1. ' ARSHAD SIRAJ MEMON, J.---Through this application filed under section 491-A, Cr.P.C, prayer was made that one Abdul Jabbar has been illegally detained by the police officials of Police Station, New Pind, Sukkur. The matter was taken upon on 1-7-2009 and Reader to this court was appointed as Commissioner and thereafter matter was taken up again for further orders and following order was passed on 1-7-2009: "Reader of this court was appointed as commissioner and his report shows that alleged detenu Abdul Jabbar was detained in the bathroom of the lock-up of Police Station, New Pind, Sukhur and his custody was called for. His handcuffs have been unlocked. Ali Murad Abbasi, S.H.O., Police Station, New Pind, Sukhur, has appeared along with the detenu and he states that there is no case against alleged detenu Abdul Jabbar and he does not know anything about Rs,98,500 that were allegedly taken from Abdul Jabbar. The detenu has stated in court that Inspector Sarfraz Mangi was police officer who had arrested him and taken him to the police station along with two other policemen.
2. ' Considering the unlawful act of the Police officer concerned a case be registered against the police officers at the police station by the Duty Officer on the directions of this court under the provisions of law; such as section 155-C and D, section 342, P.P.C., and for robbery of amount of Rs,98,500 that was forcibly taken away by the police officers of Police Station, New Pind, Sukkur.
3. ' The applicant along with detenu Abdul Jabbar are to appear in court on 2-7-2009 for further proceedings and if so found, compensation will also be awarded to the detenu. The amount of Rs,98,500 robbed from detenu be returned to him till 2-7-2009 in front of the court.
4. ' Adjourned to 2-7-2009."
5. Today the matter was taken up when the officials of the said police station were present and detenu who was released yesterday was also present. It may be stated that yesterday the detenu had alleged that he was illegally confined to detention and an amount of Rs,98,500 was snatched from him by the persons who had allegedly arrested him. Today in presence of three police officials namely Inspector Sarfraz Hussain. Mangi (under suspension) of Police Line, Sukkur, S.I.P., Ali Murad Abbasi, S.H.O., Police Station, New Pind and A.S.I. Malik Sultan Ahmed of Police Station, the detenu made statement that these three police officials had not arrested him but somebody else had arrested him and had robbed Rs,98,500 from him and the said person is not present in court. On query of the Court the S.H.O. Ali Murad Abbassi had made statement that on 1-7-2009 that there was no case against the detenu Abdul Jabbar. He reconfirmed his statement today that there is no case against the detenu, however, he showed his ignorance that as to how such detenu was detained and by whom.
6. ' We have considered the case from all angles. It is an admitted fact that the detenu was illegally detained by the police officials of Police Station, New Pind, Sukkur and the S.H.O. Has reconfirmed in the court today that the detenu was not required in any case.
7. ' We are of the firm view that under Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 every citizen has an inalienable right to be treated in accordance with the law and to enjoy the protection of law. Further, under Article 9 of the Constitution of Islamic Republic of Pakistan, 1973, no person shall be deprived of life or liberty save in accordance with law. Article 10 provides against arrest and detention, it provides that no person who is arrested shall be detained in custody without being informed as soon as may be of the ground for such arrest and every person who is arrested and detained in custody, shall be produced before a Magistrate within 24 hours of such arrest excluding the time necessary for journey from the place of arrest to the court of nearest Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Article 14 provides that the dignity of man and subject to law the privacy of home shall be inviolable. We are guided by our above observations from the case of Government of Sindh v. Raees Farooq 1994 SCM R 1283.
8. ' Admittedly, in this case the fundamental rights of the detenu Abdul Jabbar have been violated by the police officials and, therefore, they have to be dealt with in accordance with the law laid down by the Hon'ble Supreme Court of Pakistan and of this Court ' In this regard reference can also be made to a judgment of learned Division Bench of this court in case of Mazharuddin v. State 1998 PCr.LJ 1035, which was also a case of illegal detention in which entire gamut of law was examined by the Hon'ble Division Bench of this court and following principles were deduced in para 54. The principles are reproduced in extenso for ready reference and convenience.
9. "54. From the above rather long drawn discussion we would like to summarise our conclusion on the legal question as under:--
(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)(i) or Article 199(i)(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 illegally 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 re-compensation to a victim of violation of fundamental rights.
(v) The liability to pay such compensation is in the nature of 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 it's 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 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 the 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 taxprayer.
(viii) In addition to the above the petitioner/victim 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 Hon'ble Supreme Court."
10. In view of the above guidelines in the present case the detenu was illegally detained on 28-6-2009 by the police officials of Police Station, New Pind, Sukkur, without any case against him. In view of the above all the police officials of B the Police Station, New Pind, Sukkur are directed to personally bear the costs of compensation of Rs,5000 per day which will be deposited within 30 days from today with the Additional Registrar of this Court and the Additional Registrar is directed to disbursed the same to the detenu.
11. ' During the course of the proceedings today, it transpired that the person who had arrested the detenu illegally and had allegedly robbed detenu of an amount of Rs,98,500 was not present and three officials present today denied that they had robbed such amount and the detenu himself made statement before this court that these three personnel were not involved in such snatching of the amount.
12. ' On 1-7-2009 order was passed by Division Bench consisting of Mr. Justice Salman Ansari, J. And one of us Mr. Justice Arshad Siraj Memon in respect of registration of case against the police officials concerned, the following order was passed:-- "Considering the unlawful act of the police officer concerned a case be registered against the police officers at the police station by the Duty Officer on the directions of this court under the provisions of law; such as section 155-C & D, section 342, P.P.C., and for robbery of amount of Rs,98,500 that was forcibly taken away by the police officers of Police Station, New Pind, Sukkur."
13. ' In view of facts narrated in preceding paragraphs, it was deemed necessary and appropriate to modify the above order in the following manner and terms:-- As observed above the police personnel who detained the Abdul Jabbar detenu was not present in the court in our view responsibility rests on the S.H.O., concerned who was even unaware who detained Abdul Jabbar, being S.H.O., such state of affair is C deplorable, as such case against him be registered on the directions of this court under the provisions of law including as section 155-C of Police Order, 2002 and section 342, P.P.C., without fail with intimation to the Additional Registrar of this court.
14. ' So far as the person who detained the detenu, the S.P. (Investigation), Sukkur is appointed as Investigation Officer who may ascertain the responsible person who illegally detained the detenu Abdul Jabbar and after such ascertainment he is directed to register case against such person under the provisions of law including section 155-C of Police Order, 2002 and section 342, P.P.C., without fail under intimation to this court through Additional Registrar within 15 days of the receipt of this order. All the police personnel posted at Police Station, New Pind from 27-6-2009 to 1-7-2009 are directed to appear before the Investigating Officer as and when called. The Investigating Officer should keep in mind the statement of S.H.O., New Pind, Sukkur which was made before the court to the effect that he was unaware about the person responsible for illegally detaining Abdul Jabbar when he was posted as S.H.O./Incharge of Police Station, New Pind, Sukkur.
15. In respect of recovery of amount allegedly snatched/robbed from the detenu, the S.P.
16. (Invesgation), Sukkur is appointed as Investigating Officer for ascertaining the facts whether such amount was taken away from the detenu and if finding is in affirmative, the Investigating Officer is directed to recover such amount from person who took the amount and pay to the detenu. For such investigation, all the officials of Police Station, New Find, Sukkur posted from 27-6-2009 to 1-7- 2009 are directed to appear before the Investigating Officer as and when required by such Investigating Officer. The Investigating Officer is directed to start his investigation with 7 days of the receipt of this order and complete such investigation within 15 days and submit report to the Additional Registrar of this court. The Additional Registrar after receiving such report is directed to place it before the Division Bench of this court immediately.
17. ' We may record our deep appreciation to the assistance rendered to the court and fairness shown by learned Additional Advocate-General Mr. Liaquat Ali Shar in the present case.
18. ' Office is directed to immediately send a copy of this order directly to S.P. (Investigation), Sukkur for compliance.
19. ' This Criminal Miscellaneous Application No,' D-l59 of 2009 is disposed of in above terms.