1. MAQBOOL BAQAR, J.--- Through this application, under section 491 Cr. P. C. The petitioner had inter alia, soughts release of his nephew Noor Nabi Shah who, allegedly, was under wrongful confinement at Police Station Dadu. It was alleged that on 28-5-2002, S.H.O. Police Station Dadu respondent No,1 P.C. Haroon Panhwar, P.C. Leemo Respondent No,2 and 3 respectively and other staff of the police station arrested the detenu from Civil Hospital Dadu where he was performing his duty and that the detenu is being constantly tortured at the Police Station. It was stated that on 1- 6-2002 respondents tortured the detenu so severely that the detenu became unconscious and was referred to Civil Hospital. It was further alleged that no entry of the detenu's arrest and detention was made in the records of the Police Station.
2. ' On 4-6-2002 this Court was pleased to direct Sessions Judge Dadu to depute a Judicial Magistrate to visit Police Station Dadu, make entries in the relevant registers at the Police Station of his arrival, departure and purpose of his visit and to release the detenu forthwith in case he is found to be in illegal confinement. Mr. Sikandar Ameer Pahore, Judicial Magistrate so appointed, in his report, submitted that he visited the Police Station Dadu on 4-6-2002 at 11.15 P.M. In presence of the petitioner, Mukhtar Ahmed Sario S.H.O. Police Station Dadu, and his staff and took possession of daily Roznamcha and found the alleged detenu Noor Nabi Shah confined in the lock-up. However, on enquiry the S.H.O. Disclosed that there is no entry in the Roznamcha regarding the arrest and detention of the detenu. The learned Magistrate further B stated that the detenu was in a very serious condition and marks of violence were visible on his body. The detenu was released and sent to Civil Hospital with his relatives for medical treatment. Such entry was made by the Judicial Magistrate in the daily Roznamcha who also annexed a copy thereof with his report.
3. Mukhtar Ahmed Sario, S.H.O. Police Station Dadu in his statement filed before this Court on 6-6- 2002 inter alia claimed that he called the detenu for investigation in case/Crime No,84 of 2002, under sections 457, 380, P.P.C. And 14 H.O.And that an entry to that effect being entry No,30 dated 4- 6-2002 was made in the daily station diary at 1630 hours on that day. He alleged that the Magistrate got the detenu released from the lock up of the Police Station without contacting him or any other police official. The S.H.O. Denied that 'the detenu was maltreated/tortured by police.
4. Various documents including attested copies of the purported entries in the daily Roznamcha and Mashirnama of arrest of the alleged detenu were filed along with the above statements and the same were taken on record.
5. On 6-6-2002, this Court in view of the conflicting statements of the learned Judicial Magistrate and the S.H.O. Police Station Dadu directed the District and Sessions Judge Dadu to enquire into the matter himself or direct any of his Additional District and Sessions Judges to do the needful and furnish report.
6. ' The District and Sessions Judge Dadu in compliance of the aforesaid order appointed Additional.
7. District and Sessions Judge Mehar to conduct the enquiry. The Additional District and Sessions Judge Mehar after conducting the enquiry held that the statement made by the S.H.O. And affidavit filed by him in this Court are false, concocted and are incorrect whereas the report submitted by the Judicial Magistrate Mr. Sikandar Ameer Pahore is correct.
8. ' The perusal of the report reveals that while conducting enquiry the Additional District and Sessions Judge recorded statements of S.H.O. Mukhtar Ahmed Sario, who inter alia, produced daily diary book of Police Station Dadu containing Entries Nos.30 to 40, a copy of Mashirmana of arrest of Noor Nabi Shah dated 4-6-2002, a letter of Civil Surgeon, Civil Hospital Dadu dated 28-5-2002, copy of F.I.R. In Crime No,84 of 2002, Police Station Daud and a copy of discharge slip of the detenu from the Hospital. The learned Additional District and Sessions Judge also recorded statements of W.H.C.
9. Abdul Rasool Sial of P.S. Dadu, Mr. Sikandar Ameer Pahore Judicial Magistrate Dadu. Syed Hassan Ali Shah and the petitioner, who produced Press cutting of daily newspapers "Kawish" and "Shaam" and copies of telegrams addressed to the learned District Judge and other higher authorities.
10. Statements of Syed Noor Nabi Shah the detenu and Dr. Munir Ahmed Abbasi Medical Officer Civil Hospital, Dadu were also recorded. Dr. Munir Ahmed Abbasi produced his medical examination report, admission slip and discharge slip of the detenu. In addition statements of three Officers of the Investigation team Police Station Dadu namely (1) Inspector Naseerullah, the Supervising Officer (2) SIP Peer Mumtaz Ahmed and (3) S.I. Muhammad Ashraf Shahani were also recorded Inspector Naseerullah produced a copy of the Daily Diary Register of the investigation team dated 4-6-2002.
11. ' In his statement before the learned Additional District and Sessions Judge, the petitioner stated that the detenu was arrested by police from Civil Hospital Dadu on 28-5-2002, such news was also published in daily Kawish and Shaam, and that he sent telegrams to various authorities in this regard.
12. ' The detenu in his statement while supporting the petitioner's version stated that he was arrested by police on 28-5-2002 from Civil Hospital Dadu at about 12 noon where he was on duty and that police tortured and maltreated him daily and demanded money from him. He stated that he informed his uncle regarding the above and that on the orders of this Court and District and Sessions Judge Dadu, the Judicial Magistrate Dadu visited the Police Station and got him released from the lock-up.
13. ' The Judicial Magistrate Dadu, Mr. Sikandar Ameer Pahore stated that in compliance of this Court's order he visited the police station, took daily diaries of investigation team and of the Police Station in his possession. He went to the lock-up where the detenu was present. He required the WHC and the S.H.O. To produce the record about the arrest and detention of Syed Noor Nabi Shah but they disclosed that there is no such record, Mashirnama or any entry in the Daily Diary, he therefore released the detenu from the police custody. The learned Judicial Magistrate further stated that the detenu's clothes were bloodstained, there were marks of violence torture, on his person and that the condition of the detenu was serious. He further claimed that he himself checked the daily diary but there was no entry regarding the arrest and detention of the detenu and therefore, he dictated such entry to WHC of Police Station Dadu who entered the same in the Daily Dairy at serial No,40 dated 4-6-2002.
14. ' The Medical Officer Dr. Munir Ahmed Abbasi, who has medically examined the detenu after his release from the Police Station by the Judicial Magistrate, confirmed that there were marks of violence and torture on the body of the detenu.
15. ' The learned Additional District and Sessions Judge in his report has also relied upon and referred to the report of the Civil Surgeon, Civil Hospital Dadu dated 27-6-2002, whereby, the Civil Surgeon reported that the detenu who is an ECG Assistant, Civil Hospital, Dadu was under police custody from 28-5-2002 for investigation and that Dr. Munir Ahmed Abbasi, Medical Officer examined him after his release by the Judicial Magistrate Dadu on 5-6-2002. It is further stated in the inquiry report that Supervising Officer Investigation Team Police Station Dadu, Sub-Inspector Nasrullah, Incharge Investigation Team. Sub-Inspector Pir Mumtaz and A.S.-I. Muhammad Ashraf Shahani of Investigation Team who according to the Judicial Magistrate and S.H.O. Police Station Dadu, were present at the Police Station when the former visited the Police Station, also supported the version of the Judicial Magistrate fully. The said police officers further stated that on 4-6-2002 they were all along present in their Investigation Office in Police Station, Dadu but S.H.O. Dadu has not sent any Mashirnama of arrest of the detenu to them along with any letter as per alleged Entry Nos.30 and 31 of Daily Diary Register of Police Station Dadu. The learned Sessions Judge also noted that the Daily Diary Register of Investigation Team produced by Sub-Inspector Nasrullh also shows that no Mashirnama of arrest or any letter was delivered to the Investigation Team by the S.H.O. It is noted that although delivery of a copy of an F.I.R. In Crime No,86 of 2002 under sections 324, 337/A(ii) by 'W.P.C. Of Police Station Dadu to the Investigation Team at the relevant time is recorded in the Daily Diary of the Investigation Team vide Entry No,11, there is, however, no mention of delivery of receipt of any copy of the purported Entry Nos.30 or 31 in the said diary. It has been opined by the learned Senior Judge that the S.H.O. Mukhtar Ahmed Sario and the WHC have managed the purported Entry No,30 and 31 in the Daily Diary Register by subsequently inserting a fresh page therein. It is further noted that the paper containing Entry No,30 and 31 is distinguishable from the other papers/pages of the Daily Diary Register and that although on all the other pages of the said register seal of TPO is affixed on one side. However the paper/page in question bears the seal on both sides. It has also been noted that entries in the said register were being affected in duplicate on two separate papers one of which paper is left intact in the register while the other is torn off and is sent to the DPO office but there is no sign of any duplicate entry/paper in respect of the purported Entries Nos.30 and 31. The above are the reasons as recorded by the Additional District and Sessions Judge for his holding that Entry Nos.30 and 31 was subsequently managed by S.H.O. Mukhtar Ahmed Sario and WHO Abdul Rasool Sial after the police station has been visited by the Judicial Magistrate.
16. The learned Sessions Judge has submitted that there appears no mala fide on the part of the Magistrate and that no enmity is alleged against the Magistrate by the Police Officers. The learned Sessions Judge has thus concluded that the statement made by the SHO and affidavit filed by him before this Court are false whereas the report submitted by the Judicial Magistrate is correct.
17. ' As regards the injuries sustained by the detenu the learned Additional Sessions Judge has submitted that the S.H.O. In the purported Mashirnama of arrest of the detenu, which was prepared in the presence of his two police constable, has stated that the detenu, who had come to the Police Station for interrogation voluntarily, already had some bloodstains on his clothes and that the detenu has disclosed that while on his way to the Police Station he had slipped from the motorcycle and has sustained injuries. The learned Judge was however, not convinced with the explanation for the reasons that in case his motorcycle would have slipped the detenu would have suffered injuries on his hand and knees and not on his buttocks and further that contrary to the S.H.O's version, the medical officer. Noor Nabi Shah, who examined the detenu on his being released has also confirmed that the injuries suffered by the detenu were inflicted on him by violence/torture. The Medical Officer in his statement before the learned Judge, whilst describing the injuries and the nature thereof in detail, has categorically stated that the injuries on the person of the detenu were not caused by slipping from motorcycle but the same may be treated as mark of violence/torture. Furthermore the detenu in his statement before the learned Judge has also alleged that he was maltreated in the lock-up day and night with a "Suchpatra".
18. ' On 18-3-2002 this Court after perusal of the above report, ordered issuance of show-cause notices to S.H.O. Mukhtar Ahmed Sario and WHC Abdul Rasood Sial as to why proceedings may not be initiated against them and granted them two weeks time to submit their explanation. The said two police officers filed their respective reply through the learned Additional Advocate-General on 9-9-2002.
19. ' In his reply S.H.O. Mukhtar Ahmed Sario submitted as follows:-- "It is submitted that the respondent No 1 states and replies that the respondent No, l's statement already filed be treated as part and parcel of reply and further it is stated that there was entry of detenu and the respondent No,1 had taken the action according to law and there was theft of Government property and respondent No,1 had taken action according to law recover the Government property, there was F.I.R. And the Department has also given show-cause notice to the detenu and the Director General Health has given direction the name of detenu be mentioned in F.I.R.
20. ' That sir, if any found of undersigned is there, I pray for unconditional apology."
21. ' The SHO along with the above statement has also filed a number of documents including a show- cause notice dated 3-8-2002 from the Director-General Health Services Sindh requiring the detenu to show cause as to why disciplinary action should not be taken against him as recommended by the Inquiry Committee, which has found him involved in the theft of valuable medical equipment from Civil Hospital, Dadu and a number of other letters written by Civil Surgeon Dadu, D.G. Health Services and the District Police Officers for filing a F.I.R. Against the detenu for his involvement in the theft, for his arrest and for recovery of the stolen equipment, all such letters are of the dates after the learned Sessions Judge has submitted his aforesaid report, except for the letter from the Director-General Health requesting the Civil Surgeon Dadu to lodge F.I.R. Against the detenu which letter was written on the day the said report was submitted before the Court i,e, 27-7-2002.
22. ' The reply filed by the S.H.O. Is evasive and is completely unsatisfactory.
23. ' WHC Abdul Rasool Sial in his reply has submitted that he has no involvement in any offence of wrongful confinement and has no concern with the matter. He has further stated that the Daily Diary Entries Nos.30 and 31 were not made by him and the same were written by P.C. Haji Ahmed Sharif in his absence.
24. ' We have also perused the statements of all the police official including the S.H.O. And the WHC.
25. Dr.Munir Ahmed Abbasi, the Medical Officer, Civil Hospital, the petitioner and the detenu, as recorded by the learned Additional Sessions Judge during the course of the enquiry and have perused the documents produced by the deponents. The S. H.O. While producing the documents as mentioned in the report has stated that at 11-30 p.m. On 4-6-2002 when the Judicial Magistrate came to the Police Station he was taking dinner in his quarter and upon being informed of the Magistrate's arrival when he came to the Police Station he found that the Magistrate was dictating the contents of Entry No,40 to WHC Abdul Rasool Sial in the Waarandah and the petitioner and detenu were also sitting near him The S.H.O. Has further deposed that he informed the Magistrate that the detenu is arrested in Crime No,84 of 2002 under sections 457 & 380, P.P.C. And 14 H.O. And that such entry is available in the Daily Diary of the Police Station, the Magistrate, however, allowed the detenu to go away.
26. ' In his statement before the learned Additional Sessions Judge WHC Abdul Rasool Sial has alleged that the Magistrate got the detenu released from the lock-up before the S.H.O. Returned to the Police Station from his quarter after being informed regarding the same. He further alleged that the Judicial Magistrate did not enquire from him or the S.H.O. Regarding the arrest and detention of the detenu or of any entry in the Daily Diary and that the Magistrate has checked the diary himself.
27. ' In addition to what has been incorporated by the Sessions Judge in his report the petitioner in his statement recorded before the learned Sessions Judge had also stated that the detenu (who is the nephew of the petitioner) has sent a massage to him (the petitioner) through a constable to contact the S.H.O. As he was demanding money for his release and that when he met the S.H.O., the S.H.O. In fact sought money for the release of the detenu and upon his refusal, police constable Haroon and Leemu respondents 2 and 3 showed him out of the office of the S.H.O. And demanded Rs,50,000 so as to prevent them from maltreating the detenu and further demanded a payment of Rs,1,00,000 for the S.H.O. For release of the detenu. The detenu in his statement before the learned Sessions Judge has also alleged that money was demanded by police for his release and he was asked to inform his relatives regarding the same and to contact the S.H.O. For the purpose.
28. In view of the foregoing discussion it is now abundantly clear that the detenu was kept by the S.H.O.
29. Mukhtar Ahmad Sario in illegal confinement without any entry and without any Mashirnama and that the purported Entries Nos.30 and 31 dated 4-6-2002 in the Daily Diary Register were manipulated by the S.H.O. In clumsy attempt to avoid legal consequences of his illegal mala fide and despotic acts. The detenu was confined to the lock-up of the police station without any entry or record in clear violation of 'rule 22.48 of the Police Rules 1934, which rule essentially requires recording of the events of arrests and detention by police.
30. ' Even if the purported Entries 30 and 31 would have been recorded on the date and the time as claimed by the S.H.O. The detention of Noor Nabi Shah the detenu would have still been illegal as the said purported entries are of 4-6-2002 whereas, as claimed by the petitioner and as is also patently evident from the report dated 27-6-2002 sent by the Civil Surgeon Dadu to the learned Additional Sessions Judge (page 125 of the enquiry report) and also from the newspaper clipping of daily "Kawish" and "Shaam" dated 3-6-2002 (copies whereof are annexed to the petition and were also produced by the petitioner before the learned Sessions Judge, the detenu was arrested and detained at Dadu Police Station much before 4-6-2002, the date on which the purported Entries Nos.30 and 31 were allegedly incorporated . In the aforesaid report of the Civil Surgeon it is clearly stated that the detenu was in the custody of Police at Police Station Dadu since 28-5-2002.
31. To the same effect are various messages sent by the petitioner to the District Judge and other authorities, copies whereof were produced by the petitioner before the learned Senior Civil Judge, a copy of one such message is also annexed to the petition, presented before this Court on 4-6- 2002. Whereas on the other hand the S.H.O. In his statements filed before this Court and recorded by the learned Sessions Judge has not stated in categorical terms as to on what date he arrested the detenu or since when he was under detention with him. It is also crucial to note that even the F.I.R. 84/2002 regarding the theft of medical equipment from Civil Hospital Dadu where detenu was working as ECG Assistant was recorded at the police station on 1-6-2002 and thus the arrest of the detenu on 28-5-2002 and his detention up to 1-6-2002 was not only without any entry and/or record but was also without there being any F.I.R. Justifying such arrest or detention. From the finding of the enquiry report based on clear and strong evidence it is now absolutely clear that S.H.O. Mukhtar Ahmed Sario is not only guilty of keeping the detenu Noor Nabi Shah in illegal and unlawful confinement at the police station with mala fide and dishonest intent from 28-5-2002 up to 4-6-2002 when he was released by the Judicial Magistrate in pursuance of the order dated 4-6- 2002 of this Court and torturing and causing injuries to the detenu while the later was in his illegal and unlawful custody but is also liable for tampering the crucial police record. The S.H.O. Is also liable for committing perjury before this Court and also before the learned Sessions Judge by making false and misleading statements on oath and also for his attempt to obstruct the course of justice.
32. ' A Division Bench of this Court in the case of Mazharuddin v. The State reported in 1998 PCr.LJ 1035, which came up before the Court through an application under section 491, Cr.P.C., their Lordships having found that the detenu was kept in unlawful custody by the S.H.O. Of Police Station, while dealing with the question whether apart from the remedy that the detenu may have to collect damages through a civil suit or a direction that can be given for registration of criminal cases against the police officials responsible for his unlawful detention. Whether monetary compensation can be granted under the powers available to this Court under section 491,Cr.P.C. Of Article 199 of the Constitution, and after dilating upon the scope and amplitude of the powers of redressal available to the High Court under section 491, Cr.P.C. And Article 199 of the Constitution and after an elucidative and enlightening discussion on the various aspects of the matter have enunciated the following principles of law.
(i) When a Court finds that a person in custody was detained without lawful authority or in an unlawful manner, it could apart from directing his release, pass any appropriate incidental or consequential order as it may consider proper in the interest of justice under Article 199 of the constitution.
(ii) That the jurisdiction of this Court to grant relief under Article 199(I)(b)(1) or Article 199(1)(c) is not hedged by the limitation of English precedents or provision of Sub-constitutional legislation.
(iii) In case such detention prima facie amounts to a penal offence the Court could direct that the case against a person responsible for such unlawful detention may be registered and tried in accordance with the law.
(iv) An order merely directing the release of a person from custody upon finding his detention illegal and condoning the violation of his most cherished fundamental rights of liberty and dignity in defiance of the requirements of law and the Constitution may not be the appropriate relief to which such person may be entitled. Under the wide powers available to this Court under Article 199 of the Constitution it would be proper to award monetary recommendation to a victim of violation of fundamental rights.
(v) The liability to pay such compensation is in the nature of a public law duty as distinguished from the private law right of a citizen to claim damages in tort and can be enforced in proceedings under Article 199 of the Constitution. The amount of compensation paid or payable under these proceedings, however, will be taken into account by a Court subsequently trying a suit for damages.
(vi) That the amount of such compensation would be determined by the Court in its discretion keeping in view the principle applied in awarding general damages in case of false imprisonment and exemplary damages in cases of mala fide conduct of public officer under the law. Special damages sustained by a victim of unlawful imprisonment, however, can only be proved through ordinary civil suit. In accordance with the decision of this Court such compensation ought to be substantial and not nominal.
(vii) The liability to pay such compensation would devolve jointly and severally upon the State as well as the public officials responsible for illegally depriving a citizen of his liberty. The State Government however, would be entitled to recover for amount paid/payable to the detenu from such officials for having caused wrongful loss to the Government through misuse of powers under the relevant Service Rules applicable to such official instead of burdening the taxpayer.
(viii) In addition to the above the petitioner/victim may also be entitled to payment of actual, compensatory or deterrent cost apart from actual costs of litigation calculated according to the applicable Rules. Compensatory costs may be awarded and the official responsible for illegal action may be personally burdened with the liability to pay exemplary or punitive costs in terms of the law declared by the Honourable Supreme Court."
33. ' Their Lordship in the above case inter alia ordered payment of compensation to the detenu by the Govt. Of Sindh at the rate of Rs,5,000 per day for the period the detenu was kept in illegal detention and allowed recovery of such amount by the Sindh Government from the delinquent S.H.O. A further amount of Rs,10,000 was awarded by their Lordship in favour of the detenu and against the S.H.O. Towards the cost of the proceedings.
34. ' In another case reported in 1999 PCr.LJ 1209 (Agha Khuda Bux Advocate v. The State), where the detenu was held in custody at the Market Police Station for five days without any entry or record, a Division Bench of this Court, of which one of us (Ata-ur-Rehman, J.) was a member ordered the S.H.O. Responsible for the illegal detention toy pay Rs,5,000 as cost to the detenu and to deposit such amount with the Additional Registrar of the Court within 30 days. The Court also directed the S.S.P., Hyderabad to submit his report regarding the disciplinary proceedings against the S.H.O. And the S.I.P. Responsible for the illegal detention.
35. ' In the case reported in PLD 1999 Kar.134 (Ali Ahmed v. Muhammad Yakoob Almani), where it was held that the detenu was detained by the two S.H.Os. Of two different Police Stations illegally, a Division Bench of this Court of which one of us (Ata-ur-Rehman, J.) was a member, after an elaborate discussion and relying on more than 30 cases awarded cost and monetary compensation for such unauthorized detention at the rate of Rs,3,000 per day, to be jointly paid by the police officials who were held responsible for such detention, within a period of one month.
36. ' In another case reported in 2000 PCr.LJ 599 (Irshad Ali v. Abdul Hameed Khakhrani), a Division Bench of this Court whilst holding that the detenus were held by the SHO illegally and in excess of his lawful authority directed the concerned S.S.P. To lodge F.I.R. Against the S.H.O. And his other accomplices under section 220 and 343/34, P.P.C. And prther directed the S.H.O. To pay monetary compensation of Rs,3,000 each to the detenus within a period of 15 days.
37. ' In view of the above discussion we direct that:
(i) The S.H.O. Mukhtar Ahmed Sario shall pay to the detenu a sum of Rs,40,000 as compensation for illegally detaining him in Police Station Dadu for eight days and to pay to the detenu a further sum of Rs,10,000 towards cost of the proceedings. The amount shall be deposited by the S.H.O. With the Additional Registrar of this Court at Hyderabad within a period of 20 days from the date of this judgment and in the event the amount.Is not deposited by the S.H.O. Within the time prescribed the Government of Sindh shall deposit the same within a period of 30 days from the date of this judgment and shall deduct the amount so paid by it from the salary/emolument of the S.H.O. The amount so deposited shall be paid by the Additional Registrar to the detenu after proper verification.
(ii) The D.P.O. Dadu shall take appropriate disciplinary action against Mukhtar Ahmed Sario for his conduct in the above case.
(iii) The D.P.O. Shall also hold an inquiry in order to determine as to whether WPC Abdul Rasool Sial has committed any offence and/or has exceeded his authority in the above case.
(iv) The D. P.O Dadii shall also hold an enquiry in order to determine whether P.0 Haroon and P.0 Leemu of Police Station Dadu had any involvement in the arrest/detention of the detenu and whether they were also involved in torturing and manhandling the detenu.
(v) In the event any of the police officials named in (iii) & (iv) above are found to have conducted themselves in illegal manner and/or beyond their authority, D.P.O. Dadu shall take/initiate appropriate action against them.
(vi) Reports in respect of (ii), (iii) (iv) and (v) above shall be submitted by the D.P.O. Dadu before the Additional Registrar of this Court at Hyderabad within five weeks from the date of this judgment. The Additional Registrar shall place such reports before a Division Bench at Hyderabad.
(vii) The office is directed to have a copy of this judgment delivered to the S.H.O. Dadu forthwith.