1. ' NADEEM AZHAR SIDDIQI, J.---Office objection has been complied with.
2. Granted for the time being subject to all just exceptions.
3. The petitioner has filed this petition stating therein that she has married with Miandad on 16-12- 2006 with her own freewill and her father has lodged false F.I.R. No.133 of 2006 dated 13-12-2006 under sections 11/18 Zina Hudood Ordinance, 1979. She further states that her 164 statement was recorded before the Magistrate in which she had stated that she was not kidnapped and has solemnized marriage with her free-will. The petitioner has affirmed before us that she was neither kidnapped nor subjected to any Zina.
2. ' During the course of proceedings the learned counsel for the petitioner has filed photo copies of two more F.I.Rs. Bearing No.139 of 2006 and 8 of 2007, out of which F.I.R. No.139 of 2006 was registered on the behest of the father of the petitioner against four relatives of the husband of the petitioner and another F.I.R. No.8 of 2007 lodged on 18-2-2007 under section 18 of Zina Hudood Ordinance, 1979, which was registered on the behest of Mst. Hakeem Khatoon, who is said to be relative of the petitioner is an aged woman of more than fifty years having four children against Ghulam Hussain alias Gulloo son of Alain Mangnejo, Masti Khan son of Haji Khan Mangnejo, Azizullah alias Bago son of Wali Muhammad Mangnejo and Naeem son of Haji Khan Mangnejo. In the F.I.R. She alleged that her husband expired 8/9 years back and on the day of incident, she along with her son aged 6 years was cutting grass when above accused persons attempted to commit Zina with her.
3. ' The respondents Nos.3, 4 and 5 have filed their statements and acknowledged the registration of F.I.Rs. And arrest of accused persons in Crime No.8 of 2007.
4. ' During the pendency of the proceedings Muhammad Azeem father of the petitioner has stated that he will not harass the petitioner and has also recorded his statement before the police in F.I.R.
5. No.133 of 2006 stating therein that he has forgiven the accused, persons and will not initiate any action against them.
6. ' Today the three accused arrested in Crime No.8 of 2007 are present in Court and have stated that they were arrested by S.-I. Abdul Sami Waseer. Out of three one namely Naeem Ahmed was arrested on 19-2-2007. Azizullah was arrested on 26-2-2007 and Masti Khan was arrested on 4-3- 2007. It was also stated that one Amanullah was also arrested but he was released by the said S.I.
7. After accepting bribe of Rs.10,000. S.-I. Abdul Sarni Waseer has agreed to return that amount to Amanullah. S.-I. Abdul Sami has submitted that arrest was made by A.S.-I. And not by him. The detenus have disputed such statements and state that they were arrested by S.-I. Abdul Sami Waseer. We have no reason to disbelieve the version of the detenus. The detenus have submitted that they were arrested in a false case and prayed that the F.I.R. May be quashed and they may be released. We have taken the judicial notice of F.I.R. And heard the arguments of the learned Additional A.-G. And the learned counsel for the petitioner.
8. ' Learned Additional A.-G. Has informed that F.I.R. No.133 of 2006 was disposed of under 'C' class and challan was submitted in F.I.R. No.139 of 2006 and the accused persons are on bail and F.I.R. No.8 of 2007 is under investigation. F.I.R. No.8 of 2007 was registered under section 18 of Zina Hudood Ordinance. The said section was repealed by virtue of Act-VI of 2006 and is no more available in the statute book and no prosecution can be lodged A under a provision of law which was repealed.
9. Not only the F.I.R. Was lodged but three innocent persons were also arrested and are in custody due to carelessness and negligence of the police officers.
10. ' Mr. G.D. Shahani learned Addl. A.-G. States that mere mentioning of wrong section is not sufficient for quashing the F.I.R. And the contents of the F.I.R. Are to be considered and in terms of section 156- B, 'Cr.P.C. The matter may be referred for investigation to a Superintendent of Police. This section provides that no Police Officer below the rank of Superintendent of Police shall investigate an offence under the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 and the accused shall not be arrested B without permission of the Court. The Police Officer present in Court has failed to produce any warrant or permission from the competent Court for the arrest of three accused persons. The learned Additional A.-G. And the Police Officers have failed to point out any specific provision of law under which an F.I.R. Can be registered on the allegation of attempt to rape, He simply requests that for going through the provisions of P.P.C. Some time may be allowed, which was declined, keeping in view the urgency in the matter.
11. From the above, it is clear that a false F.I.R. Has been registered by theA.S.-I. Barkat Ali Bhatti of Police Station, Pirjo Goth as informed by the S.H.O. Muhammad Abbass Bajwa of Police Station 'Pirjo Goth. No doubt the F.I.R. Was registered by A.S.-I. But S.H.O. Who is present in Court cannot escape from his liability being an Incharge of that Police Station and he is responsible to over see the action of his subordinate staff to be in conformity with the law. The S.H.O. Has failed to perform his official functions with care and diligence and cannot claim total ignorance of the same. Similarly S.-I. Abdul Sami without application of his mind and without going through the law has arrested the three innocent persons who are in custody till today. Both these officers have deprived of the innocent citizens from their valuable right of liberty. In view of the position that now section 18 is no more available on the Statute Book and was repealed by virtue of Act VI of 2006 the registration of F.I.R. Is itself illegal and the arrest made by the police in consequences of registration of an illegal F.I.R. Is also .Illegal and cannot be sustained. The registration of F.I.R. Under a provision of law which is not available is clearly an abuse of process of law and there is no possibility of conviction of accused persons and we have no option but to quash the F.I.R. No.8 of 2007 of Police Station, Pirja Goth, which is accordingly quashed and the persons who were arrested are directed to be released forthwith if not required in any other custody case. Now the question before us is what action is to be taken against the delinquent officers who were responsible for registration of false F.I.R. And causing illegal arrest of the detenus. In a number of reported cases which came up before the Courts, where the detenus were found in unlawful custody were directed to be released and the cases were ordered to be registered against the delinquent officers and monetary compensation was ordered to be paid to the detenus.
12. ' The learned Additional A.-G. Has submitted that F.I.R. Was registered in good faith without any malice on the part of police officers as they were not aware about the repeal of section 18 of EHO
(Zina) Ordinance, 1979. The ignorance of law is no excuse and the police officers can not D take shelter under it and are liable for action for their illegal action.
13. Admittedly the three persons were deprived of their valuable right of liberty and the dignity of the detenus has been ' violated in breach of law. Even if the contention of learned Additional A.-G. Is to be considered no arrest in a case registered under the provisions of Enforcement of Hudood (Zina) Ordinance, 1979 can be made without the permission of the Court. The action taken by the police without due care and caution and in disregard of law of land is mala fide and cannot be said to be in good faith.
14. Article 9 of the Constitution of the Islamic Republic of Pakistan, 1973 provides that no person shall be deprived of life or liberty save in accordance with the law, There are several reported cases in which the Courts while dealing cases of illegal detention under section 491, Cr.P.C. Has allowed compensation. Reliance is placed on reported case of Ali Ahmed v. M. Yakoob Almain (PLD 1999 Kar. 134) and Syed Hasan Ali Shah v. Station House Officer, Police Station, Dadu (PLD 2006 Kar. 425) have granted compensation to the persons who were kept in unlawful custody by the police officers. In the reported case of Mazharuddin v. State (1998 PCr.LJ 1035) a learned Division Bench of this Court while dealing a petition of Habeas Corpus under Article 199 of the Constitution of Pakistan in its judgment authored by Sabihuddin, J has held that High Court under the wide powers under Article 199 of the Constitution can award monetary compensation to the victims of violation of fundamental rights. The learned Division Bench further held that amount of 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. Since the action of the police officers has caused humiliation and mental torture to the detenus and their illegal arrest has resulted in undue expenses the police officers present in Court are liable to compensate the three persons. The persons who remained in illegal police custody are entitled to Rs.5,Q00 each for every day they remained in custody from both of the police officers i.e. SIP Abdul Sami Waseer and .SIP Muhammad Abbas Bajwa present in Court. Naeem Ahmed was arrested on 18-2-2007 and remained in custody for 17 days is entitled to compensation of Rs. 1,70,000. Azizullah was arrested on 26-2-2007 and remained in custody for 10 days and he is entitled to compensation of Rs.
15. 100,000. Masti Khan was arrested on 4-3-2007 and remained in custody for 3 days and he is entitled to compensation of Rs.40,000. Both the police officers present in Court shall deposit the said amount in Court within fifteen days from today. In the meantime both the police officers will execute personal bond in the above said amount before the Additional Registrar of this Court. The S.-I., Abdul Sami Waseer will also deposit a sum of Rs. 10,000 which he has obtained as bribe from Amanullah, within the above stipulated period.
16. ' The conduct of the above police officers is against the public policy and we direct that they may be immediately removed from the post of- S.H.O. And S.I.O. And in future they may not be assigned any field posting at-least for the next three years. The D.P.O. Shall submit compliance report within one week. The p detenus are free to claim damages by way of filing of the suit and they may also lodge I F.I.R. Against the delinquent officers for their illegal detention.
17. Petition stands disposed of.