PLJ 2024 Cr.C. 964 (DB)
[Lahore High Court, Lahore]
Present:
Asjad Javaid Ghural, J.
Mst. NAJMA
BIBI--Petitioner
versus
S.H.O.,
etc.--Respondents
Crl.
Misc. No. 27821-H of 2024, decided on 13.5.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 491/497
& 561-A--Illegal detention--liberty--Judicial custody--post arrest
bail--Release--Departmental proceedings--Court directed respondent No.1/SHO, to
produce alleged detenue in Court--SHO instead of producing detenue, submitted a
report that alleged detenue was required in FIR No.754/24 and has been sent to
judicial lock up--Complainant in his supplementary statement, involved alleged
detenue in occurrence--If co-accused made disclosure qua involvement of detenue
in occurrence then there should not be any need for supplementary statement--he
has failed to produce police record, which contained case
diaries--Supplementary statement of complainant was recorded after twenty days
of alleged occurrence--Petitioner has knocked door of High Court complaining
illegal and unlawful confinement of alleged detenue--The alleged occurrence has
taken place in Tehsil Daska, District Sialkot and there is a complete silence
in statement of complainant, how she could point out her house for purpose of
robbery, in particular, when she was earlier stranger to her--The alleged
recovery was shown to be effected from hand bag of alleged detenue after almost
1˝ months and it is beyond comprehension that an accused of robbery kept case
property in her hand bag for such a long period--High Court while exercising
its jurisdiction under Section 561-A Cr.P.C., granted her post arrest bail
subject to furnishing of bail bonds--She shall be released from jail forthwith,
if not required in any other case--District Police Officer, is directed to
suspend SHO, P.S. City Daska for misusing their authority forthwith, initiate
departmental proceedings against them and conclude same within three
months--Application disposed of.
[Pp. 967, 968, 969, 970 &
971] A, B, C, D, G, H, K, L, M
PLD 2014 SC 760 ref.
Constitution of Pakistan, 1973--
----Art. 9--The liberty and dignity
of a person have always remained sacrosanct and have been placed atop
fundamental/human rights pedestal--Islam has conferred upon human being highest
level of dignity amongst all of Allah’s creation and secured and protected for
them complete liberty within prescribed limits. [P. 969] E
PLD 2020 SC 456 ref.
Constitution of Pakistan, 1973--
----Art. 9--Liberty--“Liberty” is called very quintessence of a
civilized existence--Even Article 9 of Constitution of Islamic Republic of
Pakistan, 1973 guarantees that no person shall be deprived of life and liberty
save in accordance with law. [P.
969] F
Article
(9)(1) of International Convenant on Civil and Political rights.; AIR 2011 SC
312; What is A Fair Trial: A Basic Guide to Legal Standards and Practice,
published by Lawyers Committee for Human Rights, USA (2000) ref.
Qanun-e-Shahadat Order, 1984 (10
of 1984)--
----Art. 38--Admission--According
to Article 38 of Qanun-e-Shahadat Order, 1984, admission of an accused before
police cannot be used as evidence against co-accused. [P. 969] G
2013 SCMR 669 ref.
Supplementary Statement--
----Any statement or further
statement of first informant recorded during investigation by police would
neither be equated with First Information Report nor read as part of it. [P. 970] I
1995 SCMR 1350 ref.
Supplementary Statement--
----Supplementary statement
recorded subsequently to FIR can be viewed as improvement. [P. 970] J
1993
SCMR 550, 1998 SCMR 685, 2011 SCMR 379, 2011 SCMR 161 & 2003 SCMR 426 ref.
Constitution of Pakistan, 1973--
----Art. 9--Following directions
are issued to all concerned for strict compliance in future:-
(i) Liberty of a
person is a fundamental right enshrined in Constitution and no one can be
allowed to curtail same on basis of malafide and colourful exercise of
authority.
(ii) Supplementary
statement recorded by complainant for involving a particular accused in an
incident, without disclosing source of information, is not per se admissible
piece of evidence, as such while recording such statement, Investigation
Officer should insist upon complainant to disclose his source of information.
(iii) Investigating
Officer should not cause arrest of accused straightaway upon supplementary
statement of complainant, rather he is duty bound to first collect
incriminating piece of evidence in support of such statement and then proceed
in accordance with law.
(iv) The request of
Investigating Officer for physical/ judicial remand of such accused,
must have been accompanied with opinion of concerned Prosecutor qua sufficiency
of material against him.
(v) Any
request sans of opinion of concerned Prosecutor shall not be entertained by
Area Magistrate or Court as case may be.
(vi) The Area Magistrate or Court, as
case may be, shall not grant physical/judicial remand in a mechanical manner,
rather record its reasons for according such request.
(vii) If supplementary statement of complainant is
bereft of source of information for involvement of an accused, Area Magistrate
or Court as case may be, may require presence of
complainant before dealing with such request. [P.
972] N
M/s. Israr Hussain and Muhammad
Ashfaq Gujjar, Advocates for Petitioner.
Rana Umair Abrar Khan,
A.A.G. with Ikram Shehbaz, SHO, Najam-ul-Hassan, S. I. and Warris Virk,
S. I.
Date of hearing: 13.5.2024.
Order
Through this petition under Section
491 Cr.P.C. the petitioner Mst. Najma Bibi, seeks recovery of Mst. Nagina,
her daughter in law, from the illegal and unlawful confinement of respondents,
inter-alia, on the grounds that on 4.5.2024 around 2/3.00 A.M. (night)
respondents alongwith other police officials raided at the house of the
petitioner and took away the alleged detenue without her involvement in any
criminal case; that when the petitioner contacted the respondents for release
of the alleged detenue, they demanded illegal gratification of Rs. 10,00,000/-,
otherwise, threatened to involve her in multiple criminal cases.
2. This Court vide
order dated 06.05.2024 directed Respondent No. 1/SHO, P.S. Daska (SHO) to
produce the alleged detenue in the Court.
3. SHO instead of producing the detenue, submitted a report that the alleged detenue was
required in FIR No. 754/24 dated 29.03.2024, in respect of an offence u/S. 392,
PPC, registered at P.S. City Daska and has been sent to judicial lock up on
08.05.2024.
4. Learned counsel for the petitioner submits that the SHO has
created false evidence against the detenue in order to cover his illegal act;
that earlier the petitioner filed Writ Petition No. 16520/24 before this Court
complaining the highhandedness/ harassment of the police authorities to the
petitioner and her family members, in which vide order dated 03.04.2024,
SHO submitted an undertaking that he will not harass the petitioner in any
manner in future, upon which said writ petition was disposed of; that SHO
nurtured grudge of filing of said writ petition against the petitioner and in
order to teach her lesson illegally and unlawfully confined her daughter in
law; that the petitioner has also filed contempt petition against the SHO in
this regard.
5. SHO, in attendance, was inquired how the alleged detenue was
involved in the aforesaid criminal case, upon which he stated that vide case
diary No. 2 dated 09.04.2024, accused persons namely Attique Butt, Bilal and
Awais during investigation disclosed that earlier they committed the offence of
robbery with the help of Khalid, husband of the alleged detenue but after the
arrest of said Khalid, they committed the robbery at the pointation of the
alleged detenue; that thereafter the complainant in his supplementary statement
recorded on 16.04.2024 involved the alleged detenue in the occurrence, as such
she was arrested and sent to judicial lock up. This stance of the SHO is self contradictory,
if the co-accused made disclosure qua involvement of the detenue in the
occurrence then there should not be any need for the supplementary statement of
the complainant and the Investigating Officer was required to proceed further
there and then in the light of alleged disclosure but he remained dormant and
then after almost seven days of alleged disclosure recorded the supplementary
statement of the complainant which sans source of information.
6. On Court’s query, he has failed to produce the police
record, which contained case diaries but on the contrary produced the
incomplete report u/S. 173, Cr.P.C. which prima facie leads to the conclusion
that something is wrong in the bottom.
7. I have also gone through the FIR No. 754/24 dated 29.03.2024,
in respect of an offence U/S. 392 PPC, registered at P.S. City Daska, which was
got lodged by the complainant against three unknown persons. The alleged
occurrence has taken place in Canal View Town, Daska, District Sialkot,
whereas, the alleged detenue is resident of Tehsil Kamonke, District
Gujranwala. Interestingly, the rest of three accused are also residents of
Tehsil Daska and it seems very ludicrous, how the alleged detenue could point
out a house for commission of an offence that was situated in some other
district, in particular, when the complainant was previously stranger to her.
Similar is the situation with the supplementary statement of the complainant
which was recorded after twenty days of the alleged occurrence, wherein he did
not disclose his source of information qua the involvement of the alleged
detenue in the occurrence. The petitioner has knocked the door of this Court
complaining illegal and unlawful confinement of the alleged detenue on
06.05.2024 and this Court required her production in the Court on 10.05.2024
and apparently on receipt of said notice, the SHO in connivance with the
Investigating Officer of said case namely Najam-ul-Hassan, S. I., in order to
bypass the direction of this Court, produced the alleged detenue before the
Magistrate Section-30, Daska on 08.05.2025 for sending her on judicial remand.
Perusal of the remand paper shows that it was not forwarded by the concerned,
Prosecutor but amazingly the learned Magistrate not only entertained the
request of the Investigating Officer, without the same being forwarded by the
Prosecutor but also send the alleged detenue to the judicial lock up in a
mechanical manner without applying its judicial mind as to whether sufficient
material was available against the alleged detenue to curtail her liberty or
not.
8. The
liberty and dignity of a person have always remained sacrosanct and have been
placed atop the fundamental/ human rights pedestal. Islam has
conferred upon human being the highest level of dignity amongst all of Allah’s
creation and secured and protected for them complete liberty within the
prescribed limits.[1]
Everyone has the right to liberty and security of person. No one shall be
subjected to arbitrary arrest or detention. No one shall be deprived of his
liberty except on such grounds and in accordance with such procedure as are
established by law.[2]
Life bereft of liberty would be without honour and dignity and it would lose
all significance and meaning and the life itself would not be worth living.
This is why “liberty” is called the very quintessence of a civilized existence
…[3]
Even Article 9 of the Constitution of Islamic Republic of Pakistan, 1973
guarantees that no person shall be deprived of life and liberty save in
accordance with law. Protection against arbitrary arrest and detention is part
of the right to liberty and fair trial.[4]
Here in the instant case, it is an admitted fact that the alleged detenue was
not named in the crime report of the aforementioned criminal case. She was
involved in the case subsequently on the so-called disclosure of the co-accused
before the police. According to Article 38 of the Qanun-e-Shahadat Order, 1984,
admission of an accused before police cannot be used as evidence against the
co-accused.[5]
Even otherwise, it is well settled by now that confession of an accused before
the police is inadmissible in evidence as far as admission of his own
involvement in the alleged offence concerned, thus his statement vis-ŕ-vis
involvement of the co-accused is ordinarily twice removed from admissibility or
reliability.[6]
I am of the considered view that the so-called disclosure of the co-accused,
which even not produced before the Court, was insufficient to curtail the
liberty of the alleged detenue, which is her inalienable right enshrined in the
Constitution.
Second
piece of evidence created by the SHO & Investigating Officer, in order to
justify the arrest/detention of the alleged detenue is supplementary statement
got recorded by him almost twenty days of the alleged occurrence but he did not
disclose his source qua involvement of the alleged detenue in the alleged
occurrence. Moreso, as has been discussed supra, the alleged detenue is
resident of Tehsil Kamonke, District Gujranwala, whereas, the alleged
occurrence has taken place in Tehsil Daska, District Sialkot and there is a
complete silence in the statement of the complainant, how she could point out
her house for the purpose of robbery, in particular, when she was earlier
stranger to her. It is well settled by now that any statement or further
statement of the first informant recorded during the investigation by police
would neither be equated with First Information Report nor read as part of it.[7]
The Apex Court in a plethora of judgments observed that supplementary statement
recorded subsequently to the FIR can be viewed as improvement.[8]
Although in order to strengthen the case against the alleged detenue recovery
of one pair of gold earrings was shown against her but neither the weight of
alleged recovered gold ornaments was mentioned nor its
complete description was disclosed to connect her with the alleged
crime. Moreso, occurrence has taken place on 29.03.2024 and the alleged
recovery was shown to be effected from the handbag of the alleged detenue on
08.05.2024 i.e. after almost 1 ˝ months and it is beyond comprehension
that an accused of robbery kept the case property in her hand bag for such a
long period. Apparently, the SHO in active connivance with the Investigating
Officer manipulated forged and fabricated evidence in order to avoid the
consequences of illegal detention. Unfortunately, learned Magistrate
Section-30, Daska has also not applied its judicial mind and acceded
the request of judicial remand of the alleged detenue, which was even not
forwarded by the concerned Prosecutor, resulting into grave miscarriage of
justice.
9. For
the reasons enumerated above, the detention of the alleged detenue namely Mst.
Nagina Ashraf is hereby declared illegal and result of mis-use of authority
by the SHO & Investigating Officer. The evidence so far collected against
her is insufficient to curtail her liberty even for a minute, therefore,
instead of making her ball of ping pong for approaching the Court of first
instance for her release on bail, this Court while exercising its jurisdiction
under Section 561-A, Cr.P.C., granted her post arrest bail subject to
furnishing of bail bonds in the sum of Rs. 10,000/-with one surety in the like
amount to the satisfaction of the Trial Court. She shall be released from the
jail forthwith, if not required in any other case.
10.
Having said so, the way and the manner the police officials abducted the
alleged detenue by trespassing into her house at mid-night without any search
warrants, confined her for a number of days and then created false and
frivolous evidence against her in order to justify their act requires serious
attention. Apparently, the SHO nurtured grudge against the petitioner for
filing of harassment petition against him and in order to teach her lesson and
made her example for the rest of aggrieved persons, he took the law into hands
and abducted the alleged detenue, in the mid-night and confined her in unlawful
custody. When the petitioner again approached to the Court seeking recovery of
alleged detenue, then in order to cover his illegal act, he in active
connivance with the Investigating Officer, involved her in the aforesaid
criminal case. District Police Officer, is directed to suspend the SHO, P.S.
City Daska namely Ikram Shehbaz and Syed Najam-ul-Hassan, SI, for misusing
their authority forthwith, initiate departmental proceedings against them and
conclude the same within three months from the date hereof under intimation to
the Deputy Registrar (J) of this Court. He shall also ensure that no posting
will be given to both the officials till the conclusion of the departmental
proceedings. Besides above, SHO and Investigating Officer are also liable to
face criminal case, therefore, petitioner is directed to move written
application for abduction/ illegal confinement of the alleged detenue to the
DPO, Sialkot, who shall ensure registration of case against them under the
relevant provisions of law forthwith. To eliminate the excuse for
non-registration of FIR on the ground that the petitioner has not appeared
before the police for getting registration of case, in case of his failure, the
DPO is directed to get FIR registered against the above-mentioned delinquent
police officials through any of his subordinates not below than the rank of
DSP.
11. Before parting with this order,
following directions are issued to all the concerned for strict compliance in
the future:-
(i) Liberty
of a person is a fundamental right enshrined in the Constitution and no one can
be allowed to curtail the same on the basis of mala fide and colourful
exercise of authority.
(ii) Supplementary statement recorded by the complainant for
involving a particular accused in an incident, without disclosing the source of
information, is not per se admissible piece of evidence, as such while
recording such statement, the Investigation Officer should insist upon the
complainant to disclose his source of information.
(iii) Investigating Officer should not cause arrest of the accused
straightaway upon the supplementary statement of the complainant, rather he is
duty bound to first collect incriminating piece of evidence in support of such
statement and then proceed in accordance with law.
(iv) The request of the Investigating Officer for physical/ judicial
remand of such accused, must have been accompanied
with the opinion of the concerned Prosecutor qua sufficiency of the material
against him.
(v) Any
request sans of the opinion of the concerned Prosecutor shall not be
entertained by the Area Magistrate or the Court as the case may be.
(vi) The Area Magistrate or the Court, as
the case may be, shall not grant physical/judicial remand in a mechanical
manner, rather record its reasons for according such request.
(vii) If the supplementary statement of the complainant is bereft of
source of information for involvement of an accused, the Area Magistrate or the
Court as the case may be, may require the presence of the complainant before
dealing with such request.
13. Copy of this order shall be
circulated amongst all the concerned for compliance through Registrar of this
Court.
Disposed of.
(K.Q.B.) Application disposed of
[1]. See Kh. Salman Rafiq Case (PLD 2020 SC
456).
[2]. Article (9)(1)
of the International Convenant on Civil and Political rights.
[3]. AIR 2011 SC 312.
[4]. See What Is A Fair
Trial: A Basic Guide to Legal Standards and Practice, published by
Lawyers Committee for Human Rights, USA (2000).
[5]. Raja Muhammad Younis
.Vs. The State (2013 SCMR 669).
[6]. Alam Zeb .V. The State and others (PLD 2014 SC 760).
[7]. Falak Sher .vs. The
State (1995 SCMR 1350).
[8]. 1993 SCMR 550,1998
SCMR 685,2011 SCMR 379, 2011 SCMR 161 & 2003 SCMR 426.