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Petitioner: Khatoon Bibi VS Respondent: The State etc
Court Name: Lahore High Court Judge(s): Ch. Abdul Aziz Title: Khatoon Bibi vs The State etc Case No.: Crl. Misc. No.2231-H of 2020 Date of Judgment:2020-05-21 Reported As: 2021 P Cr. L J 593, 2020 LHC 2463 Result: Petition disposed off
Judgment ORDER The instant petition moved under Section 491 of the Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr.P.C"), was aimed at obtaining direction for the recovery of Muhammad Zafar , Abid Hussain and Ghulam Akbar statedly unlawfully confined in Police Station Saddar Jampur , District Rajanpur . According to the grievance voiced in the petition, three detenus were picked up from their house by Station House Officer of Police Station Saddar Jampur and Akram Hajana Constable (respondents No.2 & 3) on 07.05.2020 at about 8:00 p.m; two days thereafter i.e. on 09.05.2020 respondents No.2 & 3 re-visited the house of detenus and took Muhammad Ashraf (son of petitioner) along with them, who later was released after the receipt of illegal gratification. Akram Hajana Constable (respondent No.3) was also saddled with the accusation of having taken away thirty goats of the petitioner as well. To be precise, the allegation of canvassed police excess was mainly pointed towards Akram Hajana Constable (respondent No.3) by burdening him with further accusation of badly maltreating the female inmates of the house at the time of making ingress therein. 2. The petition in hand was placed before this Court on 11.05.2020 and accordingly , for the redress of canvassed grievance, Sana Ullah (bailif f) was directe d to do the needful towards recovery and production of afore-mentioned three detenus in the Court. On 12.05.2020 the bailiff entered appearance in the Court and submitted a detailed report, the salient features of which are being set out hereunder:- (i) The bailiff visited Police Station Saddar Jampur on 11.05.2020 at about 6:00 p.m. and came across Station Clerk/Moharrar , namely , Muhammad Zahid 995/HC who upon a query stated that Daily Diary/Rozenamcha is not being maintained as a Register and all the requisite entries are incorporated in computer on the front desk. (ii) Three detenus were found incarcerat ed in the lock-up and they informed that though they were in the police station for the last four days but had not been produced in any court till then. They further stated to have been picked up from their house by Akram Hajana Constable (respondent No.3) and brought to police station along with
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thirty goats. The detenus also complained that Akram Hajana Constable besides abusing their women folk also gave them beating. (iii) Muhammad Zahid 995/HC (Station Clerk/Moharrar) put forth his stance before the bailiff that the detenus were nabbed in two theft cases registered vide FIR Nos.108/2020 & 109/2020 at Police Station Saddar Jampur . Even on the repeated demand of bailif f, the record of these cases was not placed before him. 3. Zubair Buzdar SI/SHO (respondent No.2) also appeared in the Court along with three detenus. In order to justify the captivity of all the three detenus, Zubair Buzdar SI came forward with the stance that they were arrested on 11.05.2020 in two criminal cases registered vide FIR No.108/2020 under Sections 380 & 411 PPC and FIR No.109/2020 under Sections 458,380 & 411 PPC of P.S. Saddar Jampur . He further added that the arrest of detenus was also incorporated in the computerized Daily Diary/Rozenamcha on 11.05.2020 at about 9:30 a.m. vide Entry/Rapatt No.5. The stance so put forth by the police was subjected to a meticulous scrutiny and it unveiled that both the cases were registered on 10.03.2020 for the cattle theft incidents having occurred three months before. FIR No.108/2020 was registered against Akhtar , Ayub and two unknown persons whereas FIR No.109/2020 was directed against a bunch of perpetrators comprising upon Akhtar , Jafar , Gulsher , Saleem and Muhammad Bakhsh. Needless to mention here that none of the detenu was nominated as accused in either of the two cases. On Court' s query , Zubair Buzdar SI (respondent No.2) stated that the detenus were implicated in the case through the supplementary statements made by the complainants of both the cases on 24.03.2020. It is noticed that in the supplementary statement of complainant recorded in FIR No.108/2020 only Ghulam Akbar (detenu) is nominated and that too solely on the basis of suspicion. So far as, FIR No.109/2020 is concerned the supplementary statement of its complainant though contains the names of all the three detenus but in a general manner , without even raising a suspicion about their involvement in theft occurrence. The supple mentary statements which were solely made basis for the arrest of deten us, upon scrutiny of record were found to be dubious and prepared for knitting a defence so as to frustrate the instant petition. The most important aspect noticed from record is the non- obtaining of any arrest warrant, which was essentially required keeping in view the afflux of time between supplementary statement and the date of arrest of detenus. Though initially a naive effort was made to defend these supplementary statements but when the SHO was apprised that their genuineness can be ascertained by summoning Registrar No.V (dispatch register) and the absence therein of corresponding entry of the relevant case diaries will entail serious consequences, he retreated from his stance and resorted to silence. 4. There is yet another factor perceptible from record, adversely reflecting upon the police working and gives traces of indifferent attitude of officials sitting in the supervisory jurisdiction. It was noticed that Daily Diary/Rozenamcha was not being maintained as a register and instead all the requisite entries were being made in a computer . A pressing need is felt to mention here that for the smooth police working and to maintain check and balance, approximately twenty five registers are maintained in police station in accordan ce with Chapter-XXII of Police Rules, 1934. Daily Diary/Rozenamcha is one out of these twenty five registers and referred as Register No.II in Rule 22.48 of Police Rules, 1934. The foregoing provision for reference sake is being reproduced hereunder:- "22.48. Register No.II: (1) The Daily Diary shall be maintained in accordance with Section 44 of the Polic e Act. It shall be in Form 22.48 (1) and shall be maintained by means of carbon copying process . There shall be two copies. One will remain in the police station register and the other shall be dispat ched to a gazetted officer to be designated by the Superintendent of Police or to the Superintendent of Police himself every day at the hour fixed in this behalf. Shortly before the case of each quarter , books containing the proper number of pages for then suing three months shall be issued to police stations by the Superintendent. The Superintendent shall fix the hours at which station diaries shall be daily closed with reference to the hour of dispatch of the post messenger . (2) The daily diary is intended to be complete record of all events which take place at the police station. It should, therefore, record not only the movement s and activities of all police officers, but also visits of outsiders, whether official or non-of ficial, coming or brought to the police station for any purpose whatsoever . (3) All entries in the station diary shall be made by the officer-in-charge of the police station or by the station clerk . Literate officers making a report shall read the report recorded append their signatures. Every matter
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recorded in such diary shall be so record ed as soon as possible; each separate entry shall be numbered and the hour at which it was made shall commence each such entry . If the hour at which the information, or otherwise, containing such entries reaches the police station differs from the hour at which such entry was made, both hours shall be stated. As soon as an entry has been made in the diary , a line shall be drawn across the page immediately below it. (4) The opening entry each day shall give the name of each person in custody , the offence of which he is accused, and the date and hour of his arrest, the name of each accuse d person at large on bail or recognizance and the date of his release on such security . The last entry each day shall show (a) the balance of cash in hand as shown in the cash account, and (b) the balance of the cattle-pound account". (emphasis provided by underlining portions relevant to the proposition) The language of above quoted Rule is explicit in its contents, hardly leaving any ambiguity as to how, in what manner , by whom and for what purpose Station Diary/Rozenamcha is to be maintained. A wade through the afore- quoted Rule unveils that the Daily Diary/Rozenamcha is to be maintained through a carbon copying process and one of its copy is to be forwarded to the Superintendent of Police at fixed hour of every day. Likewise, each entry in the Register of Daily Diary/Rozenamcha is to be made either by the Station Clerk/Moharrar or by the Station House Officer. For advantage sake, it is being mentioned that movements and activities of all officials posted in the police station along with the visits of outsiders are incumbently required to be incorporated in Daily Diary/Rozenamcha. Last but not the least, the opening entry of each day must give the name of every person in police custody , the detail of of fence with which he is charged along with date and hour of his arrest. Rule 22.49 elaborates further , the matters which are required to be entered in Daily Diary/Rozenamcha. It is noted that unfortunately the Daily Diary/Rozenamcha was not being maintained in Police Station Saddar Jampur in accordance with Rules 48 & 49 of Chapter XXII of Police Rules, 1934. All entries pertaining to Daily Diary/Rozenamcha were being entered on front desk in a computer but by a person not posted as Moharrar/Station Clerk. Similarly , the opening entry was also not being maintained in accordance with Rule 22.48(4) as nothing therein was mentioned about the detail of cases under investigation, names of officers assigned the task to probe these cases as well as the names of accused in custody . The Legislative importance of Daily Diary can be gathered from the very structure of 167 of Police Order , 2002, which on account of its relevancy with the subject in issue is being mentioned hereunder:- "167. Maintenance of Daily Diary at a police station . (1) A register of Daily Diary shall be maintained at every police station in such form as shall, from time to time be prescribed and to record therein the names of all complainants, persons arrested, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined. (2). The District and Sessions Judge of the District may call for and inspect such Diary". It will not be out of context to mention here that the delinquency to maintain Daily Diary in terms of Article 167 (ibid) entails consequences of initiation of proceedings under Article 155 of Police Order , 2002 and punishment of three years is provided therein. The downturn of police working, raising judicial concern, can further be gauged from the fact that in most of the police stations of the Province, the Daily Diary/Rozenamcha is not being maintained in consonance with the Police Order , 2002 and Police Rules, 1934, needless to mention due to insouciant attitude of police officials of supervisory jurisdiction. Very often, the Daily Diary/Rozenamcha is requisitioned by the Courts for extracting information therefrom for the just decision of cases but non-adherence to Police Rules, 1934 and Police Order , 2002 renders the entries made therein as unworthy of any credence. It is well embedded principle that if statute or rule framed therein provides a thing to be done in a particular manner it should be done in that manner alone. Such rule emanates from maxim "a communi observantia non est recedendum." I am constrained to observe that the non-maintenance of Daily Diary/Rozenamcha is aimed at suppressing the misdeeds committed in police stations. Such misdemeanor is one of the factors, which has destroyed the fabrics of Criminal Justice System. It is considered beneficial to observe here that in accordance with Section 61 of Cr.P.C, an accused is to be produced before a magistrate within twenty four hours of his arrest so as to get his physical remand in terms of Section 167
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Cr.P.C. In accordance with Section 167(2) Cr.P.C, a magistrate can authorize the detention of such an accused in police custody for a term not exceeding fifteen days in whole. It is commonly obser ved that in order to avail time in excess of section 167(2) Cr.P.C, the arrest of an accused is not shown and entered in Daily Diary/Rozenamcha. Such practice by police is deplorable as being violative of Articles 9 and 10 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter referred to as "the Constitution" ). It is found postulated in Article 9 that no person shall be deprived of life or liberty save in accordance with law. Similarly , Article 10 on one hand provides emphasis that every detained person must be informed about the grounds of his arrest and on other hand bestows to such person a right to consult a legal practitioner of his choice. Article 10 further makes it incumbent that every arrested person must be produced before a magistrate within twenty four hours of his arrest. The unlawful detention of an individual by the police leaves him incommunicado, depriving him of his fundamental rights guaranteed under Articles 9 and 10 of the Constitution, thus such practice must not be taken lightly by the courts. Any criminal investigation or other proceedings carried out in absolute disregard of some expressed provision of law can by no stretch be termed as within due process, thus is violative of Article 10-A of the Constitution as well. 5. It divulged from record that cases registered vide FIRs No.108/2020 & 109/2020 were being investigated by Allah Wasaya ASI who was on two days leave and the detenus were arrested by Muhammad Akhtar ASI on 11.05.2020 though he was not even assigned the task to deal with these case s. According to bailiff's report, departure of Muhammad Akhtar ASI for the arrest of detenus was not recorded even in the computerized Daily Diary . Likewise, despite repeated asking of bailiff, the police files of both the cases were not placed before him. In reply to the query raised by bailiff, the detenus informed that they are being unlawfully confined within the precincts of police station for the last four days and that too without getting any court order . As discussed above, no entry about the arrest of detenus was incorporated in Daily Diary in consonance with 22.48 of Police Rule, 1934. Last but not the least, though the projected incriminating supplementary statements were recorded on 24.03.2020, however till 11.05.2020 (date of alleged arrest) no arrest warrants were obtained by the police. All the factors mentioned above convincingly demonstrate that the victims were kept in police captivity unlawfully and improperly . While taking advantage of the case, it is being mentioned that bailiff is a court official and in habeas petitions visits police stations under authority of Court, thus his demand for examination of record and search of police station is to be met with acceptance. The refusal to meet with the requirements of bailiff, essential for executing the Court order , makes the delinquent police official vulnerable to initiation of contempt of court proceedings. I am also compelled to observe here that in comments submitted by SHO, it was admitted that twenty eight goats were taken into police possession under Section 550 Cr.P.C on 27.02.2020 vide Entry No.31 of even date incorporated in Station Diary . The goats, though according to police were impounded after being found abandoned by unknown persons but no corresponding entry was made in Registrar No.VII in accordance with 22.20 and 22.57 of Police Rules, 1934. 6. In the backdrop of peculiar facts of the case, I am persuaded to observe that the detenus, when produced in Court, were found in dilapidated condition and were giving look of sweating with poverty . From very appearance, the victims were appearing to be hailing from a marginalized segment of society , probably unaware of their fundamental rights assured under Article 14 of the Constitution which for reference sake is being mentioned hereunder:- "14. Inviolability of dignity of man, etc. (1) The dignity of man and, subject to law, the privacy of home, shall be inviolable. (2) No person shall be subjected to torture for the purpose of extracting evidence." Dignity of an individual, by the text of Article 14 of the Constitution, is secured and as a necessary consequence, every organ of the State is obliged to respect it. The Constitution is the most sacred legal document of a country and rights guaranteed to its subjects cannot be permitted to be encroached by the public functionaries/executives. Dogmatic approach of paying no respec t to the rights of marginalized stratum is paving way to retribution and resentment, oftenly forcing even a noble soul to opt for a criminal life. It goes without saying that dignity of a man is mutilated, when he is publicly or privately humiliated, degraded and ridiculed, more importantly due to his poverty and helplessness. Similarly , the dignity of an individual is traumatized when he is deprived of his liberty in violation of express provisions of law by a police officer. The protection of fundamental rights is not only the responsibility of
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judiciary but also obligation of public functionaries and executives as can be extracted from Article 5(2) of the Constitution. According to Michael J. Fox, one's dignity may be assaulted, vandalized and cruelly mocked but it can never be taken away unless it is surrendered. Borrowing wisdom from the referred quote, this is obligatory upon the Courts to let not even the poorest person of the country to surrender his dignity on account of personal disability to protect it. Living in modern technological era wherein all the countries on the globe are knitted with each other and the nations, valuing the dignity of their subjects earn more respect amongst others. We must not forget that Article 5 of Universal Declaration of Human Rights and Article 7 of the International Covenants of Civil and Political Rights focus on the point that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Likewise, the General Assembly adopted and opened for signatures and ratification, United Nation Convention against Torture (UNCA T) on 10th of December , 1984. The Conve ntion was signed by Pakistan on 17th of December , 2008 and further ratified it on 23rd of June, 2010. In Article 1 of UNCA T the term "torture" is defined, which can be summarized as pain or suffering inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity . Article 2 of UNCA T emphasizes that each State party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Similarly , Articles 10 & 11 of UNCA T lay emphasis upon inclusion in training of law enforcement personnel, the education and information regarding the prohibition against torture, during custody , interrogation, arrest, detention or imprisonment, etc. To be precise, it can inexorably be concluded from Article 14 of the Constitution and UN Conventions/covenants that insult, humiliation and torture suffered by an individual due to his unlawful detention by police is not ignorable and to cater such menace the Courts must come forward with pragmatic approach. 7. In the recent years, the police workin g has taken a nosedive, mainly on acco unt of non-adherence to Police Rules, 1934 and Police Order , 2002. According to Chapter-XX Rule 5 of Police Rules, 1934 every police station is essentially required to be inspected twice a year by a gazetted officer and at least once by the Superintendent of District. The details of such inspections are to be mentioned in Registrar No.XIII maintained under 22.64 of Police Rules, 1934. Unfortunately , even the mandatory requirement of police stations' inspection has become obsolete. Apparently , the raison d'etre behind these inspections is to ensure smooth working of police and to make sure that all af fairs in police stations are carried out in the manner prescribed by law . 8. In the wake of above discussion, the question of foremost importance arises that what are the parameters within which the fate of a petition under Section 491 Cr.P.C is to be decided and how a victim of unlawful detention is to be consoled. The answer to this query is found mentioned in Rules & Orders of the Lahore High Court Lahore, Volume-V , Chapter-4 Part-F and in certa in judicial precedents. For the sake of brevity , only the gist of Chapter-4 Part-F of the Rules is being mentioned which can be summarized as under:- (i) After the receipt of an application unde r Section 491 Cr.P.C, High Court has to form a prima facie opinion under Rule 2 about the truth of accusations embodied therein and an affirmative opinion is to be followed by the issuance of rule nisi. (ii) In appropriate cases, even search warrant under Rule 3 can also be issued. (iii) It is found mentioned in Rule 4 that the premises statedly being used for unlawfully confining an individual can be searched by the bailif f but having regard to Sections 43,75,77,79,82,83 & 84 of Cr .P.C. (iv) In accordance with Rules 7, 9 & 10, a person found detained in illegal or improper custody can be set at liberty with or without bail. On the contrary , if some legal cause is shown for the detention of a person, the rule nisi so issued by the court is to be discharged. While deciding the fate of a habeas petitio n, the High Court has to carefully scan the record so as to ascertain that the victim is deprived of his liberty in accordance with law or otherwise. For achiev ing this objective, the Court can examine the facts of case, information forming basis of detention and the counter defence put forth against such plea. The powers of High Court exercisable in the matters arising out of Section 491 Cr.P.C and Article 199(1)(b)(i) of the Constitution are highlighted by the Hon'ble Apex Court in case reported as Government of Sindh through The Chief Secretary , Karachi and 4 others v. Raeesa Farooq and 5 others (1994 SCMR 1283 ) and on account of its relevancy with the subject is being mentioned hereunder:-
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"The High Court is competent to examine and satisfy itself that the detenu is not being held in custody without lawful authority or in an unlawful manner . This can be achieved only when the Court examines the information, reasons, facts and causes leading to the detention." In another case reported as Abdul Baqi Baloch v. Government of Pakistan (PLD 1968 Supreme Court 313), the Hon'ble Supreme Court of Pakistan while dilating upon an issue of unlawful detention in reference to Article 98(2)(b) of the Constitution of 1962 observed as under:- "This Court has pointed out that whatever may have been the position under the English Law or the Government of India Act, 1935, the position under the present Constitution of Pakistan is wholly different, for, by Article 98(2) (b)(i) of the Constitution, a duty has been cast upon the High Court, whenever a person detained in custody in the Provinces is brought before that Court to 'satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner '. Can this Constitutional duty be discharged merely by saying that there is an order which says that he is being so detained? Can the High Courts be expected to be satisfi ed on the mere ipse dixit of the detaining authority? If this could be so, then this 'judicial power ' would as pointed out in that case, be 'reduced to a nullity if laws are so worded or interpreted that the executive authorities may make what statutory rules they please thereunder and may use this freedom to make themselves the final Judges of their own 'satisfaction', for imposing restraints on the enjoyment of the fundamental rights of citizens, and Article 2 of the Constitution itself would be 'rendered meaningless'. If the mere production of an order of a detaining authority , declaring that he was so satisfied, was to be held to be sufficient also to 'satisfy' the Court then what would be the function that the Court was expected to perform in the discharge of this duty ." If sufficient…
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