' ALI NAWAZ CHOWHAN, J--This is petition under section 491 of the Cr.P.C. Allah Rakkhi, the complainant in this case, alleged that she was old and poor and was earning her livelihood by keeping cattle. Her son Ghulam Hussain was married to the daughter of one Murid Aliand' her daughter was married to the son of one Falak Sher. Against both a case of dacoity was registered and the police was set to involve all the relations in the case. That actuated with this desire, the police have taken into custody most of their relations. But as there was no complaint against the petitioner, her husband and her three sons Ghulam Hussain, Shaukat Ali and Alam Sher, they were excluded from being detained.
2. However; on 16-8-1999 at 5 a.m., Mian Muhammad, Akram, S;-1. Police Station Toba Tek Singh came to her house along with about 16 Constables. They raided the house after trespassing having scaled over the wall of the house .. Shaukat Ali, Alam Sher sons of the petitioner and Allah Bakhsh her husband, were taken into custody while Ghulam Hussain, their son, was already in their custody. That while doing so, they. Also took away cash amounting to Rs, 7350 after a search. The police .While taking the detenus, told them that they were being taken for assistance for recovery of the dacoits in the case already registered. That they also took away their cattle which were tethered near the Police .Station.
3. Previously, they had filed a petition under section 491 of the Cf.P.C. Against the police harassment and the Superintendent of Police Toba 'Tek Singh had initiated an inquiry against the S.H.O. It was alleged that S.H.O., Police Station Gojra, against whom the present petition was. Filed, was a relation of the S.H.O. Of P.S. City Toba Tek Singh, and the raid was conducted by the S.H.O. Revengefully. That police had also fired shots for causing harassment. The theft of a bicycle at. The hand of the police was also part of the allegation.
4. A Bailiff of this Court was deputed to procure the presence of the detenus who submitted his report on 10-9-1999, The Bailiff had been informed that the detenus had been arrested vide Rapt No: 16 of 8-9-1999 by Shaukat Ali, A.S.-1., op the basis of an application trade by one A Abdul Sattar on 28-8-1999 expressing suspicion against the detenus in case F .. I.R. No.101, dated 3-4-1998 under sections 458/380 of Police Station Gojra. According to the Bailiff; the application, so mentioned, was not on the case file of the F.I.R. No. 101 of 1998. He also discovered while examining the Register of F.l.R. That the .Case F.I.R. No.
101. Of 1998 had been filed on 29-10-1998 vide case Diary No.19 of the same date with the observation that being an untraced case it was . 'being filed. He was, however, not shown the original police record in the Case No.101' of 1998. The Bailiff doubted the rapt No. 16 for 'reasons .
Which he. Has reflected in the . Report. In the opinion of the Bailaiff~ the rapt was bogus and had been made reflecting the arrest of the accused as a cover up. Where is their arrest should have been also . Reflected in 'the police file of the relevant case. That the rapt also did not explain as to why they were arrested. He also discovered that the Roznmacha, dated 8-9-1999 had not been closed since 7-9-1999 ..
5. The detenus were produced in the Court on .10-9-1999 in the presence of the counsel -for the petitioner; Ch: Muhammad Bashir Assistant Advocate General who had been specially called for assistance as well as Hassan Khan, S.H.O. Of Police Station, Sadar Gojra and Tanvir Ahmad Khan the Bailiff.
6. A perusal of F.l.R. No.101 of 1998 reflects that a case was registered on 3-4-1998 art Police Station Gojra and related to an incident of dated 1-3-1998. This was registered under sections 458 and 380, P.P.C. On the statement of complainant Abdul Qadir, caste Sial, resident of Chak No.362/JB, Gojra, and the alleged incident is stated to have taken place in the same Chak at a distance of about 5 miles towards the east of the Police Station. A relevant except from this F.l.R. Reads as follows=-
7. The detenus, present in the Court, appear to be having a different description qua the description given in the F.I.R. The husband of the petitioner, anyhow, was an aged person and the colors of his sons were dark. No identification parade had been. Conducted nor there was any evidence shown about their identity by the complainant of the F.l.R. .. No.101 of 1998 or any of his relations. The S.H.O ..
Was asked to justify as to how he was detaining the present detenus, whose identification . Patently differed with the description given in the F.l.R. Of this case. To which he had no cogent answer.
'Keeping in view the circumstances of the case and the liability of S.H.O. To justify the arrest/detention of the detenus, this Court on the basis of an undertaking given by the detenus, set them at liberty and later adjourned case for ascertaining the scope of section 54 of the Criminal Procedure Code and the powers of the police through this detailed order. Because it is a common complaint that this power is being misused badly and with impunity by the police without any check except where a petitioner who can afford a lawyer, takes the matter before the High Court.
8. Section 54 of the Cr.P.C. Reads as under:-- "When police may arrest without warrant:---
(1) Any police officer may, without any order from a Magistrate and without a warrant, arrest:--- ' firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned; ' secondly, any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house breaking; ' thirdly, any person who has been proclaimed as an offender either under this Code or by order of the (Provincial Government); ' fourthly, any person in whose possession anything is found which may reasonably be suspected to be stolen property (land) who may reasonably be suspected of having committed an offence with reference to such thing; ' fifthly, any person who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; ' sixthly, any person reasonably suspected of being a deserter from (the Armed Forces of Pakistan); ' seventhly, any person who has been concerned in, or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been concerned in, any act committed at any place out of (Pakistan), which, if committed in (Pakistan), would have been punishable as an offence, and for which he is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in (Pakistan); ' eighthly, any released convict committing a breach of any rule made under section 565, subsection (3); ' ninthly, any person for whose arrest a requisition has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the other officer who issued the requisition."
9. The provisions of sections 54, 55 and 109 of the Cr.P.C. Are of preventive nature. These give the powers of arrest to the police for C prevention of crime.
10. Whereas the idea of free detention is alien to our law. But free detention is a prevalent and infamous practice of our police giving rise to the need for structuring the discretion bestowed on the police under section 54 of the Cr.P.C.
11. It is said that where law ends, tyranny begins. It is also said that where law ends, discretion begins. But discretion cannot be allowed to be used as an instrument of tyranny or for unjust and unreasonable pursuits in a society governed by a Constitution and Islamic norms and Islamic Jurisprudence.
12. The necessity has arisen because despite the provisions of section 220 of the P.P.C. Which provides a punishment for misuse of powers exercised under section 54 of the Cr.P.C., there is scant check against the misuse of police powers under its provisions. Section 220 of the P.P.C. Reads as follows:-- "Commitment for trial or confinement by person having authority who knows that he is acting contrary to law.
' Whoever, being in any office which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously commits any person for trial or confinement, or keeps any person in confinement, in the exercise of that authority, knowing that in so doing he is acting contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
13. Section 54 of the Cr.P.C. Confers very wide powers to the police with a purpose that it may act swiftly in the prevention or detection of a cognizable offence without having to go through the formality of obtaining magisterial orders of arrest which may cause delay. However, the arrest and detention of persons without warrant cannot be left to caprice but has to be covered by rules and principles of law.
14. The arrest of persons without justification is one of the most serious encroachment upon the liberty of a subject (AIR 1926 Pat 560). Whereas section 54 of the Cr.P.C. Grants powers of arrest in a cognizable case, it also imposes an obligation for avoiding mistaking of the innocent for the guilt.
15. In the case of Dumbell v. Roberts, 1944, 1, All ER 326, C.A., it was said that the police should always act while assuming, such powers on the assumption that prima facie their suspicion may be ill- founded. In the case of Dathson v. Caffery, 1964, 2, All ER, 610, it was observed that when a constable was taking into custody a person reasonably suspected of committing a crime, it is his duty to act reasonably.
16. In the case Ghulam Ali v. The State (PLD 1959,(W.P.) Lah. 669), it was observed:-- "The Investigating Officer has no authority in law to detain any person summoned to give a statement with regard to the commission of an offence. The Investigating Officer may also summon and detain any person who has been concerned in the commission of a cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned without an order from a Magistrate and without a warrant. If the police officer takes action under section 54 of the Criminal Procedure Code, then the arrested person must be produced before a Magistrate within a specified time (section 61 of the Cr.P.C.) and remanded to custody by the Magistrate also for a specified time. The police officer has no jurisdiction, after he has once arrested a certain person, to release him, except by following the procedure laid down in section 169 of the Criminal Procedure Code. I have not come across any provision of law under which a person can be detained by the police on the pretext of keeping him "Shamil-i-Tafteesh". This is to all intents and purposes a wrongful confinement and the police officers resorting to it clearly commit an offence as defined in section 342 of the Pakistan Penal Code. This practice which is very much in vogue in this country and which affords a very good opportunity to the police to commit atrocities must be uprooted and stopped at once. It has no legal sanction behind it. The Investigating Officer if he suspects a person to be concerned in any cnijizable offence can arrest such a person and then release him, under section 169 if he finds that his suspicions were not well founded.
17. In the case Sheikh Zahoor Ahmad v. The State (PLD 1974 Lahore 256), it was observed:-- "After hearing both the parties, it has become certain that the arrest of the petitioner in the matter of complaint made by Ghulam Farid is imminent and he, for that reason, is under virtual restraint. I am further satisfied that in the circumstances of this case the technique of keeping the formal registration of the case in abeyance has been developed by some ingenious mind in the police investigating agency in an attempt to prevent the Courts exercising jurisdiction, on the technical plea of 'non-registration of the case' and/or 'lack of proof' of imminent arrest. The rule of law as also its arm in this country is not so ineffective as to permit parties frustrate lawful procedures and remedies in this manner. The conditions with their underlying principles laid down by the superior Courts for pre-arrest bail have been misunderstood by the police. The formal registration of a case is not a sine qua non for arrest of an accused and/or for investigation of a cognizable case. Section 54, Cr.P.C., and provisions in this behalf are clear and need no comment."
18. In the case of Mst. Fatima Bibi v. Muhammad Iqbal, A.S.-I. Police Station Sharaqpur (1988 MLD 483), it was held:-- "Mr. Iqbal, S.-I. Has frankly submitted that due to his preoccupation in the election he could not make an entry in the Rozenamcha and he had obtained the remand to justify the detention of the detenus. The S.-I. Further submitted that the detenus were required in at least 52 cases of theft the dacoity as according to the police officer, the detenus had made certain disclosures. I am not convinced with the truth of the allegation that only for the last six days, the detenus were in custody. The method to justify the detention has been innovated on the basis of list of untraced cases. This is usual method with the police to arrest any one under section 54 of the Criminal Procedure Code and then to make them to join the investigation into the untraced. Cases. Any way this subject will be dealt with at the propose time.
' Since the detentidn of the detenus prima facie is without any legal justification, therefore, I set them at liberty but they and directed to join the investigation into the disappearance of Mst.
Sakina."
19. A perusal of section 54 firstly reflects that the arrest of a person concerned in any cognizable offence is not left at the sweet-will and caprice of the police officer. The following conditions have got to be fulfilled.
(a) There should be a reasonable complaint.
(b) There should be credible information.
(c) There should be reasonable suspicion against him.
20. Section 54 empowers a police officer on the basis of a requisition from another police officer provided the requisite specification; the person to be arrested, the offence or cause for which the arrest is to be made are given as well as the grounds for his lawful arrest without a warrant.
21. As what is a credible information and what are the limitation placed on a police officer exercising such wide powers bestowed on his under section 54 of the Cr.P.C. It was said in the case of Abdul Qayyum v. The S.H.O. P.S. Shalimar, Lahore (1993 PCr.LJ page 94):-- "As the powers mentioned above given to the Police Officers under section 54, Cr.P.C. Encroaches upon the liberty of a person, this wide power has to be construed, interpreted and defined strictly. A general definition of what constitutes reasonableness in a complaint or suspicion and credibility of information cannot be given. Both must depend upon the existence of tangible legal evidence within the cognizance of the Police Officer and, he must judge whether the evidence is sufficient to establish the reasonableness and credibility of the charge, information or suspicion. It has been laid down by this Court in 1992 PCr.LJ 131. 'An arrest which is beyond the provisions of section 54, Cr.P.C. Would be illegal and void per se'.
22. As to what was reasonable suspicion. The guidance has been provided in the case of Muhammad. Shafi v. Muhammad Boota, etc., .(PLD 1975 Lah. 729), in the following words:- "The words 'reasonable suspicion' do not mean a mere vague surmise, but a bona fide belief on the part of the police officer that an offence has been committed or is about to be committed such belief has to be founded on some definite averments G tending to throw suspicion on the person arrested. The secret information that the alleged detenue 'used to commit such like offences' was, in no way sufficient to believe that he was concerned with the commission of the offence and the exercise of power under section 54, Cr.P.C., be the respondent was totally uncalled for. The action of a police officer under section 154, Cr.P.C. Must be guarded inasmuch as he should first satisfy himself about the credibility of the information whiles stated already, should relate to definite facts.
It was not at all the intention of the law-giver that the police officer should at his own sweet will arrest anybody he likes, although he may be a peace-loving citizen of the country. I have no doubt whatsoever that the action of the respondent in arresting Muhammad Arshad in this case was based not only on merely a vague surmise but for a mala fide intention to displace the averment that he was being kept in wrongful confinement by the respondent since, the 9th of October, 1973.
The arrest of Muhammad Arshad by Muhammad Saleem Butt, A.S-I. Under section 54, Cr.P.C. Was a wrongful detention."
23. In the case Muhammad Siddique v. The Province of Sindh (PLD 1992 Karachi 35), a Division Bench of the Sindh High Court with the Hon'ble present Chief Justice of Pakistan Mr. Justice Saeed- uzZaman Siddiqui as one of the Judges, clarified the powers and duties of the police officers on arrest of a person or suspected of having committed a cognizable offence under section 54 etc. Of the Cr.P.C. In the following words:-- "Section 54, Criminal Procedure Code authorises a Police Officer to arrest a person without an order or warrant from a Magistrate under nine situations mentioned in its nine sub-clauses. First sub- clause is relevant and is reproduced below:-- "(54) When Police may arrest without warrant.---(1) Any Police Officer may, without an order from a Magistrate and without a warrant, arrest--firstly, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of his having been so concerned."
' It will thus be seen that under the first sub-clause of section 54(1), Criminal Procedure Code a person can be arrested without a warrant in the following circumstances:--
(a) If he be concerned in any cognizable offence.
(b) Against whom a reasonable complaint has been made.
(c) Against whom credible information has been received that he is, concerned with commission of such offence.
(d) If reasonable suspicion exists about him being so concerned. It is true that a Police Officer has been conferred sufficient powers to arrest a person in the investigation of a cognizable offence if he be concerned with commission of such offence. But such a power can be exercised only in those cases where a Police Officer is possessed of some evidence indicating involvement of a person under the four situations mentioned in section 54(1) Criminal Procedure Code.
' In most of the cases under consideration before us, we noticed that the Police Officer arrested the persons without collecting any material connecting them with commission of the offences mentioned in the pending 'Blind F.I.Rs'. Such person were being kept in custody without legal justification as no material was shown to us which could reasonably connect their arrest in those cases. Not only that in Criminal Miscellaneous No, 98 of 1991 we were shocked to note that the petitioner was arrested by the Police on a mere verbal order of some agencies and his arrest was continued under similar verbal order from time to time. The petitioner's arrest was shown one after the other in number of 'Blind F.I.Rs,'. It is equally disgusting to note that a senior Police Officer examined by us in the case, in spite of knowledge of above unjustified arrest of petitioner took no action to mitigate the suffering of the petitioner. Such acts of arrest can only be termed as unlawful being directly the result of arbitrary exercise of power vested in Police Officer under the law. We are also of the view that Police Officer responsible for such acts cannot claim any protection under the law as these acts cannot by any reasoning be described as bona fide and in appropriate proceedings they can be punished for these excesses. We however leave it to the Govt. Of Sindh to deal with such delinquent officers and take appropriate disciplinary action against them and the aggrieved persons will also be free to take any action according to law that they may be advised.
' It is abundantly clear from the provisions contained in the Criminal Procedure Code that once a person concerned or suspected to have committed a cognizable offence is arrested by a Police Officer it is expected of him that he would complete the investigation within any loss of time and at best complete the investigation without 24 hours of his arrest as laid down in section 61 ibid. Every Officer in charge of a Police Station is required by section 62, Criminal Procedure Code to report to the concerned District Magistrate or if directed by him to the sub-Divisional Magistrate about the arrest of persons without warrant within their territorial limits. Such reports when made by in charge of a Police Station to the District or Sub-Divisional Magistrates is not a matter of sending greeting to them but report is sent to such Magistrates so that they can scrutinize the arrests made by Police Officers and find out if the action can be justified in law. They are excepted to carefully examine and even inspect Police Lock-ups to prevent abuse of power by Police and illegalities committed by them in effecting arrest by themselves. If the District Magistrates in the Province act diligently, kept the record of arrest by Police under their vigilance we are sure that many cases of excess committed by the Police will come to an end."
24. In the case of Nazeer Ahmad v. The State (1970 SCMR 7), the scope of sections 54 and 56 came under consideration and it was observed:-- "Under section 54 of the Code of Criminal Procedure a Police Officer may arrest any person without a warrant who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists of his having been so concerned. The scope of sections 54 and 56 is, wholly different. While the authority to arrest under section 54 is limited to the conditions laid down in clauses first to ninthly, the power to arrest under section 56 without warrant is subject to the requirement only of a written order by a senior police officer specifying the offence or other cause for which arrest is to be made. As against these provisions section 54(1) clause first requires that the person to be arrested is concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received etc."
25. The case law has given the test for arresting an accused under section 54 of the Cr.P.C. The test requires the following conditions:--
(a) Involvement in a cognizable offence.
(b) Reasonable complaint.
(c) Credible information about involvement.
(d) Reasonable suspicion about him being so involved.
26. Unfortunately, these requirements are not met. This has given a free hand to police and is a constant threat to citizens against the wide powers and their misuse at the end of the police.
Unfortunately, there is no accountability against misuse of these powers, When an illegal free detention is challenged under section 491 of the Cr.P.C., the detenus are just set at liberty and the matter ends there.
27. The recurring/happening of such incidents further reflects that police as an institution does not wish to voluntarily place a check on such misuse of powers, rather takes it as a part of its strength and authority. Otherwise, the superior officers would not be allowing such frequent abuse of powers by the subordinates. This is a big challenge to the rule of law and therefore a need has arisen for structuring these powers through legislative actions in our pursuits for rule of law in this country and for a more civilized society.
28. In the case of Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14), the meaning of the phrase, structuring discretion is given as follows:- "Structuring discretion means regularizing it, organizing it, producing order in it, so that decisions will achieve a higher quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair informal procedure. When legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules. The movement from vague standards to definite standards to broad principles to rules may be accomplished by policy statements in any form, by adjudicatory opinions, or by exercise of the rule-making power. When. Legislative bodies delegate discretionary power without meaningful standards, administrators should develop standards at the earliest feasible time, and then, as circumstances permit, should further confine their own discretion through principles and rules."
29. In this connection the Ministry of Justice can take into consideration the incorporation of similar provisions in our criminal code as section 50 of the Indian Criminal Code of Procedure, 1973, which reads as follows:-- "Person arrested to be informed of grounds of arrest and of the right to bail. Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.
(2) Where a police officer arrest without warrant any person other than a person accused of non- bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf."
30. An additional provision through the rules can be made for displaying the provisions afore- mentioned at prominent places/a notice board, in bold letters outside every police station for creating public awareness.
31. As a matter of fact, no invocation has been brought out by the afore-mentioned section 50 of the Indian Procedure Code. In the United States, the decision of the Supreme Court of the United States in the famous Marinda case has laid down the law inter alia requiring that a person upon his arrest is to be immediately informed of the reasons of his detention. He is to be medically examined and allowed to make two free telephone calls to anyone informing him but his whereabouts. After the judgment in the Marinda case, the U.S.A. Govt. Has set up a body parallel to the office of the District Attorney for purposes of providing legal guidance to the defendants in criminal cases who cannot otherwise afford a counsel. The Legal Aid Societies working in our system have not been able to come up to the task of safeguarding the legitimate rights of the people as they have not been able to invariably provide quality legal assistance. Even otherwise the defence counsel who are appointed in murder cases at the State expense, do not invariably show any extraordinary performance. Therefore, the burden falls on the State to fill in the vacuum by adopting some of the principles enunciated in the Marinda case for ensuring justice to the teeming millions who suffer on account of the misuse of discretion and misuse of authority in this country.
32. The Circle In charge who is DSP and the Superintendent of Police do not inspect police stations nor do they check with interest the various registers pertaining to a Thana. They have to be reminded of their obligations in this respect. One way of doing this would be of making their promotions conditional on the basis of the inspections they may have carried out. A frequent and meaningful inspection by the DSP could make a lot of difference.
33. Anyway, in the meanwhile, this Court would like to direct all the Station House Officers in the Punjab to send on daily basis a report to their Judicial Illaqa Magistrates reflecting the names and addresses of persons who although not nominated in the First Information Report have been detained in exercise of powers under section 54 of the Cr.P.C.
34. Correspondingly, all the Judicial Ilaqa Magistrates are directed to obtain these reports on a daily basis from the respective police stations under their control. The Sessions Judges are also to be burdened because of their supervisory role and who may ensure implementation of these / directions by the Judicial Ilaqa Magistrates:
35. Since subordinate judicatory is to give effect to this judgment both in letter and spirit for the good and welfare of the people, it is desired that the Registrar/Deputy Registrar (Judicial) of this Court circulates the copies of this judgment to all the Sessions Judges in the Province for compliance.