' MAZHAR IQBAL SIDHU, J---Petitioner as being the benighted mother of Majid, Wajid and Sajid the detenus has instituted the instant petition under section 491, Cr.P.0 for their recovery who have allegedly been taken away on 31-1-2012 at about 7-00 a.m. By the respondents and unknown police officials detail of the same has been mentioned in paragraph No,2 of the petition, the same is reproduced as follows:-- "that on 31-1-2012 at about 7-00 a.m. When the petitioner and other women folk and detenu Nos.2 and 3 were present at the house of Sajid detenue, House No,602-F, Gulshan Ravi Lahore, all of a sudden respondents Nos.2 and 15/16 unknown police officials who were riding on Vego Dalla bearing Nos.LEB-9544, LEB-205 and Corolla XI( No,LEA-3369 forcibly entered into the house of the detenu No,3 (Sajid), where they forcibly took the detenus Nos.2 and 3 with them and they also took cars of the detenus being No,LEA-07-6477 Honda Accord, LEB-07-7931 Honda V-lac with them towards the dera of respondent No,2."
2. On the same day, the instant application was instituted and came up for hearing before this Court, as prayed for, bailiff of the Court was deputed for the recovery and production of the detenus before the Court on 1-2-2012. On 1-2-2012 Muhammad Imran bailiff of the Court appeared in the Court and showed his failure in accomplishing the task assigned to him, thereafter, S.H.O., Police Station Shera Kot was directed to appear before the Court on 3-2-2012.
3. On 1-2-2012 again a . Criminal Miscellaneous application bearing No,268-M of 2012 was filed and the same was entrusted to this Court on 2-2-2012 through which addition of respondents/Members of Anti-Car Lifting Staff was sought for
(i) S.P.
(ii) Salim DSP
(iii) Muhammad Ali Inspector ' On the same day the said application was allowed. On 3-2-2012 the bailiff appeared along with his report; the same is reproduced as follows:- "In compliance with the orders dated 2-2-2012, passed in the above noted case, I was deputed as bailiff to recover and produce the following three alleged detenus from the illegal and improper custody of respondent No,2/DSP (Anti Car Lifting) Lahore:--
(i) Majid
(ii) Wajid
(iii) Sajid ' I, therefore, along with the petitioner visited Police Station Qila Guitar Singh at 5-50 p.m. On the same day for the recovery of the above named three alleged detenus. After necessary introduction and getting Daily Diary Register (Roznamcha) in my custody, I immediately searched out the alleged detenus who all were found confined in Police Lockup.
(iii) The alleged detenus Majid stated that Faisal Sharif/S.H.O. Along with other police officials arrested him from his House No, 529, situated in Block 'Al' Sabzazar Lahore on 4-1-2012 and since then he was in police custody. He further stated that during this police custody, he had been kept on different places. He also complained of tortured at the hands of police and also showed marks of violence on his body. He added that he was produced before the Court of learned Judicial Magistrate Lahore Cantt., on 1-2-2012 and that police also have taken his Motorcycle bearing Registration No,LEA-77 Model `Ravi'.
(iv) The alleged detenu Wajid stated that Faisal Sharif/S.H.O. Had arrested him from his `godown' situated at Sardar Chappel, Bilal Gunj Lahore on 31-1-2012 at 1-30 a.m and since then he was in police custody. He was produced before the Court of learned Judicial Magistrate Lahore Cantt., on 1-2-2012. He also complained of tortured at the hands of police, however, could not show any sign of violence on his body.
(v) The third alleged detenu Sajid stated that Faisal Sharif along with other police station had arrested him from his house situated at Block 'F' House No,602, Gulshan Ravi, Lahore at 4-00 a. m, on 31-1-2012 and since then he was in police custody. He was produced before the Court of learned Judicial Magistrate Lahore Cantt., on 1-2-2012. He also complained of tortured at the hands of police, however, could not show any sign of violence on his body. He further stated that the police had also' taken two cars in their possession one belonging to his brother Zahid bearing Registration No,LEA-6477 and other belonging to him bearing Registration No,LEA-7931.
(vi) On the other hand, Respondent No,2/DSP (Anti-Car Lifting) was not present in the Police Station Qila Gujjar Singh, Lahore. However, Allem-Ullah Moharrar informed that all the three alleged detenus were arrested on 31-1-2012, vide Rapat No,57 by Muhammad Jamil Inspector in two cases F.I.R. No,90 of 2012 Registered under section 9(c), C.N.S.A. Being the nominated accused wherein they have been ordered to be on Judicial Remand and in F.I.R. No,798 of 2010, registered under section 394 P.P.C. On the supplementary statement of the complainant wherein there are on Physical Remand up till 4-2-2012 by orders of learned Judicial Magistrate Lahore Cantt., (copies of F.I.Rs, enclosed at Flags/`A & B'.
(vii) I checked the Police Record and found the facts stated by the Moharrar at para 6 above are correct, accordingly. Therefore, I did not take the alleged detenus in my custody being formally arrested by the police. Copy of notice served upon Moharar is attached herewith.
(viii) Report is submitted for kind perusal of the Hon'ble Court."
' The detenus have been produced by Jamil Incharge (Investigation) and Allah Rakha S.I.
(Investigation) and Jamil Incharge (Investigation) has placed on record facsimiles of two F.I.Rs, bearing No, 798 dated 19-6-2010 registered at Police Station Qila Gujjar Singh District Lahore on the written complaint of Adnan Qazi under section 394, P.P.C. Against unknown freebooters and F.I.R.
No,90 dated 31-1-2012 under section 9(c) of the C.N.S.A 1997 registered at Police Station, Qila Gujjar Singh on the complaint of Allah Rakha S.I (Investigation) of the said Police ' Station, the same is reproduced in vernacular as follows:- -{{URDU TEXT}}{{TABLE}}
4. Learned counsel for the petitioner submits that the S.I has falsely involved the detenus along with their real brother Sajid and two more namely Tanvir Abbas alias Teera and Muhammad Inamul- Haq in order to frustrate the proceedings of the instant petition and to show his extra efficiency whereas when firstly the bailiff visited the given place for the recovery of the detenus on 31-1-2012 nothing of the sort as to involvement of the detenus in any case was shown to him or brought to his notice; had there been any case against them registered on 31-1-2012, the F.I.R. Of the same would have been shown or seen and at least its number might have been supplied to the bailiff but nothing of the sort was there. It has been submitted that on 1-2-2012 after the failure of the bailiff again a Miscel laneous Application bearing No,268-M/12 in the main petition under section 561-A, Cr.P.0 was filed on 1-2-2012 which was entrusted to this Court on 2-2-2012 seeking permission to implead three more respondents/members of the Anti-Car Lifting Staff as:--
(i) S.P.
(ii) Salim DSP
(iii) Muhammad Ali Inspector On the same day, the application was accepted; the bailiff was deputed for the recovery and production of the detenus for 3-2-2012 and in this way the malevolence of the police prima facie appears on the record to involve the detenus along with others in a case of capital charge with ferocity as well as devilry and hideously. Learned counsel for the petitioner submits that it has not been denied that real brother of the detenus namely Muhammad Sajid allegedly implicated in a criminal case but it does not mean that whole family is involved. It has been maintained that detenu Sajid runs a business papers and he is a tax payer but the police, because of the ulterior motive has made the life of the whole family of the petitioner extremely miserable.
5. After this situation the proceedings were shortly adjourned directing to Allah. Rakha S.I to produce any Law Officer from his Department and the case again shall be taken up after "Juma" piayer. When the case was called for the second time Syed Ijaz Hussain. Shah DSP Legal (Investigation) along with the above mentioned police officials appeared before the Court and submitted that a sometime may be granted by assigning the investigation of the instant case to any upright high police official so that the matter may be thrashed out but when the whole situation was brought to his notice he failed to satisfy the Court rather again solicited , as mentioned op-cit. Learned private counsel for Allah Rakha S.I raised arguments but ultimately he showed lack of knowledge anent the case. Anyhow he also made a request for producing time nothing more. The detenus have also been personally heard.
6. After hearing the learned counsel for the petitioner. Learned DSP Legal (Investigation) as well as learned counsel of Allah Rakha S.1 and going through the record available before the Court it has gone unrebutted the detenus were picked up on 31-1-2012 at 7-00 a.m as mentioned in paragraph two of the petition and after the issuance of process by this Court they have been found booked in a case registered vide A F.I.R. No,90 dated 31-1-2012 at about 8.35 p.m. At Police Station Qila Gujjar Singh, Lahore. Record throws up that if the detenus would have been found involved in the case then copy of the F.I.R. Or its number or any other material showing involvement of the detenus would have been brought in the notice of bailiff or the Court but there was nothing by that time.
' It is apparent that after the failure of the bailiff in his first visit the police have made up a false case entailing capital charge. It is A regrettable that the police have involved innocent detenus in false cases in which they can be sentenced to death by passing over the liability of accountability before the Almighty Allah and regardlessly the fear of bottomless pit.
7. For what has been discussed above, the court is of the considered view that F.I.R. No,90 dated 31- 1-2012 registered at Police Station Qila Gujjar Singh is false and based upon malevolence and is a counter product to the process issued by the Court initiated in the instant habeas petition, therefore, custody of the detenus is hereby declareu illegal and Unlawful, hence they are set at liberty in a trice and the F.I.R. As well as the proceedings emanated of it are hereby quashed by exercising inherent powers vested to the Court.
8. The case is adjourned for further proceedings on 17-2-2012.