Khuda Dad Bhatti, petitioner filed this habeas corpus petition under Section 491 Cr.P.C. on 19.5.2009 for the recovery and production of his father Rai Atta Muhammad, from the alleged illegal detention and confinement of the D.S.P. Chanab Nagar, S.H.O. Police Station Barana and Muhammad Sharif, Investigating Officer of the said police station. The petitioner alleged that a case F.I.R. No, 196 dated 28.4.2009 under Sections 302/324/34 P.P.C. was registered at Police Station Barana, Distt. Jhang against his brother Naeem Dad alias Raza Haider; that the alleged killer did not make himself available for investigation, upon which the respondents arrested his father Rai Atta.
Muhammad Bhatti afore-mentioned on 14.5.2009, and detained him in the lock up of Police Station Barana, despite the fact that he was not required to be arrested in the above said murder case against his son Naeem Dad alias Raza Haider. A Bailiff of this Court raided Police Station Barana on 19.5.2009 at 8.45 p.m. and found Rai Atta Muhammad detained in Police Lock up. The detenue disclosed to the Bailiff that he had been arrested by Muhammad Sharif, Sub Inspector, the S.H.O. and other Police officials from his residential `Dera' on 14.5.2009 and since then he had been confined/lodged in lock up. The Moharrer informed the Bailiff that Muhammad Sharif, Sub Inspector arrested Rai Atta Muhammad on 18.5.2009 at 9.10 a.m. in the above said murder case and got him detained in police lock up the same day at 10.30 a.m. against Daily Diary/Rept No,
4. The Bailiff examined the police record and found. that Rai Atta Muhammad had been arrested by Muhammad Sharif, Sub Inspector, twice in the above said murder case. His arrest had been shown against Serial No, 4 dated 18.5,2009 and Serial No, 5 dated 19.5.2009 of Daily Diary.
2. The Bailiff has produced the detenue before this Court today. Muhammad Sharif, Investigating Officer of the above said murder case, the S.H.O. and the D.S.P., respondents herein, have also entered appearance. Muhammad Sharif, Sub Inspector/ Investigating Officer has stated that he arrested Rai Atta Muhammad in the above said murder case on the charge of abetment in the light of supplementary statement of the complainant and got him detained in police lock up the same day at 10.30 a.m. and that his apprehension was incorporated in the Daily Diary at Serial No, 4 dated 18.5.2009, copy Marked-A. When asked as to how and with what authority he re-arrested Rai Atta Muhammad in the same case at 11.15 a.m. on 19.5.2009 and got entered his re-arrest in the Daily Diary at Serial No, 5 dated 19.5.2009, copy Marked-B, Muhammad Sharif, Sub Inspector/Investigating Officer is possessed with no answer. The D.S.P. Chanab Nagar and S.H.O.
Police Station Barana are also not in a position to support and defend apprehension of Rai Atta Muhammad for two times in the same case.
3. On 18.5.2009, Muhammad Sharif, Sub Inspector/Respondent No, 3 arrested Rai Atta Muhammad without warrant in the above said murder case on the charge of abetment and got him detained in the police lock up the same day at 10.30 a.m. as observed above. He did not produce the arrested accused before a Magistrate within 24 hours of his arrest and instead re-arrested him in the same case on 19.5.2009. To be treated in accordance with law, is constitutionally guaranteed right of every citizen of this Country. Article 9 of the Constitution of Islamic Republic of Pakistan provides that no person shall be deprived of life or liberty save in accordance with law. The Constitution guarantees against any attack on life or liberty of a person. In Pakistan personal liberty of an individual stands secured and guaranteed under this fundamental right. An important legal question which requires consideration is as to whether Muhammad Sharif, Sub Inspector deprived Rai Atta Muhammad of his fundamental right of liberty in accordance with law as laid down by Article 9 of the Constitution. The answer is in negative. Article 10(2) of the Constitution and Section 61 of the Code of Criminal Procedure, 1898 clearly provide that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of 24 hours of such arrest and no such arrested person shall be detained in custody beyond the above said period without the authority/special order of a Magistrate. Muhammad Sharif, Sub Inspector arrested Rai Atta Muhammad on the charge of abetment on 18.5.2009 and got him detained in police lock up at 10.30 a.m. He was, therefore, bound to produce Rai Atta Muhammad before a Magistrate before expiry of the statutory period of 24 hours, which expired on 19.5.2009 at 10.30 a.m. Failure on the part of Muhammad Sharif, Sub Inspector to comply with the requirement of Article 10 of the Constitution and mandatory provisions of Section 61 Cr.P.C. made the detention of Rai Atta Muhammad in police custody illegal and without lawful authority. Muhammad Sharif, Sub Inspector adopted a novel proceaure unwarranted in law to nullify and frustrate the mandate of Article 10 of the Constitution and Section 61 Cr.P.C. Instead of producing the arrested accused before a Magistrate before expiry of prescribed period of 24 hours, Muhammad Sharif, Sub Inspector rearrested him in the same case on 19.5.2009 at 11.15 a.m. This unholy and illegal device adopted by the Sub Inspector must be deprecated. It needs little application of legal and judicial mind to conclude that the forgoing mandates of the Constitution and the law of the land have not been adhered to, therefore, detention of Rai Atta Muhammad by the respondents in the police lock up has become illegal and without lawful authority since expiry of prescribed period of 24 hours.
4. This Court has already held in Shah Nawaz and Ranjhoo v. The State (NLR 1996 CrLJ 116) that a person arrested in a case of cognizable offence registered against him, cannot be re-arrested in another case of cognizable offence, during the period of his 24 hours detention with the police. It is shocking to note that Muhammad Sharif, Sub Inspector arrested and re-arrested Rai Atta Muhammad in the same case within 24 hours and 45 minutes, without producing him before a Magistrate. I am pained to say that till date no action on administrative side has been taken or initiated against Muhammad Sharif, Sub Inspector by the S.H.O., D.S.P. and the Distt. Police Officer.
This is an extreme example of misuse of official position and authority. Muhammad Sharif, Sub Inspector adopted a self styled procedure for apprehension and detention of an accused of cognizable offence over and above the law and the Constitution of the Country. The need of the time is to nip the evil in the bud. This is high time to dispel common impression amongst the masses that police is not amenable to law of the land or that fundamental right of liberty is not available to the lay man. Supremacy of law cannot be achieved without elimination of the police whim-factor in the administration of criminal justice. Without unqualified allegiance to rule of law, the police-whim-factor dominated and self styled procedure of investigation of criminal cases and apprehension of accused are not going to be of much help for improvement of the system. No doubt, the subject of investigation of criminal cases comes within the exclusive domain of the police, but this Court shall not allow the police to blind fold the criminal justice system. It is primary duty of this Court to take effective steps to safeguard legal rights of the people and the system.
Without building checks on arbitrary exercise of powers by the police officials, which they have been exercising in a crude and brute form since long, no improvement in the system can be expected. Fortunately, opportunity to make good the lost prospects still exists provided further violation of constitutional provisions and mandatory provisions of the law is stopped with iron hands.
5. Now adverting to the case in hand, it has already been concluded in the preceding paragraph that Atta Muhammad was confined and detained by Muhammad Sharif, Sub Inspector illegally. He is, therefore, set at liberty, however with the clarification that the investigating agency would be at liberty to prosecute him in the above said murder case strictly in accordance with law and this order would not adversely affect the cause of the prosecution in that case.
6. Muhammad Sharif, Sub Inspector played havoc with the administration of criminal justice. For the foregoing reasons I impose penal costs of Rs, 25,000/- on him. A copy of this order shall be sent to the learned Sessions Judge, Jhang for recovery of the penal costs from Muhammad Sharif, Sub Inspector by adopting the procedure meant for, execution of money decree. The realized amount shall be deposited under the Head of Account of Fines and Forfeitures.
7. The D.S.P. and the S.H.O. failed to perform their duty as supervisory officers. They are directed to remain careful in future in performance of their official functions and duties.
8. This Court has nothing to do with the posting and transfer of the police officials. However, criminal justice system cannot be and should not be left to the mercy of the police officials like Muhammad Sharif, Sub Inspector. Here I must say that such like police officials are festering sour and constant threat to the system. A copy of this order shall, therefore, be sent to the Inspector General of Police, Punjab, Lahore requiring him to relieve Muhammad Sharif, Sub Inspector of field duty forthwith, under intimation to the Addl. Registrar (Judicial) of this Court.