Rauf Ahmed Sheikh, J.--Through the instant writ petition under Article 199 of the Islamic Republic of Pakistan, 1973 read with Section 491 Cr.P.C, the petitioner has prayed for an order to recover, produce and set at liberty his son Ghulam Abbas.
2. It is stated that the detenu and one Ghulam Akbar had allegedly made murderous assault on the Police contingent and case FIR No. 51/11 dated 01.03.2011 under Section 7 of the Anti-Terrorism Act, 1997 Police Station Kala, District Dera Ghazi Khan, was registered against them. He contended that, in fact, the local Police injured Ghulam Abbas, arrested him on 01.03.2011 and got him admitted in DHQ Hospital, Dera Ghazi Khan, for treatment and he has been in Police custody since then but his arrest was not entered in the record as was transpired by the order of the learned Judge, Anti- Terrorism Court, Dera Ghazi khan, whereby the bail application was returned on the ground that he was not formally arrested. It is urged that since then he is under illegal detention on the basis of false allegations. It was asserted that in the inquiry conducted by DIG Police, Punjab Highway Patrolling, Lahore, it was held that the version of the Police regarding encounter was false.
3. The District Police Officer, Dera Ghazi Khan and SHO Police Station, Kala, District Dera Ghazi Khan, were directed to submit the report/parawise comments. The SHO, Police Station Kala, contended that the son of the petitioner, namely Ghulam Abbas and his co-accused Ghulam Akbar made indiscriminate firing on the Police party so the firing was also made by the Police contingent in self- defence. Finally, the above mentioned persons were over-powered and case FIR No. 51/11 dated 01.03.2011 under Sections 324/353/186/34 PPC read with Section 7 of the Anti-Terrorism Act, 1997 was registered against them. The challan against Ghulam Akbar has been submitted in the Court, whereas Ghulam Abbas sustained an injury on his right leg and suffered bone fracture -so was got admitted in DHQ Hospital, Dera Ghazi Khan, from where he was referred to Nishter Hospital, Multan, but now has been again sent to DHQ Hospital, Dera Ghazi Khan, where he is under treatment. It was stated that his condition is not good so he could not be arrested and remanded to judicial custody and as such is kept under surveillance in the Hospital and would be arrested as he is required by the Police. He DPO, Dera, Ghazi Khan, has also Stilted similar facts. However, he has not denied the contention of the petitioner that DIG Police, Punjab Highway Patrolling, Lahore, had held that the Police version is false and has been concocted in order to get the cash prizes.
4. The perusal of the record clearly reveals that Ghulam Abbas son of the petitioner was apprehended in an injured condition on 01.03.2011 and thereafter he was sent to the Hospital where he is kept under surveillance. If an accused is apprehended and kept in the Jail under the guard, it cannot be said that his arrest has not been made. Section 46 of the Code of Criminal Procedure, 1898, provides that if the Police Officer touches or confines the body of the accused or the accused submits to the custody by word or action, he would be deemed to have been arrested. In this case, the Police apprehended Me detenu and then kept him in the Hospital under surveillance so they cannot say that the arrest was not made and was deferred. Even otherwise the claim of the Police is that he is involved in the commission of heinous offence so neither the investigation could have been postponed under Proviso (b) of Section 157 Cr.P.C. nor his arrest could have been deferred under Chapter 26.2 of the Police Rules, 1934. Even if he was in injured condition, he Should have been formally arrested and dealt with under Chapter 26.25 of the Police Rules, 1934. In these circumstances, the contention of the Police officers that they had postponed the arrest is totally devoid of force and patently illegal. The fact of the matter remains that he was apprehended at the spot on 01.03.2011 and has been kept under illegal detention against the law/Rules as the arrest was not formally entered in the record. He cannot be deemed to be under lawful or proper custody.
5. For the reasons supra, the writ petition is accepted and the detention of Ghulam Abbas son of the petitioner is declared illegal. He be set at liberty. If he is required in any case for commission of the cognizable offence, he may be arrested in accordance with law and thereafter be produced before the Magistrate within 24 hours as provided under Section 61 Cr.P.C. The RPO, Dera Ghazi Khan, is, directed to proceed in accordance with law/Rules against the Police officers/officials for keeping him under illegal detention for such a long time. He will submit report regarding action taken through the Deputy Registrar (Judicial) of this Court within four weeks.