Form No. HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT
MULTAN BENCH MULTAN
(JUDICIAL DEPARTMENT)
Crl.Misc.No.2231-H of 2020
Khatoon Bibi Vs. The State etc.
Sr. No. of order
of proceeding
Date of order
of proceeding
Order with signature of Judge, and that of Parties of counsel, where
necessary
21.05.2020 Ch. Muhammad Akram, Advocate/vice counsel for the petitioner.
Mr. Shahid Aleem, Deputy Prosecutor General with Muhammad
Bilal, Deputy Director Anti-Corruption, D.G. Khan, Zubair Buzdar
SI/SHO, Muhammad Akram Constable and Sana Ullah Bailiff.
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 revisited 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
(bailiff) was directed to do the needful towards recovery and production
of afore-mentioned three detenus in the Court. On 12.05.2020 the bailiff
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(Khatoon Bibi v. The State etc.)
entered appearance in the Court and submitted a detailed report, the
salient features of which are being set out hereunder:(i)
(ii)
(iii)
3.
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.
Three detenus were found incarcerated 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
thirty goats. The detenus also complained that Akram Hajana
Constable besides abusing their women folk also gave them beating.
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 bailiff, the record of
these cases was not placed before him.
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
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Crl.Misc.No.2231-H of 2020
(Khatoon Bibi v. The State etc.)
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 supplementary statements which were solely made basis
for the arrest of detenus, 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 nonobtaining 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 accordance 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 Police 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 dispatched to a gazetted officer to be designated by the
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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
movements and activities of all police officers, but also visits of outsiders,
whether official or non-official, coming or brought to the police station for
any purpose whatsoever.
(3) All entries in the station diary shall be made by the officer-incharge of the police station or by the station clerk. Literate officers
making a report shall read the report recorded append their signatures. Every
matter recorded in such diary shall be so recorded 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 accused 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
offence with which he is charged along with date and hour of his arrest.
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(Khatoon Bibi v. The State etc.)
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 nonadherence to Police Rules, 1934 and Police Order, 2002 renders the
entries made therein as unworthy of any credence. It is well embedded
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Crl.Misc.No.2231-H of 2020
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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 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 observed 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
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Crl.Misc.No.2231-H of 2020
(Khatoon Bibi v. The State etc.)
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 cases. 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
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Crl.Misc.No.2231-H of 2020
(Khatoon Bibi v. The State etc.)
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 respect 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 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
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Crl.Misc.No.2231-H of 2020
(Khatoon Bibi v. The State etc.)
Assembly adopted and opened for signatures and ratification, United
Nation Convention against Torture (UNCAT) on 10th of December,
1984. The Convention was signed by Pakistan on 17th of December,
2008 and further ratified it on 23rd of June, 2010. In Article 1 of UNCAT
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 UNCAT 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 UNCAT 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 working has taken a nosedive,
mainly on account 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 affairs 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
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Crl.Misc.No.2231-H of 2020
(Khatoon Bibi v. The State etc.)
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 certain 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)
(ii)
(iii)
(iv)
After the receipt of an application under 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.
In appropriate cases, even search warrant under Rule 3 can also be
issued.
It is found mentioned in Rule 4 that the premises statedly being used
for unlawfully confining an individual can be searched by the bailiff
but having regard to Sections 43,75,77,79,82,83 & 84 of Cr.P.C.
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 petition, 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 achieving 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:“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:-
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Crl.Misc.No.2231-H of 2020
(Khatoon Bibi v. The State etc.)
“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 satisfied 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 material is discernible from the facts and record of the
case that an individual is kept in captivity unlawfully by a police official,
the Courts have to come forward with a pragmatic approach for the
protection of fundamental rights guaranteed under Articles 9,10 & 14 of
the
Constitution
and
must
not
hesitate
in
awarding
even
cost/compensation to the victim. Needless to mention here that such
amount is to be paid by none other than the delinquent police officials.
Even, in appropriate cases, Court may pass an order for registration of
criminal case as well as initiation of departmental proceedings against
the delinquents. Even otherwise, how a public functionary can be let off
so as to go scot-free when he is found to have infringed the right of an
ordinary individual, guaranteed to him under the Constitution. I am
afraid to observe that such an approach would render the provisions
embodied in Articles 9,10 & 14 of the Constitution as nullity. The
Courts are saviors of the fundamental rights granted to the subjects of a
State and must guard them enviously. At this juncture, I am leaned to
refer an observation of the Hon’ble Supreme Court of Sri Lanka
expressed in the case of A.K.Velmurugo v. Attorney General and
another decided in 1981 and reported in the Compendium Decisions
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(Khatoon Bibi v. The State etc.)
on Fundamental Rights Cases at Page-180, which for reference sake is
being quoted here:“The essence of a fundamental right lies in its enforceability against
the organs of the State. The freedoms and rights enshrined in Chapter
III of the Constitution are, but amply formulation if they may be
infringed upon with impunity without incurring any sanction… under
the Constitution of Supreme Court is the Court charged with the duty
of safeguarding the fundamental right and liberties of the people by
the grant of speedy and efficacious remedy under Article 126 of the
Constitution for the enforcement of such rights.”
Similarly, the observation of an Hon’ble Division Bench of Sindh
High Court given in a case reported as Mazharuddin v. The State (1998
PCrLJ 1035) on account of its relevancy on the subject is being
mentioned hereunder:“In addition to payment by way of substantial relief we are also of the
opinion that when a person unlawfully deprived of liberty has to
approach the Court for relief and the Court finds his detention to be
mala fide and unlawful he is entitled to costs. Depending on
circumstances, of each case such costs could be (i) actual (ii)
Compensatory (iii) Penal or deterrent.”
9.
This Court is not oblivious of the fact that countless police
personnel have laid their lives while fighting against the miscreants, in
an endeavour to uphold the law and order in the country, thus we must
acknowledge their sacrifices by paying them respect. At the same time, it
is noticed that cases of police excess are on the rise, and so is the horror
of usurping liberties of individuals through menace of unlawful
detention. Such trend of police excess is required to be chained so as to
guard the rights of citizens guaranteed under Articles 9, 10 & 14 of the
Constitution. This objective can best be achieved by awarding
compensation to the victims so as to be paid by the delinquent officials.
Such compensation on one hand is destined to set right the police
officials having tendency to act beyond prescribed spheres of law and on
other hand is aimed at restoring the dignity of victims, protecting their
fundamental rights and restoring confidence in legal system. A peep
through the judicial archives reveals that even in the past, the Courts in
our country have been awarding compensation to the sufferers. In this
respect, reference can be made to a chain of case laws like Rana
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Crl.Misc.No.2231-H of 2020
(Khatoon Bibi v. The State etc.)
Muhammad Aslam v. Azmat Bashir and others (2011 SCMR 1420), Ali
Ahmed v. Muhammad Yakoob Almani, Deputy Superintendent of Police,
Qasimabad, Hyderabad and 5 others (PLD 1999 Karachi 134), Abdul
Majid v. S.H.O., Police Station Rohilanwali District Muzaffargarh
(1995 PCr.LJ 1209), Shahid Hussain v.The State and others (1997
PCr.LJ 1582), Muhammad Manzoor v. S.H.O., Police Station Layya,
District Multan and another (1997 MLD 1331), Haji Noor Hassan v.
Khalid Masood, Inspector/S.H.O., Police Station “B” Division, Rahim
Yar Khan (1998 PCr.LJ 1451) and Naseer Ahmad v.S.H.O., Police
Station Tirandah Muhammad Panah, District Rahim Yar Khan (1998
PCr.LJ 196).
Since this Court has already arrived at an irresistible conclusion
that the detenus fell prey to police excess of unlawful detention,
attributable to Zubair Buzdar SI and Akram Hajana Constable
(respondents No.2 & 3), thus deserve award of compensation to be paid
by both the offending police officials. As a necessary corollary, Zubair
Buzdar SI/SHO is directed to pay Rs.20,000/- to the detenus as
compensation. So far as, Akram Hajana Constable is concerned,
highhandedness pointed to him by the detenus is on much higher
pedestal as he not only made unlawful ingress in the house of the victims
but also maltreated the female inmates. Besides this point, he not only
caused embarrassment to all the officials of concerned police station but
also disgraced the martyrs of police department. In these circumstances,
Akram Hajana Constable is burdened to pay Rs.40,000/- to the detenus
as compensation. Keeping in view the fact that Zubair Buzdar SI is
young and well educated officer, the amount of compensation
determined to his extent is kept on lesser side. During arguments it
unveiled that Muhammad Akram Constable (respondent No.3) joined
police department in the year 1992-93 and since then is posted in District
Rajanpur. Coming from nowhere, Muhammad Akram Hajana Constable
stated during arguments that he is a man of means and not only is
possessing a Toyota Hilux Vigo but is also frequent traveler of foreign
destinations. It was also brought to the notice of this Court that Akram
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(Khatoon Bibi v. The State etc.)
Hajana Constable (respondent No.3) always carries with him 3/4 persons
and while admitting this fact he put forth a justification that it is being so
done as protective measures due to his ongoing enmities. The tenure of
posting of respondent No.3 in Rajanpur comprising upon more than two
decades with a chequered service record is self-speaking about the
indifferent attitude of police officials sitting in supervisory jurisdiction.
During arguments, it was pointed out that even previously Akram
Hajana has been guilty of police excess. To be precise, Muhammad Bilal
Deputy Director Anti-Corruption, D.G. Khan who appeared on Court’s
call, was directed to probe the assets of Muhammad Akram Constable
and if found beyond known source of his income then to proceed against
him. Likewise, the DPO concerned is also directed to move the case of
Muhammad Akram Constable so that he be posted to a place other than
Multan Division. He is further directed to ensure that for at least next
two years Akram Hajana Constable shall not be posted at a place where
he is likely to interact with general public. So far as, the detenus are
concerned, since an opinion affirmative to their plea of unlawful
detention is formed, hence they are set at liberty. I have intentionally
withheld the securing of bonds from the detenus as their arrest was
found patently illegal and without any convincingly incriminating
substance. However, if in future, some incriminating material based on
reasonable suspicion along with credible information about their
involvement in the instant cases comes on record, the police will be at
liberty to proceed against them but strictly within the sphere of law.
Regarding claim of petitioner to the extent of impounding of thirty goats
by the police, since its genuineness cannot be determined during instant
habeas proceedings, she is directed to approach DPO, Rajanpur through
an application, who will look into the matter for an appropriate action, if
need be.
10.
On a departing note, office is directed to transmit copy of this
order to Inspector General of Police, Punjab so as to ensure that:(i)
Station Diaries in all Police Stations be maintained in
accordance with 22.48 of Police Rules, 1934 and Article 167
of Police Order, 2002.
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(Khatoon Bibi v. The State etc.)
(ii)
(iii)
(iv)
11.
in accordance with Article 10 of the Constitution, grounds of
arrest must be provided to every accused immediately after
taking him in police custody.
inspections of all police stations be conducted in terms of
Chapter-XX Rule 5 of Police Rules, 1934.
appropriate steps be taken for educating the police personnel
in the Province in accordance with Articles 10 & 11 of
UNCAT regarding torture during custody, interrogation,
arrest, detention or imprisonment etc.
In the above terms, the instant petition stands disposed of.
(CH.ABDUL AZIZ)
JUDGE
APPROVED FOR REPORTING
(CH.ABDUL AZIZ)
JUDGE
Najum*