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Petitioner: NOOR MUHAMMAD VS Respondent: S.H.O., POLICE STATION KLUR KOT, DISTRICT BHAKKAR JUDGMENT
Court Name: Lahore High Court Judge(s): Ch. Muhammad Nasim Title:NOOR MUHAMMAD vs S.H.O., POLICE STATION KLUR KOT, DISTRICT BHAKKAR
JUDGMENT
Reported As: 2000 YLR 85 Result: Petition accepted Judgment JUDGMENT ' One Abdus Sattar is the son of Noor Muhammad writ petitioner. Abdus Sattar was involved in a murder case. After full-fledged hearing he was convicted and sentenced to life imprisonment. Abdus Sattar filed an appeal before the High Court whose sentence was suspended on statutory ground and he was admitted to bail. Abdus Sattar is said to have committed another murder who is required by the S.H.O. Police Station Klur Kot, District Bhakkar as an accused of this case. According to Noor Muhammad petitioner he got published a citation of disinheritment with respect to his son Abdus Sattar in Daily Nawa-i-Waqt, Lahore on 3-7-1997 and got himself disassociated with him and severed his relations thereof. According to him he and other family members have no concern with his son Abdus Sattar and his misdeeds. Noor Muhammad petitioner filed this writ petition on 4-2- 1998 against the S.H.O., Police Station Klur Kot, District Bhakkar, Deputy Superintendent of Police, Klur Kot Circle, District Bhakkar, Superintendent of Police, Bhakkar, Deputy Inspector-General of Police, Sargodha Range, Srgodha, Inspector-General of Police Punjab, Lahore (respondents Nos.1 to 5) wherein he voiced the grievance to the effect that in spite of the fact that he has no connection with his son Abdus Sattar about whose misdeeds he was not liable, the respondents-police were continuously bent upon terrorizing, disgracing and creating havoc upon him and his family which was violate of the Constitution 1973, the law of the land and against the law of civilized society as well as the teachings and preaching of Islam. According to the petitioner in violation of the Police Rules, 1934 he and his family members are called to the police station, kept in habeas and are tortured mentally who even are threatened to be murdered in fake police encounter which have
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become an order of the day. According to him they are disgraced publicly by making them sit in the police station and giving them, the shoe-beatings. He maintained that even according to sections 47 and 48 of the Criminal Procedure Code the procedure for the search of a place for the person sought to be arrested has been given and even for the breaking open of Zanana legal protection to the womenfolk involving the 'Chaddar and Chardewari' is provided' yet the house is trespassed and it has become a common practice with the police to enter forcibly and to repass the houses of the people and to torture the innocent inmates of the houses while the record of the police is always silent. The petitioner averred that he and his family members were facing the same miseries at the hands of the police which is supposed and designated to be a disciplined institution/force and which is not proceeding in accordance with law. He maintained that according to the Islamic Law as enunciated in the Holy Qur'an and Sunnah, the Constitution of the Islamic Republic of Pakistan, 1973 and statutory law no one can enter in the house of others without prior permission, no one can be murdered/assessinated without any reason and without the order of a Qazi; but the Police is always bent upon threatening to murder, in Police-staged encounters, the innocent family members of the accused and that the extrajudicial killings are on the increase. The petitioner referred to "Khutba-tul-Hajja-tulWida" wherein our Holy Prophet Muhammad (peace be upon him) very kindly expressed that "no one would be responsible for the crime of the other; the son will not be liable for father's crime and the father will not be punished for the crime committed by the son"; while the respondents were out to ignore and violate the aforesaid kind and illuminating words. He maintained that without a search warrant the police could not enter his house while using auto-ladder fitted in the police vehicle and to the disrespect and disgrace of the womenfolk in the house and other family members and that the police was violating the privacy of his home. He alleged that the police, Police Station Klur Kot arrested him on 13-9-1997 without any arrest warrant or without registration of a criminal case against him. He maintained that he was arrested from Pull-111, Sargodha from the gate of Market Mosque when he was going to offer his 'Maghrib' prayers and in this regard he referred to affidavits, fourteen in number of different persons, attached with this petition. He pleaded that he was taken to Police Station Klur Kot -on 14- 9-1997 and a case under section 216, Pakistan Penal Code was registered against him allegedly for harboring his aforesaid son Abdus Sattar. He denied the aforesaid fact on the ground that his son did not visit his house whom the refuge was never afforded by him. He maintained that he was admitted to bail but from 14-9-1997 onwards the police had raided his house illegally twenty times without any entry in the official record who abused and insulted him, his wife and his three young daughters. He maintained that the police has no authority to trespass his house at any time and at its discretion being against Shariah, teachings of the Holy Prophet and the law of the land as he and his family members are not responsible for the acts and misdeeds of his son Abdus Sattar. He alleged that two days before the Eid-ul-Fitr he was taken to Police Station Klur Kot by local police wherefrom he was released later on after receiving the illicit gratification and that due to highhandedness of the police he was not in the position to effect the 'Rukhsati' of his daughter whose marriage was scheduled to take place on 25-2-1998. 2. With the aforesaid background Noor Muhammad writ petitioner prayed that the respondent- police may be directed to act in accordance with law, not to harass him and his family members by launching illegal raids through trespassing his house, making their movements limited by making them to sit in the Police Station, to humiliate them and to penalize them by effecting interference in their privacy or to injure their dignity in any manner whatsoever for the alleged misdeeds of his son Abdus Sattar for which he and his family members are not responsible. 3. In the circumstances of the matter I called for the comments from the Superintendent of Police, Bhakkar as well as the Inspector-General of Police, Punjab, Lahore. I particularly mentioned in the relevant order that the comments to be prepared by the Inspector-General of Police Punjab,
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Lahore shall be gone through by him and shall be signed by him. I had to pass the order because the aforesaid type of working of the Punjab Police is being brought to the notice of the Lahore High Court, Lahore in large number of cases wherein the nears and dears as well as the other relatives, acquaintances of the fugitive from law generally complain about their involvement in false cases thereof and showing disgrace, disrespect to them as well as causing of harassment and torture with threats of killings without legal and factual justification. 4. Mr. Jehanzeb Barki, Inspector-General of Police, Punjab, Lahore sent the comments signed and obviously read by him wherein it is contained that Abdus Sattar son of Noor Muhammad writ petitioner is a proclaimed absconder and that Noor Muhammad was arrested on account of harbouring his 'absconding son. He assured that no harassment shall be extended to Noor Muhammad petitioner against whom a case under section 216, Pakistan Penal Code has been registered which is pending before the Area Magistrate. The Superintendent of Police, Bhakkar as well as the S.H.O., Police Station Klur Kot, District Bhakkar submitted their separate comments/report wherein they took up the stand that Abdul Sattar son of Noor Muhammad was a fugitive from law who is involved in a murder case registered at Police Station Klur Kot. They expressed therein that the information was imparted by Ahmad Nawaz complainant of murder case of F.I.R. No, 150 registered on 18-6-1997 under section 302, Pakistan Penal Code at Police Station Klur Kot that Noor Muhammad (writ petitioner) and his son Abdus Sattar (absconder) were found sitting together and taking meals at Chah Gulbazvala within the area of Police Station Klur Kot and that on its basis F.I.R. No, 216, dated 14-9-1997 was registered under section 216, Pakistan Penal Code at Police Station Kalur Kot against Noor Muhammad writ petitioner. According to the said respondents- Police officers thereafter the raid was conducted at the place the writ petitioner harboured his son which remained futile and that the petitioner was arrested from "Chandni Chowk" M.M. Road on 16- 9-1997 who was found guilty and challaned to face the trial under section 216, Pakistan Penal Code. The causing of harassm ent to petitioner and his family members was denied. However the undertaking was given that no illegal activity shall be extended in future to the petitioner and his family members. It was asserted that the writ petition was filed without legal or factual justification. 5. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General and gone through the record before me. Learned counsel for the petitioner laid the emphasis that the petitioner and his family members are not liable for the misdeeds of his son Abdus Sattar who has become a fugitive from law and whom he has disinherited through the publication of Notice, dated 3-7-1997 in daily Nawa-iWaqat Lahore. He added that for the crime allegedly committed by his said son the police cannot degrade, insult and humiliate other relatives by calling them to police station and disgracing them by adopting third degree methods. He continued that threats for murder in false police encounter were, made to the petitioner, his wife and daughters whereby they had lost the confidence and were panic striken who at present luckily are alive without any damage. According to him the police has coined the method of extrajudicial killings whereby the accused and their relatives are being killed/eliminated without resort to judicial process whereby even after death penalty awarded by the Court of competent jurisdiction the appeals are maintainable before the High Court and Supreme Court and that the false police encounters have no blessings from the religious commands and the law of the land which are rather negation of rule of law provided by the Constitution, 1973 and statutory law. He maintained that the police registered F.I.R. No, 216, dated 14-9-1997 under section 216 Pakistan Penal Code on the information of the complainant of the murder case that petitioner's son Abdus Sattar was seen having meals with him at Chah Gulbazvala, which was simply false, while the police itself did not take any step for the arrest of the absconder accused and that if the aforesaid type of information/allegation is given the weight then one or more cases can be registered daily against the petitioner and other family members on the information of the complainant of the murder case
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which would be naked source of harassment and disgrace. According to him registration of F.I.R. No, 216 was the outcome of mala fides and such a free hand may not be allowed to the police. On the contrary learned Assistant Advocate General argued that Noor Muhammad writ petitioner is the accused of Crime Case No, 216 registered on 14-9-1997 under section 216, Pakistan Penal Code and the Police had the authority to proceed in the matter as he harboured and concealed his son Abdus Sattar, a proclaimed offender. He expressed that the denial of the police about the unnecessary harassm ent may be considered enough and Noor Muhammad was rightly arrested. He referred to the undertaking of the police to the effect that the writ petitioner and his family shall not be harassed. He added that there was no occasion to murder the petitioner and his family members and the apprehension is simply irrelevant. He maintained that a case under section 216, Pakistan Penal Code can be got registered by a person from the public, if the information is imparted to the police that any person has harbored or concealed any fugitive from law. My view is that the reasoning adopted by the learned counsel for the petitioner has to prevail. Generally cases under section 216, Pakistan Penal Code are registered, but the absconder accused is not arrested. The police would show that the absconder accused made good his escape in the presence of the contingent of police which is enough to falsify this type of allegation. Rather it casts lurking suspicion on the working of the police as it is not possible that an absconder accused would run away in the presence of the police officials especially when there is no encounter. This type of allegation or the one expressed by the respondent-police in the comments about the imparting of information by the complainant of the murder case that absconder accused was seen taking his meals with his father is adopted to justify the police to involve the relatives of the absconder accused to put the pressure upon him to surrender as the third degree methods are adopted and employed on the nears and dears in this regard. The framers of law (i,e, section 216) made the same boilable and obviously the wisdom behind is to restrain the police from working in an autocratic manner as the accused can be admitted to bail by the police and if produced before the Court, by it immediately as of right of the accused as contemplated under section 496 of the Code of Criminal Procedure. It shall have also to be analyzed as to whether taking of meals at Chah Gulbazwala by the absconder accused with his father (writ petitioner) allegedly seen by the complainant of the murder case comes within the purview of the words harbour or conceal as used in section 216, Pakistan Penal Code. The dictionary meanings of the word "conceal" are: keep secret, to hide completely or carefully, act or state of hiding. The dictionary meanings of word harbour are: place of safety, or refuge or shelter, asylum. It is not narrated in the comments/report submitted by the respondents (police) that in whose house the absconder accused was having the meals at Chah Gulbazwala. It is a matter of common knowledge that on one named Chah there are many houses of one Abadi. It cannot be expected that Abdus Sattar being absconder accused would be provided meals openly by his father about whom he has got published a notice of disinheritment in daily Nawa-i-Waqat, Lahore on 3-7-1997 while this writ petition was filed on 4- 2-1998. Further there being no specification of the house in the comments/report wherein the meals were taken by Abdus Sattar absconder in the company of his father Noor Muhammad writ petitioner, the allegation of harbouring and concealment can well be termed to be anomalous and prima facie without substance. Thus it can be expressed that the aforesaid type of allegation made by the complainant of the murder case does not come within the ambit of the words harbour or conceal used in section 216, Pakistan Penal Code. The S.H.O., Police Station Kalur Kot, District Bhakkar seems to have proceeded in routine for wrongful gain to put the pressure on Abdus Sattar absconding accused for his surrender as the petitioner and other female members of the family shall be humiliated and disgraced. 6. The only irresistible conclusion which can be drawn from the aforesaid state of affairs and discussion would be that the contention of the writ petitioner is correct that all has been done to
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harass him and other family members to put the pressure for the surrender of the absconding accused Abdus Sattar. In this regard the taking of the petitioner and his family members to Police Station Klur Kot and adopting third degree methods cannot be ruled out. Consequently the respondents are restrained from harassing and insulting the petitioner and his family members in any manner with respect to the offences/misdeeds committed by Abdus Sattar absconder. 7. In the circumstances it is proper to examine case F.I.R. No, 216 registered on 14-9-1997 under section 216, Pakistan Penal Code at Police Station Klur Kot, District Bhakkar. The Judicial File and Police File shall be requisitioned from the concerned quarters regarding which the separate order has been passed for compliance by the office. 8. It is important to note that the learned counsel for Noor Muhammad writ petitioner canvassed that such type of allegations/assertions are being raised/made by the public against the police in different matters and it is in the fitness of the things that some authoritative view is enunciated by this Court. I agree with him. I feel that it is a Matter wherein complete analysis, appreciation and dissection is made because the same would be a source of protection and convenience for the citizens being that of public interest litigation. It is a common complaint these days that without any hesitation, without legal justification and just in routine the police has made it a practice to enter the houses of the citizens and in suchlike cases the family of the absconder accused is vexed and taxed by making entry in the house without permission under the garb that the absconding accused is present there. Even the females are insulted by putting different questions to them. Practically the family members viz. Children, old or young, males or females, married or unmarried etc. Are called at the police station who are made to sit there in a disgraceful manner upon whom the insult is showered by different third degree methods who are also administered shoe-beatings publicly and in the police station. Even the threats of murder in fake police encounter are issued and rather the accused or his relatives are also eliminated in staged encounters also termed/known as State Justices Method. Muss fuss emanates amongst the citizens against such type of working of the police which is creating big gulf between the public and the police which is not a happy sign towards the maintenance of positive texture of the society being against discipline whereby the respect of the UNIFORM of the Police Department is diminishing and decreasing which fact is also proving to be a conspicuous cause for the worsening of the law and order situation. Further the damage to the image and prestige of the Police Department done in this manner becomes incalculable. I would express the view that the litigation of every type including the one in hand is not the luxurious hobby of the citizens wherein sufficient fee is paid to the learned advocate(s) and the amount has to be spent on the preparation of the brief or making the journey etc. Etc. It is only and only at the time when the shoe pinches the wearer that such type of writs are filed. Without prejudice it can safely be expressed that the nefarious acts/misdeeds of a disobedient member of a family should not be a source of inconvenience, harassment and insult to the other family members and that also at the hands of the Disciplined Force of Police. _ 9. Justice in one sense or the other lies at the foundation of every human society, however, inore or less civilized it may be. Justice has not to be provided by the Courts only. The scale of justice has also to be kept in the correct manner by all the pillars and Departments of the State. In" the criminal administration the correct and fair investigation is the foundation of justice. If any Department does not act in accordance with law and plays the part in the negative manner, the Judiciary has to play the important role in the Constitutional jurisdiction. Islam signalized a momentous development in the affairs of mankind. Clashes of interests lead to actions that disturb the social balance. To bring the society back into a state of equilibrium, some sort of machinery has to be evolved for administration of justice which primarily aims at maintaining a balance between the rights of individuals or groups. Obviously the Judiciary has to play its role at such a juncture. With this background I have thought it proper to tackle the dispute in hand and to give my
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findings keeping in view the religious commands, moral values as well as the Constitutional and statutory safeguards provided to the citizens of Pakistan. 10. I feel that it is matter wherein complete analysis, appreciation and dissection of the matter is made because the same would be source of protection and convenience to the petitioner and the general public/citizens. This judgment shall also project as to how the idea of good governance was ignored, violated and shattered before or after the institution of this writ petition during the month of February, 1998. It is the proper stage to express that good governance can materialize, if there is respect for the law of the land. 11. The separate homeland----Pakistan--was desired and achieved by the Muslim with the background of Islamic Ideology through multifarious sacrifices of migration, life, honor, economy etc. According to Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973 "Islam shall be the State religion of Pakistan." Article 2-A of the Constitution, 1973 provides that the principles and provisions set out in the Objectives Resolution reproduced in the Annexure have been made the substantive part of the Constitution and shall have effect accordingly. The Objectives Resolution was inserted by Presidential Order No,14 of 1985. The aforesaid Annexure (Article 2-A) is being reproduced in toto as under for the emergence of the true picture:--- "CONSTITUTION OF PAKISTAN ANNEX (ARTICLE 2-A) The Objectives Resolution (In the name of Allah, the most Beneficient, the most Merciful.) ' Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan; ' Wherein the State shall exercise its powers and authority through the chosen representative of the people; ' Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; ' Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah; ' Wherein adequate provision shall be made for the minorities to profess and practise their religious and develop their cultures; Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; ' Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; ' Wherein adequate provision shall be made to safeguard the legitimate interest of minorities and backward and depressed classes; ' Wherein the independence of the Judiciary shall be fully secured; ' Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;
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' So that the people of Pakistan may prosper and attain their rightful and honoured place amongst the nations of the world and make their full contribution towards International peace and progress and happiness of humanity." 12. Our beloved country---PAKISTAN-is an Islamic State and not a secular State. Islam is the State Religion of Pakistan in view of Article 2 of the Constitution of the Islamic Republic of Pakistan under Article 31 of the Constitution, steps shall be taken to enable the Muslims of Pakistan individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam and to provide facilities whereby they may be enabled to understand the meaning of life according to Holy Qur'an and Sunnah. Further State shall endeavour, as respects the Muslims of Pakistan to make the teachings of Holy Qur'an and Islamyiat compulsory, to promote unity and the observance of the Islamic moral Standards to secure the proper organization of Zakat, Ushr, Auqaf and mosques. Under Article 40 the State shall endeavour to preserve and strengthen…
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