent, and even if he had illegally parted with such custody no relief in such proceedings could be granted. Consequently in Keshadev v. Emperor AIR 1944 PC 24, an appeal against the decision of the High Court upholding an order of preventive detention under the Defence of India Act was dismissed and the Privy Council refused to determine the legality of the detention order as the detenu had been released before the appeal came up for hearing before the judicial committee. We are also aware that, an impression to the effect that a "Habeas Corpus" petition under Article 199 of the Constitution abates immediately upon the release of the detenu exists in the minds of quite a few of our lawyers and in many cases, counsel for the petitioners themselves do not press petitions as soon as the detenu is released from custody. It is often presumed that the traditional limitations imposed by British Courts upon themselves would per se apply to exercise of jurisdiction by our Courts under Article 199 of the Constitution. Nevertheless we have not been able to find any judgment of our Courts where, the propositions emerging from the above impression and presumption, have been, after proper discussion and analysis, found to be legally correct or justifiable. In fact the case-law seems to point towards the opposite direction. The well-known cases of Ghulam Jilani v. State PLD 1967 SC 373 and State v. Ziaur Rehman PLD 1973 SC 49 were decided after the detention had expired or there was no intention to retake the detenu's into custody. 16. In the first place, it may be kept in view that the practice of confining the scope of relief in habeas corpus proceedings to mere release of a prisoner is presumed upon certain peculiar feature of British Law. A writ in the nature of habeas corpus could be issued to the goaler, i,e, the person who had physical custody of the detenu. Traditionally the scope of enquiry in such matters was extremely limited and a return, showing a warrant or order from a competent Court or Police Officer directing his detention was a complete answer to a writ. The legality or bona fides of the order had to be adjudicated upon in other proceedings. With the passage of time the scope of enquiry expanded but it is not necessary to dwell on it here. The fact, however, remains that even where the detention was mala fide, in most cases the wrong doer would be the person who ordered the detention and not the goaler in whose custody the detenu was kept. The Crown could do no wrong and until the passage of the Crown Proceedings Act, 1947, was not liable for the tortious acts of its servants. Hence compensation for wrongful imprisonment could only be claimed personally from such officer and perforce separate proceedings were necessary. 17. However, in jurisdictions where these features do not exist, Courts, despite following the British legal system and despite having borrowed the terminology of prerogative writs have found it possible to grant such relief in habeas corpus proceedings. In this context it may be pertinent to refer to the following observations of Chandrachud, C.J. Of the Supreme Court of India in the well- known case of Rudul Sah v. State of Bihar (1983) 4 SCC 141 = AIR 1983 SC 1086:-- "But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32, this Court can pass an order for the payment of money if such art order is in the nature of compensation consequential upon the deprivation of a fundamental right. The instant case is illustrative of such cases. The petitioner was detained illegally in the prison for over 14 years after his acquittal in a full-dressed trial. He filed a habeas corpus petition in this Court for his release from illegal detention. He obtained that, our finding being that his detention in the prison after his acquittal was wholly unjustified. He contends that he is entitled to be compensated for his illegal
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detention and that we ought to pass an appropriate order for the payment of compensation in this habeas corpus petition itself. ' We cannot resist this argument. We see no effective answer to it save the stale and sterile objection that the petitioner may if so advised, file a suit to recover damages from the State Government. Happily, the State's Counsel has not raised that objection. The petitioner could have been relegated to the ordinary remedy of a suit of his claim to compensation was factually controversial, in the sense that a civil Court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for this illegal detention a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise amount which would be decreed in his favour. In the circumstances, the refusal of this Court to pass an order of compensation in favour of the petitioner will be doing mere lip service to his fundamental right to liberty which the State Government has so…
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