Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: NASRULLAH VS Respondent: S.H.O. SADDAR, P.S. JACOBABAD and 6 others
Court Name: Sindh High Court Judge(s): Salahuddin Panhwar Title: NASRULLAH vs S.H.O. SADDAR, P.S. JACOBABAD and 6 others Case No.:Const. Petition Nos.S-618 of 2012, S-65, 74, 79, 134, 164, 226, 284, 337, 697; 814,
834, 845, 932 and 1079 of 2015 Date of Judgment:2015-10-14 Reported As: PLD 2016 Sindh 238, PLJ 2016 Cr.C. (Karachi) 414 Result: Petitions disposed of Judgment ORDER ' Through this common order, I intend to dispose of the captioned petitions, wherein the petitioners are seeking arrest of absconding accused persons, nominated in the F.I.Rs, as well as arrest and production of proclaimed offenders before the trial Courts concerned. For the sake of brevity relevant facts are as under:-- 2. C.P. No, S-618 of 2012: Petitioner is seeking arrest of six proclaimed offenders in the case, arising out of F.I.R. Lodged by him, regarding murder of his father, contending that the case was challaned by Respondent No, 1 without arresting the accused persons nominated in the F.I.R; despite issuance of N.B.Ws by the learned trial Court, the SHO concerned had failed to arrest the accused due to ulterior motives, whereas the accused had allegedly occupied more than hundred jirebs of his land. 3. C. P. No, S-65 of 2015: Petitioner seeks arrest of four proclaimed offenders in the case registered by him in respect of murder of his son and injuries caused to his cousin Saifullah, who were not being arrested by the police despite coercive process in shape of N.B.Ws being issued by the trial Court. 4. C. P. No, S-74 of 2015: Petitioner is seeking directions to the SHO P.S Warrah for arrest of absconding accused in the case registered by him regarding murder of his son, contending that the police was reluctant to arrest the accused, though, many times, his whereabouts were pointed out by the petitioner.
---
## Page 2
5. C. P. No, 5-79 of 2015: Petitioner's case is that he lodged F.I.R. Regarding murder of his brother Nadir Ali; the SHO and I.O. Concerned having mixed up with accused party challaned the case on the basis of partial investigation, whereby only one of the nominated accused was sent up to face trial and remaining all were left unarrested, who were roaming about in the locality, thus, he seeks arrest of those proclaimed offenders. 6. C.P. No, S-134 of 2015: Petitioner has sought directions for arrest of nominated accused in the F.I.R. Lodged by him under Sections 324, 114, 337-H2, 148, 149, PPC, asserting that the accused being influential persons were not being arrested by the Respondents No, 1 and 2/police officials, and that the accused persons were extending him threats of murder. 7. C.P. No, S-164 of 2015: It is stated that Accused/ Respondents No, 4 to 6 committed theft by house trespass and also caused fire-arm injuries, for which petitioner lodged FIR and one of the nominated accused, namely, Roshan though was arrested, but the police after receiving huge bribe released him and challaned the case. It was further case of Petitioner that he was being threatened by the absconding accused to withdraw from the case, and the police officials were not taking any effort to arrest them. 8. C.P. No, S-226 of 2015: Perusal of petition reflects that petitioner and his relative were attacked upon by five accused persons, for which he approached the concerned police for registration of FIR, which was initially refused and then on payment of Rs, 30,000/- his F.I.R was recorded against four nominated accused and one unknown person, but the I.O. Had failed to make any progress in the investigation and none of the accused was arrested so far. 9. C.P. No, S-284 of 2015: It was claimed that petitioner lodged FIR in March, 2015 against five nominated accused persons, of whom accused Niaz though was arrested by the 1.0, but was not being produced before any Magistrate for remand and his arrest was also not being shown on record with mala fide intention and ulterior motives, whereas the rest of nominated accused were freely roaming. 10. C.P. No, S-337 of 2015: Petitioner in the instant petition is seeking investigation in the murder case of her brother Bakhtiar through a high rank police officer as well as arrest of accused/private respondents involved in such murder. 11. C.P. No, S-697 of 2015: The petitioner is seeking arrest of absconding accused Barkat Ali along with co-accused, who had allegedly abducted Mst. Ghinwa in a case registered under Section 365B, PPC by the petitioner; contending that the absconding accused were continuously extending threats of murder and pressurizing him to withdraw from the case. The police Officials/Respondents No, 1 and 2 despite his approaches were avoiding to arrest him. 12. C.P. No, S-814 of 2015: It is claimed that in 2013, petitioner lodged F.I.R against four nominated accused under Sections 489-F, 420, 406, 506, PPC; the challan whereof was submitted under Section 512, Cr.P.C. And in 2014 nominated accused Abdul Wahab was arrested, but being influential person police released him and illegally detained the petitioner, hence through instant petition, petitioner is seekiqg arrest of nominated accused. 13. C.P. No, S-834 of 2015: Petitioner's case is he lodged F.I.R against six nominated and three unknown accused persons for committing murder of his brother Riaz, in which two accused were arrested, while remaining being influential persons and supporters of Local MPA, were still at large. The official Respondents Nos. 1 and 2 instead of arresting the said absconders were harassing the petitioner, therefore, by filing instant petition, petitioner is seeking directions for arrest of absconding accused. 14. C.P. No, S-845 of 2014: It is pleaded that in the background of dispute over joint family property, petitioner's brother, namely, Akber Hussain committed a murderous assault thereby causing him (petitioner) fire-arm injury on his foot; he lodged FIR under Section 324, PPC; the I.O. Concerned without arresting the accused submitted challan; despite repeated N.B.Ws absconding accused
---
## Page 3
Akber Hussain, though available in his house, was not being arrested and he has been declared proclaimed offender. 15. C.P. No, S-932 of 2015: It is the case of petitioner that the relatives of her first husband having enraged on her contracting second marriage, after demise of her first husband, abducted her son Jabbar and daughter Mst. Shaheena and she after seeking orders from concerned Sessions Court had lodged FIR; that despite her approaches to DIGP, the concerned police without effecting recovery of her abducted son and daughter and without arresting the nominating accused have submitted challan; thus through instant petition, she is seeking arrest of absconders and recovery of abductees. 16. C.P. No, S-1079 of 2015: Petitioner lodged FIR under Sections 365-B, 452, 148, 149, PPC regarding abduction of her daughter, in which police initially arrested the accused persons but later-on released them on receiving huge bribe; report under Section 173, Cr.P.C. Was submitted without arrest of any accused or recovery of abdcutee; accused persons were compelling petitioner to withdraw from the case, hence she filed instant petition seeking directions for arrest of absconding accused and recovery of her daughter/abductee, besides protection against the harassm ent. 17. In compliance of order dated 05.10.2015, DIGP, Larkana has submitted report giving details of absconders and proclaimed offenders in Larkana Division; relevant Paragraph (No, 1) is as under: "That, in pursuance of directives contained in order dated 05.10.2015, passed by this honourable Court list of absconders in cases pending under adjudication and proclaimed offenders in cases kept on dormant file was called from 'Senior Superintendents of Police, all of Larkana Range, vide this office Letter No, Legal/DIGP/LRK/31847-53 dated 06.10.2015. They have submitted as under: Sr. #DistrictCases Pending Under AdjudicationCases Kept on Dormant fileNo, of AbscondersNo, of Proclaimed offendersDistrict wise No, of P.Os absconders 1 Larkana1077 933 6985 4186 11171 2 Kamber559 1017 7893 2315 10208 3 Shikarpur1917 1370 1382 19142 20524 4 Jacob- Abed777 681 2839 3010 5849 5 Kashmore1635 1132 5691 5824 11515 Range Total 5965 5133 24790 34477 59267
2 That, district wise lists in shape of booklets are submitted herewith for kind perusal. 3 That, any order passed by this Hon'ble Court will be implemented in letter & spirit." 18. Similarly, learned District and Sessions Judges as well as Special Judges of A.T.Cs have also furnished their respective reports in respect of number of proclaimed offenders and absconders in their respective district as under:- Sr. No,District Proclaimed offendersAbsconding Accused. Larkana 8515 2611 Kamber 4143 588 3 Shikarpur 11277 1028 4 Jacobabad 2839 3010 5 Kashmore 7093 2882
---
## Page 4
.ATC Kashmore@ Kandhkot411 44 ATC Larkana 383 19 ATC Shikarpur 376 118 Grant Total 35037 10,300 19. I have heard learned counsel appearing on behalf of petitioners, learned A.A.G, learned A.P.G, learned/Amicus Curie, as well as DIGP, Larkana Range at considerable length. 20. In reply to the Court query as to how they will cope with the alarming situation of there being 24790 absconding accused as well as 34477 proclaimed offenders, which comes to a total of 59267 (fifty-nine thousand, two hundred sixty seven), the DIGP, Larkana Range, contended that no doubt it is an alarming situation but they had taken concrete steps and comparatively this year than the last year they had brought down the crime rate; almost 14000 deployment of police personnel from the rank of police constable to S.P is there, out of whom 20% have no vehicles facility, 40% Police Stations are running without building and 80% police officials are without accommodation, therefore, they are facing trouble due to lack of such basic facilities; in order to cope with the above alarming situation, they are also utilizing electronic gadgets of advanced technology system for tracking the absconders and proclaimed offenders through mobile phones and special teams have also been constituted, in which every S.P is made responsible to bring down the number of proclaimed offenders and absconding accused and national action plan is going on; amongst the reasons of such huge number of P.Os and absconders; there are longstanding clashes between clans/tribes in Shikarpur and Jacobabad Districts, in which the police constables, mostly local residents of that area, are unable to do substantial job in order to avoid the likely consequences in view of bitter past experience and the police constable is a basic unit, therefore, they are facing problems and ic is very difficult to shift bulk of P.Cs from one district to another, as it would be very difficult to manage the things. 21. Mr. Asif Ali Abdul Razzak Soomro, counsel for the petitioner, contended that in our country the police force is having limited sources and training, hence there should be major part of law enforcing agencies to curb the situation. 22. Mr. Ali Nawaz Ghanghro, learned counsel for the petitioner, contended that in order to curb the situation, he would suggest to depoliticize the entire police department; any officer who is local resident may not be posted in his locality; criminal element in police department may be wiped out; police officers are living beyond their means, their accountability must be ensured; Government should provide all facilities equivalent to the Islamabad police and lack of professionalism/necessary, training is also crucial, they must be provided such training to the standard of armed forces. 23. Mr. Habibullah G. Ghouri, counsel for the petitioner, contended that timely action against the culprits should be taken before they turn into strong gang, which requires full-fledged war against them. 24. Mr. Rafique Ahmed K. Abro, Advocate for petitioner, suggested that detailed report from I.G.P. And P.G. Sindh may be called in respect of provision of funds, vehicles and fuel provided to the I.Os. 25. Mr. Athar Abbas Solangi, Advocate/Amicus Curiae, contended that there should be merciless operation against the culprits; police officers be given independent position to work without political influence to bring good fruitful result, because one man can bring good change as is done by some police officers in certain districts and the tendency of transferring honest police officers within months' time and leaving corrupt high rank police officers on the posting for years together should be changed.
---
## Page 5
26. Mr. Shamsuddin Abbasi, Advocate/Amicus Curiae, while referring Police Rules and relevant Sections of Criminal Procedure Code, contended that law provides mechanism to curb the crime and arrest the proclaimed offenders, but there is complete failure on the part of police, hence they may be directed to follow and comply with the police rules strictly. 27. Mr. Shahzado Saleem, Assistant Prosecutor General, contended that Investigating Officers, who have to perform field duty, are not being paid funds to conduct investigation properly; they have not been provided vehicles and fuel to go into field in search of culprits or conduct fair investigation; hence the I.Os being basic units of investigation department, without availability of such resources, would naturally perform paper work only and under the prevailing circumstances fair investigation cannot be expected from them. 28. The figure of absconder(s) and proclaimed offenders surfacing as a mountain of 59267/- bodies, which too in five districts) only, for all citizens and authorities is an alarming and shocking figure; presence and fearless movement of such huge number of absconders/proclaimed offenders even is an unseen threat to guaranteed fundamental rights of the citizens of such Districts. It is pertinent to mention that happening of offences in a society is quite natural, therefore, concept of active functioning of 'Law Enforcing Agency' is a mandatory element for a peaceful society. A proper mechanism for assuring dispensation of justice , if fails, shall result in collapsing the whole system even, however, before proceeding further, it would be proper to first refer the meaning of terms 'accused' and 'abscond' which per Black's Law Dictionary (Eighth Edition) are: 'ACCUSED' 1. A person who has been blamed for wrongdoing; esp. a person who has been arrested and brought before a magistrate or who has been formally charged with a crime (as by indictment or information). A person against whom legal proceedings have been initiated while the terni 'abscond' is defined as:-- 'ABSCOND' ....To depart secretly or suddenly, esp. To avoid arrest, prosecution, or service of process. 2. To leave a place, usu. Hurriedly, with another's money or property. ' From above definitions, it should not be confusing any more that per both terms there is a charge (allegation) against a person. The one who either appears or is brought to face the trial shall be tagged with status of 'accused' but one, who with active knowledge, avoids prosecution against him shall stand tagged with status of 'absconder'. In short, the main difference is that of 'to honour the process of law' or 'to avoid the process of law'. One who honours and respects the law cannot be made to stand in the row of those who intentionally choose otherwise, as far as privileges ensured by the Law itself are concerned, because the privileges/fruits shall be available to those only who acknowledge the existence of 'tree' (Society, State, as the case may be). At this particular point, a reference to meaning of term 'citizen' , being relevant to make viewpoint clear, needs to be referred, which per Black's Law Dictionary (Eighth Eidtion) is: 'CITIZEN' ' A person who, by either birth or naturalization, is a member of a political community, owning allegiance to the community and being entitled to enjoy all its civil rights and protections; a member of the civil state, entitled to all its privileges. 29. Thus, it can safely be said that a person, even if accused of an offence, shall continue to be a 'citizen', but the moment he chooses the act of 'abscondance', he ceases to be an abiding 'citizen' because Article-5(2) of the Constitution insists that: 'Article--5(2) . Obedience to the Constitution and law is the (inviolable) obligation of every citizen, wherever he may be and of every other person for the time being within Pakistan. ' Since, the issue involved is in respect of the 'absconder/proclaimed offender, therefore, to properly attend the issue, I would say that while examining the Criminal Procedure Code, Police Rules and other relevant law(s), it is manifest that law provides two mechanisms to compel an accused to
---
## Page 6
face the charge i.e, by appearing or bringing before the Court of law either by 'arrest' or 'compelling him/her to appear'. The former needs no interpretation or explanation but the latter is one wherein the law permits stepping over certain fundamental rights, as enshrined in Articles-15 to 20 and 23, for compelling one (absconder/proclaimed offender) to cause his appearance before the Court of Law or Authority concerned, which fundamental rights otherwise are guaranteed for every single citizen. 30. To strengthen such conclusion, it would be material and relevant to first have a sail through Chapter-XXIII of Police Rules, 1934, which insists surveillance over 'suspects', 'bad-characters', 'proclaimed offenders', deserters etc. As one of the means to prevent offences. Worth to add that title of Chapter-XXIII of Police Rules, 1934 is 'PREVENTION OF OFFENCES' though it only speaks about maintaining record of such persons; keep a watch over their movements; their modes of livelihood; properties and even their relatives. A brief reference to such Chapter, being helpful, is made hereunder:-- 23.1. Patrolling at rural stations.--(1). This casts a mandatory duty: (i) to pay special attention to villages where crime has occurred, or where registered bad characters and suspects whose history sbeets are on record live. (ii) to pay visit to every village occasionally for the purpose of adding to their local knowledge, becoming known to the people, collecting information, and checking the proper performance of their duties in relation to crime by zaildars, in a mkhors, lambardars and chaukidars. (iii) to collect information regarding the mode of live hood of bad characters; (iv) to obtain, mainly by personal visits and inquiry, so as to ascertain whether certain specified bad characters are present or not, and trace the whereabouts of proclaimed offenders of absconders. ' This means that officer-in-charge (SHO) should have such information by paying visits, inquiry and collecting information from headman (people) and since this Rule has been kept at the top of the Chapter, therefore, importance of such knowledge and information cannot be denied to be very effective for preventing offences and to take help from such information in the event of happening of an offence. Worth to add here that it is the conduct and attitude of one which makes him/her law-abiding or otherwise, hence officer in-charge of a police station must possess such information within available means and sources, as insisted by the said Rule. The person living beyond his means would constitute a suspicion permitting concerned Law Enforcing Agency to suspect such a person. Thus, if Law Enforcing Agencies succeed in establishing assurance of conduct an enquiry (having information) against those persons, it would surely limit the criminal activities, which otherwise was/ is the object of such rule. 31. Then comes the Rule 23.3 (Patrolling by villagers) -- the organization of thikri pahra and naka- bandi. This insists planning of organizing `thikri pahra' and `naka-bandi'. Since the object of this is to provide the best protection against criminals and securing that duties are allotted fairly and with little inconvenience to the individual as possible, which cannot be achieved if the planning thereof is not based on information collected and maintained under former rule, Rule 23.4. Surveillance Register No, X, is of much significance in curbing and prevention of the offences, therefore, same is referred hereunder:-- 23.4. Surveillance Register No, X.--(1) In every police station, other than those of the railway police, a Surveillance Register shall be maintained in form 23.4 (1). 2. In Part 1 of such register shall be entered the names of persons commonly resident within or commonly frequenting the local jurisdiction of the police station concerned, who belong to one or more of the following classes:-- (a) All persons who have been proclaimed under Section 87, Code of Criminal Procedure.
---
## Page 7
(b) All released convicts in regard to whom an order under Section 565, Criminal Procedure Code, has been made. (c) All convicts the execution of whose sentence is suspended in the whole, or any part of whose punishment has been remitted conditionally under Section 401, Criminal Procedure Code. (d) -All persons restricted under Rules of Government made under Section 16 of the Restriction of Habitual Offenders (Punjab) Act, 1981. 3. In Part II of such register may be entered at the discretion of the Superintendent-- (a) persons who have been convicted twice or more than twice, of offences mentioned in Rule 27.29; (b) persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not; (c) persons under security under Section 109 or 110, Code of Criminal Procedure; (d) convicts released before the expiration of their sentences under the prisons Act and Remission Rules without the imposition of any conditions. ' Note:--This rule must be strictly constructed, and entries must be confined to the names of person falling in the four classes named therein. 32. The opening rule i.e, 23.1 requires the officer-in-charge of police stations and assistant sub- inspectors to patrol in their jurisdiction freely for paying special attention to villages where crime has occurred, or where registered bad characters and suspects, having history sheets on record, live. This is with an object to collect information regarding the mode of livelihood of such persons. The person living beyond his means would constitute a suspicion permitting concerned Law Enforcing Agency to suspect such a person. Thus, if Law Enforcing Agencies succeed in establishing assurance of conduct an enquiry against such a person, it would surely limit the criminal activities of such a person which otherwise was/is the object of such rule. The subsequent rule insists sending head constables and constables with definite Orders to ascertain whether certain specified bad characters are present or not, and trace the whereabouts of proclaimed offenders or absconders. 33. The Surveillance Register though is a confidential document (register) but the importance and significance thereof cannot be denied or disputed because the prevention of offence(s) cannot be achieved without an effective surveillance. The word surveillance in itself is clear that it only brings one under watch without interference into his personal liberty or movements, as is evident from Rule 23.7, which reads as: 23.7 Mode of surveillance--(1) Police surveillance shall comprise such close watch over the movements of persons under surveillance by police officers village headmen and village watchmen, as may be practicable without any illegal interference. ' The purpose of history sheet is evident from Rule 23.8 (1), which says as: (1) The description of the criminal should be such as will enable the person reading it to form for himself a picture of the individual described, special attention being given to peculiarities of appearance, gait, speech, etc., by mean of which the man may be distinguished. ' The Rule also speaks publication of history sheet in the Criminal Intelligence Gazette and endorsement thereof to police station concerned with criminal's provincial numbers in red ink. The Rule further says that activities of all such criminals subsequent to the publication of their provincial history sheets must be communicated promptly to the Criminal Investigation Department through the District Central Investigating Agency. Duplicate of the sheets of criminal known or suspected to operate on the railway shall be supplied to the nearest railway police station and the originals of such sheets shall be endorsed with the letter 'It' in red ink. The District Police shall also supply the Railway Police Station with copies of all subsequent entries made in
---
## Page 8
such History Sheets, so that the Railway Police copies may be kept strictly up to date. The history sheets are to be kept at each police station (Rule 23.10) 34. Further, Rule 23.11 requires gazette officer on tour and Inspectors while checking history sheets of…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.