Through instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has prayed for setting aside the order dated 11.10.2023 passed by the learned Ex- Officio Justice of Peace at Lahore, whereby I.G. Punjab, Lahore, was directed to proceed against the petitioner under section 155-C of Police Order 2002, after registering a case against him.
2. Per the office report, respondent No.2 has been served personally but has not opted to appear and contest the instant petition.
3. Learned counsel for the petitioner submitted that respondent No.2 filed a petition under section 491 Cr.P.C. without mentioning the specific name of the police station, and Bailiff was appointed to recover and produce the detenue before the court. Learned counsel further submitted that the petitioner took custody of the detenue from Lahore to Gujrat after fulfilling legal requirements.
Within 24 hours, the alleged detenue was required to be produced before the court. Learned counsel for the petitioner submitted that the learned Additional Sessions Judge, Lahore, has ignored the law on the subject and directed the I.G. Punjab to proceed against the petitioner.
Learned counsel for the petitioner lastly prayed for setting aside the impugned order dated 11.10.2023.
4. On the other hand, the learned law officer has placed on the record a report on behalf of respondent No.3/S.H.O along with copies of Rapts.
5. Heard. Record perused.
6. From the record available on the file, it reveals that respondent No.2 filed a petition under section 491 Cr.P.C. on 10.10.2021 for recovery/production and release of detenue, namely Mohsin Saleem (real brother of respondent No.2), confined in the illegal, unlawful and improper custody of the respondent (in habeas petition). Upon perusal of the petition under section 491 Cr.P.C., it was revealed that the name of the respondent's police station (in the habeas petition) had not been mentioned. Even in the contents of the petition under Section 491 Cr.P.C., and in the prayer clause, the respondent/police officials, Lahore, were mentioned. Upon this, learned Additional Sessions Judge, Lahore, issued direction for the recovery of Mohsin Saleem (brother of respondent No.2), who was allegedly confined by the respondent (in the habeas petition) illegally in the police station/police post/CIA Centre/private torture cell.
On 09.10.2023, Hafiz Muhammad Yasir S.I. arrested Mohsin Saleem (brother of respondent No.2) and incorporated Rapt No.16. After that, he informed the petitioner about the arrest of Mohsin Saleem (real brother of respondent No.2). Mohsin Saleem (brother of respondent No.2) name was figured in register No.4 of the police station. The petitioner is the investigating officer of the case FIR No.91/2023. The record of case FIR No.91/2023 registered under section 489-F PPC at P.S. A-Division Gujrat reveals that Mohsin Saleem (real brother of respondent No.2) is the nominated accused and declared proclaimed offender.
The petitioner incorporated his departure in case diary No.13 dated 10.10.2023 at 12:00 P.M. and, with the permission of the authority, proceeded to Lahore. After reaching Police Station Bhati Gate, Lahore, the petitioner took custody of Mohsin Saleem (real brother of respondent No.2), and formal arrest was affected. After that, the petitioner proceeded with Mohsin Saleem from the place of arrest to the Court of the Magistrate of police station Bhati Gate after incorporating Rapt No.15 dated 10.10.2023 at 03:10 p.m. for obtaining a transit remand. However, due to the closing of court hours, he could not get the transit remand of Mohsin Saleem (brother of respondent No.2). After that, Mohsin Saleem was produced before the Magistrate 1st Class, Gujrat on 11.10.2023, and judicial remand was accepted. Mohsin Saleem was sent to judicial lockup.
At this juncture, this court may point out that in a case where an accused is arrested and detained in the physical custody of the police, as mandated in Article 10 (2) of the Constitution of the Islamic Republic of Pakistan 1973 and Section 61 of the Code of Criminal Procedure, 1898, undoubtedly the accused cannot be detained in police custody for more than 24 hours.
Personal liberty is one of the cherished objects of the Constitution of the Islamic Republic of Pakistan 1973. The deprivation of the same can only be by the procedure established by law and in conformity with the provisions thereof, as stipulated in Article 10 (2) of the Constitution of the Islamic Republic of Pakistan 1973 which mandates that every person who is arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. A similar provision is found in Section 61 of the Code of Criminal Procedure, which also mandates that no police officer shall detain in custody a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable. In the absence of a particular order of a Magistrate under Section 167 of the Code of Criminal Procedure, such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. These two provisions reveal that without the authorization of a Magistrate, no arrestee shall be detained in the custody of the police beyond 24 hours from the time of arrest, excluding the time taken for the journey from the place of arrest to the Court. In this regard, there could be no controversy that when an accused is detained in police custody after arrest beyond 24 hours, excluding the time taken for the journey from the place of arrest to the Court, such detention beyond the said period is undoubtedly illegal.
The entry in Rapt No. 16, dated 10.10.2023, reveals that the bailiff arrived at the police station at 03:30 p.m., whereas Rapt No.15, dated 10.10.2023, shows that at 03:10 p.m., the petitioner took the custody of Mohsin Saleem (brother of respondent No.2) and proceeded to the court of Magistrate for getting its transit remand for the journey from the place of arrest to the Magistrate's Court.
Whether or not the bailiff met with the petitioner (investigating officer) cannot be substantiated by any other material available on the record. The bailiff has mentioned in its report that the petitioner already took custody of Mohsin Saleem-accused through Rapt No.15 dated 10.10.2023, and he directed the petitioner/investigating officer, being bailiff, to produce the accused before the court of learned Additional Sessions Judge on 11.10.2023 at 10:00 a.m. The bailiff has not attached any document revealing that he met with the petitioner at police station Bhati Gate and how he came to know that the brother of respondent No.2 was detained at police station Bhati Gate, as the bailiff straightway proceeded to police station Bhati Gate from court. In the last paragraph of the report, the bailiff mentioned that the petitioner (in habeas petition) received a phone call that, due to the closing of court, the petitioner could not get transit remand for the journey from the court of proclaimed offender/detenue and left Lahore in private car and the information received by respondent No.2 through someone, the same was forwarded to the bailiff and the bailiff made it part of the report and placed before the learned Additional Sessions Judge, Lahore. The bailiff attached documents (Rapts), i.e., Rapt No.15 dated 10.10.2023 and Rapt No.16 dated 09.10.2023, revealing that before reaching the bailiff at police station Bhati Gate, the petitioner took the custody of Mohsin Saleem and left the police station Bhati Gate at 03:10 p.m. The documents mentioned above and the contents of the bailiff report reveal that the bailiff has not brought the true picture before the Court. Ex. Officio Justice of Peace, Lahore, against the spirit of law mentioned in the impugned order that "Muhammad Waqas A.S.I P.S A-Division Gujarat could wait till today for availing transitory remand of the alleged detenue for shifting him from Lahore to Gujarat and then produced him before the court concerned failing which he committed an illegality for which he must be accounted for." As is mandated under Article 10 (2) of the Constitution of the Islamic Republic of Pakistan 1973 and Section 61 of the Code of Criminal Procedure, for getting authorization from the Court for detention, either in judicial custody or police custody, the accused has to be physically produced before the Magistrate under Section 167 of Cr.P.C., is the law which regulates and empowers a Magistrate to authorize the detention of the accused either in police custody or in judicial custody, as the case may be.
7. By passing the impugned order, Ex-Officio Justice of Peace had traveled beyond his jurisdiction under Section 22 A, 22-B of Cr.P.C. Consequently, I accept this petition, set aside the impugned order dated 11.10.2023, which is declared illegal, void, ab-initio and without lawful authority and the application filed by Fahad Saleem, respondent No. 2 stands dismissed.