JUDGMENT TASSADUQ HUSSAIN JILANI, J.- This is a petition under section 491 of the Criminal Procedure Code for recovery and release of the alleged detunes namely, Allah Ditta son of Rahim Bakhsh and Hazoor Bakhsh son of Meran Khan from the alleged illegal custody of police of Police Station City B-Division Rahimyarkhan.
2. On 25.1.1995, a bailiff of this court was deputed to recover the alleged detunes provided they are not arrested in some case. On 26.1.1995, the bailiff ' produced the said detunes before this court and submitted his report to the effect that the detunes were detained in the police lock-up and on perusal of the Roznamcha he found that they had not been shown as arrested. The bailiff further reported that on his query, the Muharrir of the said police station informed him that he was not aware as to why the detunes had been arrested and that they had been brought to the police station by Khaleeq Iqbal ASI. The said ASI was, however, not present when the bailiff raided the Police Station.
3. Statements of both the detunes have been recorded which are to the .Effect that they were arrested about fifteen days ago by a police party headed by Khaleeq Iqbal ASI and Ch. Arshad.
Statement of Khaleeq Iqbal ASI was also recorded. He admitted to have arrested the detunes on 25.11995 in case FIR No. 281/94, Police Station City-A-Division Rahim Yar Khan the investigation of which case was entrusted to him on 20.1.1995. On cross-examination by the learned counsel for the petitioner, he submitted that the arrest of the alleged detunes had already been made in the Roznamcha prior to the arrival of the bailiff.
4. The report of the bailiff in the Roznamcha bears No. 25 whereas according to ASI Khaleeq Iqbal the arrest of the detunes had already been entered in the Roznamcha vide report No. 37 which according to him is prior in time. In view of this anomaly, Khaleeq Iqbal ASI was directed to produce the original Roznamcha pertaining to the aforementioned date. On 8.2.1995, the daily diary/Roznamcha was produced. A perusal of the same shows that on 25.1.1995, at serial No. 25, the bailiff of this court made a note of the recovery of the alleged detunes and of the fact that after checking the Roznamcha he found that no entry with regard to their arrest had been made uptill then. Even the Muharrir, present in the police station at that time, was not aware as to why they (detunes) had been arrested. Notwithstanding this report an entry has been made vide report No. 37 wherein both the said alleged detunes have been shown to be arrested in case FIR No. 281/94 registered under sections 457/380/411 PPC at Police Station City A- Division Rahimyarkhan.
Entry No. 37 which has been shown prior in time to entry No. 25 written by the bailiff appears to be an afterthought and has been made dishonestly by tempering with the official record. If he said entry was in existence when the bailiff raided the premises of the police station, there was nothing to prevent the Muharrir present there to apprise the bailiff of the same. No explanation is coming forth as to why it was not brought to the notice of the bailiff at the time of raid. The complainant of the above-referred case (FIR No. 281/94 .S. City A- Division Rahimyarkhan under sections 457/380/411 PPC) present in court along with his learned counsel submits that the challan in that case is already in court. He does not deny that the recovery memos of the said case; evidence recovery of most of the stolen property. It is further admitted that the alleged detunes are not the accused in that case.
5. The statements of the alleged detunes that they were arrested 15 days prior to the day when the bailiff recovered them remained .Unchallenged as they were not subjected to cross-examination.
Their arrest is admitted by Khaleeq Iqbal ASI and his assertion that it was made on 25.1.1995 (the day bailiff raided the Police Station) is belied by the report of the bailiff which has been signed by me and is Mark-A with this petition which is to the effect that there was no entry in the Roznamcha qua the arrest of these detunes. Thus the oral evidence of the detunes stands corroborated by the documentary evidence and the police record itself.
The learned counsel of the complainant (of case FIR No. 281/94 P.S. City- A-Division Rahimyar Khan) as also the complainant present in court, to be fair to them, admit that the set of accused facing trial in the aforementioned case is different and that the detunes are not even named in the FIR.
6. For what has been discussed above, the arrest of the alleged detunes, namely, Hazoor Bakhsh son of Meran Khan and Allah Ditta son of Rahim Bakhsh is declared to be without lawful authority and of no legal consequence. They are set at liberty.
7. A perusal of the facts and circumstances of this case indicate that in arresting the detunes Khaleeq Iqbal ASI acted in utter contempt to law. They were kept in police-up without having been produced before a Magistrate in a case which was already pending trial. It resulted in mental torture and undue expense to the petitioner (on filing the petition) as also to the alleged detunes who remained in an illegal confinement. I, therefore, burdon Khaleeq Iqbal ASI with a cost of Rs.6,000/- (Rupees six thousand only) which shall be given to the detunes in equal share.
8. A copy of this order shall be sent to S.P. Rahimyarkhan who shall take appropriate action under the law against the delinquent Police Officials of Police Station City B-Division Rahimyarkhan under intimation to the Additional Registrar of this court for the information of this Bench.
9. It is however, made clear that this order shall not prevent the alleged detunes, namely, Hazoor Bakhsh son of Meran Khan and Allah Ditta son of Rahim Bakhsh to pursue their legal remedies before any civil or criminal court, if they so decide.
10. A notice of Contempt of Court was issued to the Acting SHO (of P.S. City B-Division R.Y.Khan) vide this Court's order dated 6.2.1995 for noncompliance of order of this Court dated 26.1.1995 vide which he was directed to produce the register of 'Daily Diary' of his Police Station. He has not entered appearance. It seems that he has not been served. Let fresh notice of Contempt of Court be issued to him for 12.3.1995. An independent file shall be constructed in this regard.
11. This petition is disposed of in the above-noted terms.