'The petitioner Muhammad Siddique moved the present application (Criminal Miscellaneous No,31/H of 1989) against Raja Mumtaz DSP and Muhammad Aslam, S.I. Of C.I.A. Staff, Rawalpindi, alleging inter alia that they are illegally detaining Anwar Khan, who is not needed in any crminal case. This application was presented to the Deputy Registrar of this Court at 8.55 a.m. On 31-5-1989 and the learned Senior Judge passed an order on the same day at 11.25 a.m. Entrusting the case to me. I vide my order of even date directed that a bailiff of this Court be deputed to recover the alleged detenu and produce him before this Court on 3-6-1989. In pursuance of the said order, Muhammad Ashraf Bailiff of this Court went to C.I.A. Staff, Rawalpindi and found that Muhammad Aslam S.I. Had detained Anwar Khan in hand-cuffs in his room.
2. On 3-6-1989, the case was placed before the learned Senior Judge, who was pleased to order that it should be placed before me day after tomorrow i,e, 5-6-1989.
3. During the course of hearing of this petition, I recorded the statements of the respondents, the petitioner, the detenu and other witnesses in order to find out the true position. It would be useful to give brief resume of the statement of bailiff who gave the first account when he reached the C.I.A.
Staff. Statement of Muhammad Ashraf bailiff was recorded on 26-6-1989 and he also submitted his report Exh.P.C. Which he prepared giving details of the raid. He stated that on 31-5-1989, at about 1- 20 p.m. He reached the C.IA. Staff and introduced himself to Muhammad Arif Muharrir and asked him for the daily diary (Roznamcha) who handed over the same to him. He checked the Roznamcha and found that there was no entry showing the detenu under arrest. Then on the pointation of the petitioner he recovered the detenu from the room of Muhammad Aslam S.I. He was in hand-cuffs, one end of the Hathkari was on the hands of Anwar Khan and the other was attached with the Charpoi. According to him the detenu was handed over to him at 4.45 p.m. And that too on the direction of respondent No,1 and in between this time he was got medically examined by the police and his medico-legal report has been placed on the file as Exh.P.A. He also deposed that Muhammad Arif Muharrir of the C.I.A. Staff tried to snatch the Roznamcha from him.
After the recovery, the bailiff handed over the detenu to the petitioner with the direction that he should produce the detenu in Court on the next date of hearing.
4. I recorded the statement of Anwar Khan detenu on oath on 5-6-1989, wherein he deposed that he was arrested on 29-5-1989 by Muhammad Aslam Si. (respondent No,2) from New Katarian, where he had gone to drop his children who were studying in the school and he remained in the illegal detention of the aferesaid S.I. Till he was recovered by the bailiff of this Court on 31-5-1989.
He further deposed that during this time he was not produced before any Magistrate. He testified that the police got him medically examined on 31-5-1989 at 2.45 p.m. Vide medico-legal report Exh.PA and later on he got himself medically examined from the Medical Officer, Holy Family Hospital, Rawalpindi and placed on record the second medico-legal report as Exh.P.B.
' In order to clarify the position, Raja Mumtaz, D.S.P. Was examined by me on 5-6-1989. In his statement he deposed that on his verbal instructions, the investigation of case F.I.R. No,313/88, dated 12-11-1988 P.S. Wah Cantt. (which was already pending with the C.IA.) was entrusted to Muhammad Aslam S.I. He further deposed that he directed Muhammad Aslam S.I. That he should diligently investigate the case as the superior officers were pressing him very hard for the recovery of the stolen property as the offence was of serious nature. He conceded in his statement that the detenu was arrested in case F.I.R. No,313/88, but his arrest was not shown in the daily diary. The D.S.P. Then made a supplementary statement before this Court on 21-6-1989, elucidating certain points which came before the Court on account of the statements of other witnesses examined in this connection. His statement is to the effect that the bailiff informed him (D.S.P.) that he has recovered the detenu. He deposed that police officials could not show the arrest of the detenu in the daily diary due to short of time and then he deposed:- "In spite of that I handed over the detenu to the bailiff."
' He explained that by way of abundant caution he got the detenu medically examined before handing him over to the bailiff (with the consent of the bailiff).
5. Muhammad Aslam S.I. Respondent No, 2 was examined by me on 5-6-1989. He deposed that he arrested the dctenu on 31-5-1989 at 5.00 a.m. From Chowk Pir Wadhai in Case No, 313/88, dated 12- 11-1988, under section 458 PPC read with section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Wah Cantt. Under section 54, Cr. P.C. He deposed that he mentioned this fact in the Zimni and he got the dctenu medically examined on 31- 5-1989 before handing him over to the bailiff of this Court vide medico-legal report Exh.PA. He conceded that the aforesaid F.I.R. Did not contain the name of any person and the case was transferred to the C.I.A. Staff on the application of Raza Muhammad, father of the complainant, dated 12-12-1988. He deposed that the case was received in C.IA. Staff on 1-1-1989 under the order of the S.S.P. Rawalpindi and this file was entrusted to him on 15-5-1989, by the order of the D.S.P.
Respondent No,
1. He denied the suggestion that he had been keeping the detenu in illegal detention since 29-5-89 and had maltreated him. He also deposed that he arrived at C.IA. Staff with the detenu at 1-15 p.m. On 31-5-1989 and further disclosed that a case under section 13 of the Arms Ordinance was registered at P.S. Pir Wadhai Rawalpindi at 7-45 a.m. Vide F.I.R. No,118 dated 31- 5-1989. To a court quesion he stated that he wanted to make the arrest of the detenu in case F.I.R.
No,313/88, whereas initially he stated in his statement that he arrested the aforesaid detenu under section 54 Cr. P.C. He stated that he had not mentioned the fact of recovery of gun as he was not asked.
6. Muhammad Arif Head Constable was examined on 5-6-1989. He deposed that on 31-5-1989 at 1.20 p.m. The bailiff of this Court reached the C.IA. Staff, Rawalpindi aifd he took into possession the daily diary and there was no entry regarding the arrest of the dctenu in case F.I.R. No, 313/88 dated 12-11-1988, P.S.Wah Cantt. He admitted that the bailiff took the Roznamcha in his possession without disclosing his identity and he tried to snatch the Roznamcha from him.
7. The next witness examined was Sardar Ghulam Medhi Khan, Inspector/SHO Police Station Pir Wadhai, who deposed that on 31-5-1989 at about 7.45 a.m. Complaint was received from Muhammad Aslam S.I. For recording F.I.R. Under section 13 of the Arms Ordinance, 1965, against Muhammad Anwar and accordingly F.I.R. No,118/89, dated 31-5-1989, was registered against Muhammad Anwar. A copy of the said FIR. Has been placed on record marked as Exh. D.A. He conceded in cross-examination that preceding FIR. No,117/89 was registered at Police Station Pir Wadhai on 29-5-1989 at 4-45 p.m. He denied the suggestion that he recorded FIR. No,118/89, only to please the C.I.A. Staff i,e, the respondents as the F.I.R. Register was blank at that time.
8. Raza Muhammad who made the application to the S.S.P. Rawalpindi for transfer of the investigation of case F.I.R. No,313/88 dated 12-11-1988, P.S. Wah Cantt. Under section 457/380 PPC read with section 14 of Ordinance VI of 1979, was examined on 14-6-1989. He deposed that he made application to the S.S.P. Rawalpindi for the transfer of investigation to C.I.A. Staff Rawalpindi of the aforementioned case. He conceded that his son Shakil Ahmad who is the complainant did not move the S.S.P. For the transfer of the case, as the house belonged to him, hence he was interested for the transfer of investigation of the case. He further deposed that he was summoned in the C.I.A.
Staff about 8/10 days before and he was shown the rifle in the C.I.A. Staff and it was suggested to him that they would change the number of the rifle if he owns and accepts that the rifle belongs to him. He declined to accept this suggestion as that rifle did not belong to him and he also refused to become a witness in case of recovery of rifle. (The witness pointed out Muhammad Aslam S.I. Who was present in Court that he made the above suggestion to him).
9. Muhammad Aslam S.I. Then made another statement on 14-6-1989 and deposed that according to Dak Register No, V, at serial No,5, dated 1-1-1989 there is entry showing that the C.IA. Staff received the application submitted by Raza Muhammad on 22-12-1988 to the S.S.P. Rawalpindi, whereby Case No, 313/88, was transferred to C.I.A. Staff for investigation. On that account there is the evidence of Muhammad Khan SI Police Station Wah Cantt. He deposed that according to report No, 6 dated 2-1-1989 of P.P. No,1, Wah Cantt. (Exh. D.B.), the investigation of Case No,313/88 was transferred to C.I.A. Staff Rawalpindi and vide report No,8 dated 2-1-1989, Exh.D.B/1), the file of the said case was handed over to the C.I.A. Staff.
10. The statement of the bailiff discloses that on 31-5-1989, at 1-20 p.m. When he raided the C.IA.
Premises he found that the name of the detenu Anwar Khan was not shown under arrest in the daily diary (roznamcha) maintained by Muhammad Arif Muharrir. He recovered the detenu from the room of Muhammad Aslam S.I. The detenu Anwar Khan was in hand-cuffs and at that time the D.S.P. Also came there and did not allow him to take the detenu with him unless he is got medically examined. Thereafter the detenu was handed over to him by the C.I.A. Staff at 4.45 p.m. He also deposed that Muharrir of the C.IA. Staff tried to snatch the Roznamcha from him. The D.S.P. Raja Mumtaz in his statement recorded on 21-6-1989, deposed that on 31-5-1989 at about 1-15 p.m. He learnt about the arrival of the bailiff of the High Court in C.I.A. Staff. He was informed that the bailiff has come to recover the detenu who has just been brought by Muhammad Aslam S.I. Muhammad Arif, Muharrir Head Constable C.IA. Staff in his supplementary statement dated 26-6-1989 placed on record the arrival report of Muhammad Aslam S.I. Bearing No, 14 dated 31-5-1989 (Exh.D.C./1).
According to this report, Muhammad Aslam S.I. Arrived at C.I.A. Staff at 1-40 p.m. The D.S.P. In his supplementary statement' dated 26-6-1989, deposed that he has perused the crime register which has been summoned under he order of this Court. In this register, the movement of the Zimnis received from the I.Os is recorded . According to him, date of Zimni No,51 which has been recorded by Muhammad Aslam S.I. In Case No,313/88 at serial No,51 is 31-5-1989 and Zimni No, 52 has not yet received, because there was raid for the recovery of Muhammad Anwar detenu. According to his record he has not received any Zimni after that. Then Muhammad Aslam S.I. Made his supplementary statement on the same day, in which he categorically stated that Zimni No, 51 dated 30-5-1989, is with respect to Case No, 313/88 dated 22-11-1988. It starts at 10-00 p.m. Which has been closed at 12-00 night.
' Thereafter Hasnat Haider, Naib-Reader to DSP deposed on 27-6-1989, that Zimni No, 51 is dated 30-5-1989 recorded by Muhammad Aslam S.I. In Case No, 313/88, which was received by him on 1- 6-1989. He also deposed that in the aforesaid case, incomplete challan was submitted on 19-4- 1989 and it received back from the DSP (Legal). He conceded in that statement that according to Chit (Exh.D.F.), Zimni No, 51 is dated 31-5-1989. He also made statement that Zimni Nos. 51 and 52 were received by him on 31-5-1989 and he gave the substance of Zimni No, 52, although in the relevant column he has written the number of Zimni No,
51. He further deposed that substance against Zimni No, 51 is that of Zimni No, 52.
' Muhammad Amin, Senior Clerk, S.S.P.'s Office, Rawalpindi, who was examined with respect to the issuance of Zimnis register on 27-6-1989, deposed that Muhamad Aslam S.I. (present in Court) was issued Zimnis register on 12-3-1989 and this register starts from serial No, 56801 and ends with 56900 and also another register given to him on the same day starts from serial No, 19100 and ends with 19200. He admitted that serial number of Zimni No,51 dated 30-5-1989 is 142735, but this number did not tally with the number issued by his office on 12-3-1989. In his supplementary statement which was recorded on 2-7-1989, he conceded that sometimes his office may be out of stock with respect to the Zimnis register and in that case, the 1.0s. Are allowed to use plain papers.
He further deposed that it is common practice in the P.Ss that one 1.0. Can borrow Zimni from another I.O.
11. I have heard the learned counsel for the parties as well as the learned law officer in this case. The learned counsel for the petitioner has submitted that this fact is not denied even by the respondents and the witnesses produced in this petition that when the bailiff of this Court at 1.20 p.m. On 31-5-1989, raided C.I.A. Staff, Anwar Knan detenu was although in the custody and detention of Muhammad .Slam S.I., as stated above, but he had not been shown as arrested person in the daily diary (Roznamcha). The learned counsel further submitted that as the detention was illegal, hence the police officers, i,e,respondent Nos. 1 and 2 have committed offences falling under sections 345, 330, 307 and 167, P.P.C. He further contended that Muhammad Aslam Si. Made incorrect and false statement before this Court as he deposed in his statement dated 5-6-1989, that he arrested the detenu at 5-00 a.m. On 31-5-1989 and arrived at C.I.A. Staff at 1-15 p.m., whereas Muhammad Arif H.C. In his statement dated 26-6-1989, deposed that according to the arrival report No, 14, dated 31-5-1989, Muhammad Aslam Si. Arrived at 1-40 p.m. And the evidence of the D.S.P. Is also to the same effect that Muhammad Aslam S.I.
Was present when the bailiff arrived at the C.I.A. Staff and recovered the detenu from his illegal custody. Learned counsel also submitted that the S.I. Muhammad Aslam deposed in his statement dated 5-6-1989, that he arrested the dctenu at 5-00 a.m. On 31-5-1989 and arrived at C.IA. Staff with the detenu at 1-15 p.m. Which is against the relevant entry referred above.
' The learned counsel for the petitioner then referred to the statement of Muhammad Aslam Si.
Dated 26-6-1989, wherein he deposed, as mentioned above, that Zimni No, 51 is dated 30-5-1989, which starts at 10-00 p.m. And was closed a 12-00 night, but the D.S.P. In his statement dated 26-6- 1989 said that Zimni No, 51 according to the Crime Register, which he has perused is dated 31-5- 1989 and this Zimni pertains to F.I.R. No,313/88 dated 12-11-1988, in which allegedly the detenu Muhammad Anwar was arrested by Muhammad Aslam S.I.
12. The perusal of the register shows that entry of Zimni No, 51 in the crime register was prima fade tampered with and the chit, which is in the hand of the Naib-Readcr to D.S.P. As admitted by him in his statement referred above, clearly states that this Zimni is dated 31-5-1989 and was received on 1-6-1989, whereas according to the police record prepared by Muhammad Aslam S.I. This Zimni is dated 30-5-1989 and is on a different serial number, which was not supplied to him by the S.S.P's office. The learned counsel for the petitioner cited number of 'authorities and contended that the case he ordered to be registered against the respondents and that the detenu be allowed to remain on bail. The first case cited by him is Mir Muhammad Shabbir v. Aslam Khan 1987 MLD 2622.
In this case it was found by the learned Judge that no report existed in Roznamcha of the police station about the arrest of the detenus and were held up at police station when taken into custody by the bailiff of this Court. The learned Judge observed that the detenus were kept unlawfully at the police station and the Inspector-General of Police was directed to look into the matter and take necessary action against concerned Police Officers for unlawful detention of the detenus. He then relied upon Nasreen Akhtar v. S.H.O. 1986 P Cr. L J 2568, in which it was held:- "Statement of detenu on his production before High Court under section 491, Cr. P.C. Disclosing commission of cognizable offences by S.H.O. And other police officials-- High Court directing registration of case against S.H.O. And others on basis of detenu's statement with order to furnish copy of F.I.R. To Court -- High Court further directing investigation of case by Officer not below rank of D.S.P./A.S.P. And conclusion of investigation within 15 days under intimation to Additional Registrar of High Court"
' The third case relied upon is Mst. Bavi alias Rehmat Bibi v. S.H.O. 1985 MLD 43. In this case it was held:- "Police detaining petitioner's two sons and her nephew--Police preparing false record with a view to justify their detention--Petitioner and detenus not wanting to take part in inquiry against police in High Court. Allegations against police officials of serious nature and their conduct not appreciable--Senior Superintendent of Police directed to look into matter and proceed against them departmentally and register case against them in case sufficient evidence was available-- Bail allowed to detenus was confirmed."
' The fourth case relied upon is Haji Muhammad Ashiq v. S.H.O. 1987 MLD 815. In this case, the detenu was found in police lock-up without any entry in the Roznamcha, thus his detention being illegal he was allowed pre-arrest bail and also directed that he was at liberty to pursue civil or criminal action against the police officials who had detained him illegally.
13. The learned counsel for the respondents on the other hand submitted that the respondents are victims of misfortune and it so happened that the moment the detenu was brought immediately the bailiff came at the spot, hence they could not enter his arrest in the daily diary (Roznamcha), but he has not denied this fact that when the bailiff raided the C.I.A. Staff, Muhammad Anwar detenu was found in the detention of respondent No, 2 and there was no such corresponding entry of his arrest in the daily diary as contemplated under section 44 of the Police Act. The learned counsel for the resondents further submitted that it is an irregularity only. From the Zimni which he has referred, he submitted that the case remained pending with the C.I.A. Staff and on 16-3-1989, they got the clue that the detenu is involved in the Case No, 313/88, dated 12-11-1988, and then the investigation was transferred under the order of respondent No, 1 to respondent No,
2. Thereafter, respondent No, 2 arrested the detenu but by sheer bad luck he could not enter his arrest in the daily diary before the arrival of the bailiff. He also pointed out that some discrepancies which have been referred to by the learned counsel for the petitioner, are of insignificant nature and they cannot be termed as fabrications or intentionally giving false evidence in the Court by respondent No, 2.
14. The learned A.A.-G. Who appeared to assist this Court has submitted that the police had the power to arrest the detenu under section 54, Cr.P.C. In the case referred above, but mere non- mentioning of arrest of the detenu in the daily diary (Roznamcha) is an irregularity and is not an offence. He has placed reliance on Nazir Ahmad v. The State 1970 SCMR 7, wherein their Lordships of the Supreme Court observed in a murder case that section 54 is not controlled by section 56.
Person accused of congizable offence arrested by police constable without warrant. Constable stabbed by accused. Contention that the accused had right to free himself from wrongful custody was held not maintainable in law.
' Learned A.A.-G. Has further submitted that at the most this may be an irregularity which can be cured at the departmental level and instead of agreeing with the submissions of the learned counsel for the petitioner, the matter can be referred to the superior police officers for departmental action against the respondents with respect to the irregularity of not mentioning the name of the detenu in the daily diary. He has also placed reliance on Emperor v. Kh. Nazir Ahmad AIR 1945 PC 18, wherein it was laid down that the police have statutory right under sections 154 and 156 to investigate offence and High Court cannot interfere in exercise of inherent powers under section 561-A.
' Learned A.A.-G. Has also urged that mere illegal arrest of the detenu would not effect the guilt of the detenu and he has to face the charge levelled against him and it is for the Court to decide whether the detenu was involved in the case referred above and subsequently in a case under the Arms Ordinance and this is within the domain of the trial Court and this Court should not in the present proceedings give any finding which are of summary nature.
15. I have considered the arguments and submissions of the learned counsel for the parties. I find that one thing is very clear that the detenu Muhammad Aslam was recovered from the illegal detention of respondent No, 2 as there was no entry in the daily diary, hence it is a cognizable offence in which a case ought to be registered against the respondents at the instance of the detenu. I would, therefore, direct the S.S.P. Rawalpindi, that he should, on the application of the detenu register a case against the respondents for said offences including the offence of torture, because there is a certificate of the doctor to that effect with the concerned Police Station. A copy of the F.I.R. Should be sent within a reasonable time to the Additional Registrar of this Court. The SSP is further directed that he should entrust the investigation of the cases to an officer who is senior in rank than the officers against whom the case is registered under the provisions of the Penal Code.
16. A copy of this judgment be transmitted to the S.S.P. Rawalpindi, for compliance.
17. 1 have also examined the contentions of the learned counsel for the petitioner, so far as they relate to the commission of offence under section 193, P.P.C., by Muhammad Aslam S.I. Respondent No,2, on the basis of certain pieces of evidence referred above, without going deep into the matter, I find prima facie that a case under section 193, P.P.C., is made out against Muhammad Aslam respondent No,2, issue notice to him to show cause as to why he should not be prosecuted for the aforesaid offence for intentionally giving false evidence in this Court, and also for fabricating false evidence.
18. I also find that Muhammad Arif, M.H.C. Has shown disrespect to the order of this Court by snatching the Roznamcha from the Bailiff of this Court and tried to interfere, obstruct and interrupt the order of this Court passed in the habeas corpus petition, which led to the recovery of Muhammad Anwar detenu. A notice be also issued to Muhammad Arif M.H.C., C.I.A. Staff, Rawalpindi, to show cause as to why proceedings under section 3 of the Contempt of Court Act be not initiated against him and he be punished according to law.
19. Office is directed to issue notice to these two police officials for a date after the summer vacation.