PLJ 2024 Cr.C. 976
[Lahore High Court, Lahore]
Present:
Asjad Javaid Ghural, J.
SHAHIDA
BIBI--Petitioner
versus
INSPECTOR
GENERAL OF POLICE, PUNJAB etc.--Respondents
Crl.
Misc. No. 27670-H of 2024, decided on 13.5.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Constitution of Pakistan,
1973, Arts. 9, 10, 10-A, & 199--Police Rules, 1934--Habeas
petition--Illegal detention--Release on bail--Registration of criminal
case--Abuse of power--Arrest in more than one criminal case at one
time--Petitioner filed a petition complaining illegal confinement of her
husband, (the detenue) by SHO, P.S. Manga Mandi,--High Court issued a direction
for production of detenue in Court--In order to frustrate proceedings of High Court,
presented alleged detenue before learned Area Magistrate and made a request for
sending him to judicial lock up for purpose of test identification parade which
was accordingly granted--High Court while taking serious notice of malafide of
Investigating Officer summoned SSP (Inv), who undertook to hold inquiry against
delinquent police official--The detenue was discharged in one case, whereas, he
was granted post arrest bail in other case--Soon after release of detenue from
jail on same day, Respondent No.4 ASI again forcibly abducted detenue and
confined him at Police Station, Raja Jang, District Kasur--Being aggrieved,
petitioner rushed to this Court by filing instant petition, seeking recovery
and production of detenue in Court--In compliance of said notice SHO submitted
a report, according to which detenue being required in case of offence under
Section 392 PPC--When an accused is arrested in a case, there is no legal
impediment for interrogating him with regard to all cases registered against
him since then--The police since long is following illegal practice of showing
arrestof person in one case and on expiry of remand or after release on post
arrest bail it again arrests him in another case--An accused arrested in one
case shall be deemed to have been arrested in all cases registered against him
since then and practice of his arrest after release in one case amounts to
denial of his fundamental rights--In future if this practice is not
discontinued, delinquent police official shall be taken to task for denying
basic right of liberty to a citizen--How police of one police station may have
knowledge/information about registration of case against an accused in some
other police station or in some other district--The police cannot even take
shelter of ignorance of arrest of detenue in an already registered case--The
detenue was in judicial lock up but he intentionally avoided to arrest detenue
in said case--Investigating Officer of said case, would have arrested detenue
on very date, when case property was taken into possession by him--The police
officials in order to justify illegal detention of detenue, involved him in
case, on basis of his so-called confession before police, which is not
admissible piece of evidence--The evidence so far collected against detenue is
insufficient to curtail his liberty, therefore, instead of requiring him to
approach Court of first instance for his release on bail--High Court while
exercising its jurisdiction under Section 561-A Cr.P.C., is granting him post
arrest bail--He shall be released from jail forthwith, if not required in any
other case--DPO is directed to get FIR registered against above-mentioned
delinquent police officials through any of his subordinates not below than rank
of DSP.
[P.
982, 983, 984, 985 & 987] A, B, C, D,
F,
N, O, P, Q, R, CC, DD, EE, FF
PLJ 2024 Lahore 43 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 167--Habeas petition--Illegal
detention--An accused required in more than one criminal cases when arrested
will be deemed to have been arrested in all cases registered against him. [P. 983] E
Criminal Procedure Code, 1898 (V of 1898)--
----S.
167--Remand--Custody in more than one criminal cases--It is nowhere stated in
Criminal Procedure Code and Police Rules that a person required in more than
one case when arrested will be deemed to have been arrested in one case and he
cannot be arrested simultaneously in more than one case. [P. 983] G
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
167--Remand--Section 167, Cr.P.C. says that when a person is arrested or
detained in custody, Magistrate may authorise his detention in such custody for
a term not exceeding fifteen days in whole. [P.
983] J
Criminal
Procedure Code, 1898 (V of 1898)--
----S.
167--Remand--The longest period for which an accused can be ordered to be
detained continuously in police custody by one or more such orders, is only
fifteen days. [P. 983] I
Criminal Procedure Code, 1898 (V of 1898)--
----S. 167--Remand--The detention of accused person required in
more than one cases already registered against him, for more than fifteen days
would be illegal. [P.
983] J
1992 PCr.LJ 131 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----S.
167--Remand--Custody in more than one criminal cases--Successive arrests of an
accused in different cases one after another amounts to denial of his
fundamental right and this Court being jealous guardian of rights of a citizen
cannot sit as a silent spectator and will step forward to curb such
malpractice. [P. 984] K
Constitution
of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V
of 1898), S. 561-A--Where action and proceedings are not bona fide and with
ulterior motive to obtain information about an absconding accused and arrest
after arrest is made involving same person in different blind reports lodged
much earlier and no explanation is provided for such series of actions in
seriatim one after other, High Court is empowered to afford protection to
citizen against involving frivolous and mala fide actions by imposing
conditions on erring authorities and agencies.
[P.
984] L
1994 SCMR 1283 ref.
Constitution of Pakistan, 1973--
----Art. 199--Criminal Procedure Code, (V
of 1898), S. 561-A--The Courts have to safeguard fundamental rights of every
citizen and to protect life and liberty from illegal, unauthorized and mala
fide acts of omission or commission by an authority or person--Where liberty of
a citizen was involved action initiated by police when found to be mala fide
court should not hesitate to step in and grant relief to citizen. [P. 984] M
2009 SCMR 141 ref.
Constitution of Pakistan, 1973--
----Arts. 9, 10 & 199--Constitutional
Courts are meant to protect fundamental rights of an aggrieved person(s)
including liberty and liberty and redress their grievances--If an aggrieved
person knocked door of this Court against malafide or colourful exercise of
authority by Executive or illegal confinement of his/her dear one, it is
bounden duty of Court to protect his/her right subject to law.
[P.
985] S
Criminal Law and Jurisprudence--
----One of cardinal principle of criminal
law and jurisprudence is that an accused person is presumed to be innocent
until proven guilty by Court of law. [P.
986] U
Arrest of Accused--
----S. 156--Arrest of
accused--Investigating Officer seems more eager to cause arrest of such
accused, without determining veracity of allegations--Mere lodging of an
information does not make a person an accused nor does a person against whom an
investigation is being conducted by police can strictly be called an accused.
[P.
986] V
PLD 1975 SC 506 ref.
Compensation, Illegal Detention--
----If a person is unjustly deprived of
his liberty, compensation will be required to be paid to him or her by
delinquent police officer.
[P.
986] W
2015 SCMR 1724 ref.
Arrest of Accused--
----S. 156--The Police Rules, 1934--Arrest
of accused--Ordinarily no person is to be arrested only because he has been
nominated as an accused person in an FIR or in any other version of incident
brought to notice of investigating officer by any person until investigating
officer feels satisfied that sufficient justification exists for his arrest and
for such justification he is to be guided by relevant provisions of Code of
Criminal Procedure, 1898 and Police Rules, 1934. [Pp.
986 & 987] X
PLD 2018 SC 595 ref.
Arrest of Accused--
----S. 156--The Police Rules, 1934--Arrest of accused--A
suspect is not to be arrested straightaway or as a matter of course and, unless
situation on ground so warrants, arrest is to be deferred till such time that
sufficient material or evidence becomes available on record of investigation. [P. 987] Y
Constitution of Pakistan, 1973--
----Art.
189--Judgment of supreme court--The judgment of Apex Court is binding on every
organ of State as per Article 189 of Constitution and any deviation from said
judgment alone is sufficient to infer malafide and ulterior motive on part of a
person doing so.
[P.
987] Z
Constitution of Pakistan, 1973--
----Arts. 9, 10 & 199--Life and
liberty of a person is a cherished right guaranteed under Constitution and same
cannot be allowed to be circumvented at whims of executive. Arrest of any
person is a grave matter. Capricious exercise of power to arrest has
deleterious consequences, thus highlighting need to exercise it with care,
caution and sensitivity. [P.
987] AA
Arrest of a Person--
----Arrest of a person has to be justified not only by referring to
prima facie evidence and adequate actionable material sufficiently connecting
person with offence/crime complained of, but also by showing that in given
circumstances, there were no other less intrusive or restrictive means
available--The power of arrest should not be deployed as a tool of oppression
and harassment. [P.
987] BB
PLD
2020 SC 456 ref.
Bail in Habeas Petition--
----This Court while exercising its jurisdiction under Section 561-A
Cr.P.C., is granting him post arrest bail. [P.
987] EE
Illegal Arrest--
----In order to curb practice of arresting an accused in different
criminal cases, one after other, after his release on bail, following directions
are issued to all concerned:-
“(i) If an accused is arrested in a criminal
case, he shall be presumed to have been arrested in all criminal cases
registered against him wherein his arrest was required.
(ii) If arrest of accused was required in any
case already registered against him but could not be made for any reason,
Investigating Officer is bound to make a written request to Area Magistrate or
Court, as case may be, explaining reasons for such omission and seeking
permission for arrest of accused.
(iii) The request of
Investigating Officer must be endorsed by an opinion of concerned Prosecutor
qua sufficiency of material for arrest of an accused.
(iv) Area Magistrate
or Court, as case may be, shall not accord approval of such arrest in a mechanical
manner, rather record reasons in writing for granting such permission.
(v) If according to opinion of Area Magistrate
or Court, as case may, sufficient incriminating material is not available
against an accused, it may defer such arrest till time of availability of such
evidence.
(vi) At time of dealing with such request of
arrest, Area Magistrate or Court, as case may be, must keep in mind binding
dictum of Apex Court laid down in Sughran Bibi Case15and right of fair trial
and due process enshrined in Article 10-A of Constitution of Islamic Republic
of Pakistan, 1973.
(vii) Any deviation from above directions would
entail penal consequences, provided under law.” [P.
988] GG
PLD 2018 SC 595 ref.
M/s. Qasim Ali and Muhammad Ashfaq Gujjar, Advocates for
Petitioner.
Rana Umair Abrar Khan, A.A.G. for Respondents.
Date of hearing: 13.5.2024.
Order
The
legitimacy of the police force in any nation is fundamentally anchored in its
perceived impartiality, fairness, and adherence to the principles of justice.
Unfortunately, over the past few years, a day seldom goes by without another
case of police brutality or abuse of power by police officers being noticed by
this Court. The frequency of these occurrences begs the question as to whether
this is simply our new norm or whether a public can ever truly feel safe and
protected by the law enforcement. The term “abuse of power” encompasses all the
ways police officers can abuse their positions by taking advantage of the very
people they have pledged to serve and protect. While most Police Officers take
that pledge seriously, there are some who abuse the power given them to fulfill
selfish personal desire or personal vendetta. The “abuse of power” by a Police
Officer, inter-alia, includes the use of excessive force, placing a citizen
under false arrest, warrantless searches or arrests, successive arrest of an
accused in one after the other case and assault upon a citizen. This case is a
classic example of abuse of power by the police officers. Initially, the
petitioner Mst. Shahida Bibi, filed a petition[1]
complaining illegal confinement of her husband, Muhammad Lateef (the detenue)
by the SHO, P.S. Manga Mandi, District Lahore. This Court issued a direction[2]
for production of the detenue in the Court, which was duly conveyed to the
concerned quarters but despite this fact Investigating Officer of case[3]
in order to frustrate the proceedings of this Court, presented the alleged
detenue before the learned Area Magistrate and made a request for sending him
to judicial lock up for the purpose of test identification parade which was
accordingly granted by the said Magistrate. This Court while taking serious
notice of the mala fide of the Investigating Officer summoned the SSP
(Inv) and SP (Inv) Sadar Division, Lahore, who undertook to hold inquiry
against the delinquent police official. Since, the custody of the detenue was
regulated under the law, as such said petition was disposed of with direction
to the petitioner to agitate her grievance before the competent forum.[4]
2. Statedly, the detenue was discharged in case FIR No. 1639/ 2023
dated 02.07.2023, in respect of offence under Section 392, PPC, whereas, he was
granted post arrest bail in case FIR No. 1048/24, in respect of an offence
under Section 401, PPC, both registered at Police Station, Manga Mandi, Lahore
vide order dated 03.05.2024. Soon after the release of the detenue from the
jail on the same day, Respondent No. 4 (Sajid Khan, ASI) again forcibly
abducted the detenue and confined him at Police Station, Raja Jang, District
Kasur, with the active connivance of the SHO of said police station (SHO).
Being aggrieved, the petitioner rushed to this Court by filing instant
petition, seeking recovery and production of the detenue in the Court. Notices
were issued to the concerned quarters[5]
and in compliance of said notice SHO submitted a report, according to which the
detenue being required in case FIR No. 71/24 dated 23.01.2024 in respect of
offence under Section 392, PPC registered at Police Station, Raja Jang was
arrested and sent to judicial lock up on 08.05.2024.
3. The report submitted by the SHO is sham. The case FIR
No. 71/24, in which the arrest of the detenue was shown was registered on
23.01.2024. If the report of the SHO is taken on face value, even then the case
property which was shown to be recovered at the instance of the detenue, was
taken into possession by the Investigating Officer vide case Diary No. 1
dated 07.04.2024 and admittedly at that time the detenue was in judicial lock
up. There is no explanation of the fact that if the arrest of the detenue was
required in the aforesaid case, then why his arrest was not shown in jail
record at that time. It is settled proposition of law that when an accused is
arrested in a case, there is no legal impediment for interrogating him with
regard to all the cases registered against him since then. Section 167, Cr.P.C.
does not visualize successive and repeated arrest of a person required in more
than one cases. An accused required in more than one criminal cases when arrested
will be deemed to have been arrested in all the cases registered against him.
There is no legal bar for interrogating an accused person with regard to the
allegations levelled against him in another case. It is rather desirable that
when a person is required or accused in more than one cases or where more than
one F.I.Rs. are registered against him is arrested and remanded to physical
custody, then he should be interrogated about the allegations against him in
all the cases. Instead of acting strictly in accordance with law, the police
since long is following the illegal practice of showing the arrest of the
person in one case and on the expiry of remand or after release on post arrest
bail it again arrests him in another case. It is commonly known that in
selected cases, police would arrest the accused on his release in the first
case. It is nowhere stated in the Criminal Procedure Code and Police Rules that
a person required in more than one case when arrested will be deemed to have
been arrested in one case and he cannot be arrested simultaneously in more than
one case. Section 167, Cr.P.C. simply says that when a person is arrested or
detained
in custody, the Magistrate may authorise his detention in such custody for a
term not exceeding fifteen days in the whole. The section does
not talk of case, it talks of custody only. The longest period for which an
accused can be ordered to be detained continuously in police custody by one or
more such orders, is only fifteen days. So, the detention of the accused person
required in more than one cases already registered against him, for more than
fifteen days would be illegal.[6]
4. Life
and liberty is a fundamental right enshrined in the Constitution of Islamic
Republic of Pakistan, 1973 and the same cannot be allowed to be curtailed at
the whims of the executive. Successive arrests of an accused in different cases
one after another amounts to denial of his fundamental right and this Court
being jealous guardian of the rights of a citizen cannot sit as a silent spectator
and will step forward to curb such malpractice. It is well settled that where
the action and proceedings are not bona fide and with ulterior motive to obtain
information about an absconding accused and arrest after arrest is made
involving same person in different blind reports lodged much earlier and no
explanation is provided for such series of actions in seriatim one after the
other, the High Court is empowered to afford protection to the citizen against
involving frivolous and mala fide actions by imposing conditions on the
erring authorities and agencies.[7]
The Courts have to safeguard the fundamental rights of every citizen and to
protect the life and liberty from illegal, unauthorized and mala fide
acts of omission or commission by an authority or person. In cases where the
liberty of a citizen was involved the action initiated by the police when found
to be mala fide the Court should not hesitate to step in and grant
relief to the citizen.[8]
5. It
is thus once again reiterated that an accused arrested in one case shall be
deemed to have been arrested in all the cases registered against him since then
and practice of his arrest after release in one case amounts to denial of his
fundamental rights. In future if this practice is not discontinued, the
delinquent police official shall be taken to task for denying the basic right
of liberty to a citizen. A question may arise in mind that how the police of
one police station may have knowledge/information about the registration of
case against an accused in some other police station or in some other district.
Answer of this question has been given by this Court in a celebrated judgment[9]
in a following terms:
“In
the light of above discussion, it can be said that in this digital age when
sharing information is so simple and cheap, its dissemination has become so
rapid and effective either through social media account or online information
available at respective Police Information System Software, the record of
criminal cases of an accused can be obtained easily. Even otherwise, a Crime
Investigation Agency (CIA) is in existence, whose primary duty is collection of
information relating to investigation of every case registered in the district
that does include information of arrest as per Rule 21.35 of Police Rules, 1934
and it also talks ab out arrest of accused in all cases and not in one. On
receiving an information of arrest of an accused CIA is duty bound to inform
the Incharge Police Station about any other cases registered against him in the
district; therefore, Station House Officer can also develop contact with CIA of
other districts or provinces so as to collect information about number of cases
registered against him throughout the country.”
6. Herein the instant case, the police cannot even take shelter of
ignorance of arrest of the detenue in an already registered case, as the police
report itself shows that during the investigation of case FIR No. 1048/24,
robbed motor-cycle of case FIR No. 71/24 was recovered at the instance of the
alleged detenue and the same was taken into possession by the Investigating
Officer of case FIR No. 71/24 vide case diary No. 1 dated 07.04.2024 and
admittedly at that time the detenue was in judicial lock up but he
intentionally avoided to arrest the detenue in the said case. It is important
to note that detenue was not nominated in case FIR No. 71/24 and he was
involved in the said case upon his own disclosure while in police custody which
is not admissible piece of evidence. Apparently, Sajid Khan, ASI, P.S. Manga Mandi,
who earlier apprehended the detenue and when this Court took notice, he opted
to send him on judicial remand and when his illegal exercise of power was
brought in the notice of his high-ups by this Court[10]
he nurtured grudge against the detenue and in order to teach him lesson,
illegally confined him and when the petitioner filed instant petition, he in
order to save his skin, in active connivance with the SHO, P.S. Raja Jang,
Kasur created evidence against the detenue and involved him in case FIR No. 71/24.
Had it not been so, the Investigating Officer of said case, would have arrested
the detenue on the very date, when the case property was taken into possession
by him. This is very alarming situation. Constitutional Courts are meant to
protect the fundamental rights of an aggrieved person(s) including liberty and
liberty and redress their grievances. If an aggrieved person knocked the door
of this Court against the mala fide or colourful exercise of authority
by the Executive or illegal confinement of his/her dear one, it is the bounden
duty of the Court to protect his/her right subject to law. However, if any
official/officer complained against, took it on personal level and attempted to
teach lesson to the aggrieved person, who approached this Court for redressal
of his/her grievance, this Court will not tolerate such practice and the
delinquent/responsible officer/official shall have to face the consequences.
From the above facts, it has been established on record that Sajid Khan, ASI,
P.S. Manga Mandi, Lahore with the active connivance of SHO, P.S. Raja Jang,
Kasur, forcibly abducted the detenue Muhammad Latif and when the Court took
notice of his illegal confinement, created false and fabricated evidence
against him in order to save their skin, therefore, the petitioner is directed
to file an application for registration of criminal case against both the
aforesaid police officials before the District Police Officer, Kasur, who shall
lodge the FIR against them under the relevant provisions of law without wastage
of any time, under intimation to the Deputy Registrar (J) of this Court. In
order to rule out the possibility of excuse of non-appearance of the petitioner
seeking registration of case, in such an eventuality, 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.
7. It
goes without saying that one of the cardinal principle of criminal law and
jurisprudence is that an accused person is presumed to be innocent until proven
guilty by the Court of law. However, on the one hand, soon after lodging of the
crime report or supplementary statement, as the case may be, the complainant
insisted upon the arrest of the accused and on the other hand, it has been
observed by this Court that the Investigating Officer seems more eager to cause
arrest of such accused, without determining the veracity of the allegations. It
is well settled that mere lodging of an information does not make a person an
accused nor does a person against whom an investigation is being conducted by
the police can strictly be called an accused.[11]
It is, therefore, desired that on receiving an information qua the involvement
of a person in a cognizable offence, police should not straightway cause his
arrest, rather first determine the veracity of the allegations and if after
investigation, it arrived at a conclusion that sufficient incriminating
material is available against the person complained against, then proceed
further in accordance with law. If a person is unjustly deprived of his
liberty, compensation will be required to be paid to him or her by the
delinquent police officer.[12]
In Sughran Bibi case[13]
the Apex Court, inter-alia, declared that “Ordinarily no person is to
be arrested only because he has been nominated as an accused person in an FIR
or in any other version of the incident brought to the notice of the
Investigating Officer by any
person until the Investigating Officer feels satisfied that
sufficient justification exists for his arrest and for such justification he is
to be guided by the relevant provisions of the Code of Criminal Procedure, 1898
and the Police Rules, 1934. According to the relevant provisions of the said
Code and the Rules a suspect is not to be arrested straightaway or as a matter
of course and, unless the situation on the ground so warrants, the arrest is to
be deferred till such time that sufficient material or evidence becomes
available on the record of investigation prima facie satisfying the investigating
officer regarding correctness of the allegations levelled against such suspect
or regarding his involvement in the crime in issue.” This judgment of the
Apex Court is binding on every organ of the State as per Article 189 of the
Constitution and any deviation from the said judgment alone is sufficient to
infer the mala fide and ulterior motive on the part of a person doing
so. Life and liberty of a person is a cherished right guaranteed under the
Constitution and the same cannot be allowed to be circumvented at the whims of
the executive. Arrest of any person is a grave matter. Capricious exercise of
the power to arrest has deleterious consequences, thus highlighting the need to
exercise it with care, caution and sensitivity. Arrest of a person has to be
justified not only by referring to prima facie evidence and adequate actionable
material sufficiently connecting the person with the offence/crime complained
of, but also by showing that in the given circumstances, there were no other
less intrusive or restrictive means available. The power of arrest should not
be deployed as a tool of oppression and harassment.[14]
8. In the present case, as has been discussed supra, prima
facie, the police officials in order to justify illegal detention of the
detenue, involved him in case FIR No. 71/24, on the basis of his so-called
confession before the police, which is not admissible piece of evidence and
unfortunately the Area Magistrate while dealing with the request of
Investigating Officer for judicial remand of the detenue has failed to take
into consideration, this legal aspect of the case and granted the request in a
mechanical manner, which cannot be subscribed by this Court. The evidence so
far collected against the detenue Muhammad Latif is insufficient to curtail his
liberty, therefore, instead of requiring him to approach the Court of first
instance for his release on bail, this Court while exercising its jurisdiction
under Section 561-A, Cr.P.C., is granting him 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. He shall be released from the
jail forthwith, if not required in any other case.
9.
In order to curb practice of arresting an accused in different criminal cases,
one after the other, after his release on bail, following directions are issued
to all the concerned:-
“(i) If an accused is arrested in a criminal
case, he shall be presumed to have been arrested in all criminal cases
registered against him wherein his arrest was required.
(ii) If arrest of the accused was required in
any case already registered against him but could not be made for any reason,
Investigating Officer is bound to make a written request to the Area Magistrate
or the Court, as the case may be, explaining the reasons for such omission and
seeking permission for the arrest of the accused.
(iii) The request of the Investigating Officer
must be endorsed by an opinion of the concerned Prosecutor qua sufficiency of
the material for the arrest of an accused.
(iv) Area Magistrate or the Court, as the case
may be, shall not accord approval of such arrest in a mechanical manner, rather
record reasons in writing for granting such permission.
(v) If according to the opinion of the Area
Magistrate or the Court, as the case may, sufficient incriminating material is
not available against an accused, it may defer such arrest till the time of
availability of such evidence.
(vi) At the time of dealing with such request of
arrest, Area Magistrate or the Court, as the case may be, must keep in mind the
binding dictum of the Apex Court laid down in Sughran Bibi Case[15]
and the right of fair trial and due process enshrined in Article 10-A of the
Constitution of Islamic Republic of Pakistan, 1973.
(vii) Any deviation from the above directions would entail penal
consequences, provided under the law.”
Copy of this order shall be circulated amongst all concerned
through the office of Registrar.
Disposed of.
(K.Q.B.) Application disposed