' Canvassing bail for one Khadim Hussain who stood accused of the murder of one Abdul Majeed vide F.I.R. No,213/93, dated 7-8-1993 of Police Station, Sharaqpur of District Sheikhupura, the learned counsel had inter alia submitted that despite a lapse of almost eight months, the challan had still not reached the Court and further that the petitioner's detention in custody was unlawful on the ground that he was being remanded to judicial lock-up without having been produced before the learned remanding Magistrate and in the absence of the police file.
2. In view of the above-noticed submissions, I called upon the jail authorities to produce the record relating to the detention and custody of Khadim Hussain petitioner and also ordered the learned Illaqa Magistrate to send whatever record was available with him in connection with the detention of the said accused person. I had also called upon the S.H.O. And the S.D.P.O. Of the concerned police station to submit their reports about the non-submission of challan for almost eight months and the non-production of the accused person before the learned Illaqa Magistrate and also non- production of the case file before the said learned Magistrate while seeking remand of the accused person in question.
3. The report submitted by the S.D.P.O. And the record of the Jail Authorities and the learned Illaqa Magistrate made appalling revelations.
4. The occurrence in question had taken place on 7-8-1993. The investigation in the case had been completed by 13-9-1993 whereafter, Abdul Rashid S.I./S.H.O. Handed over the same to the Moharrar Head Constable of his police station, namely, Abdul Majeed for onward transmission of the same to the Court. The Moharrar kept the file with him for seven days and entrusted the same to Waris Ali S.I.
On 19-9-1993 vide a road certificate No,376/21 for carrying the same to the office of the D.S.P.
(Legal) of Sheikhupura. This Waris Ali S.I. Kept this file with him for almost four months and deposited the same in the Legal Branch of Sheikhupura on 17-1-1994 and this, Waris All S.I. Had done in spite of the fact that he had been transferred from Police Station, Sharaqpur to Police Station, Saddar, Sheikhupura on 4-11-1993. This file had thus, taken four months to cover a distance of a few miles starting from P.S. Sharaqpur to the office of D.S.P. (Legal) in Sheikhupura.
5. The case file appears to have been checked by some Inspector (Legal) who wrote his report thereon on 20-1-1994 whereafter, this file took another fifteen days to reach back and was entrusted to Abdul Hameed S.I. For removal of objections raised by the Legal Branch recorded in its abovementioned report dated 20-1-1994. The said Abdul Hameed S.I. Appears to have kept this file with him for 35 days without doing anything in the matter and on his transfer from P.S. Sharaqpur, this file was handed over to Muhammad Yousuf A.S.I. On 7-3-1994 who held on to the same for almost a month i.e till 4-4-1994 without making any progress towards the removal of the objections of the Legal Branch as abovementioned.
6. It may be mentioned here that the law expects the Investigation of a case to be completed within fourteen days of the registration of the case as being the maximum period allowed by law after which, the trial has to commence and it is only under extraordinary circumstances, as per the provisions of section 344 of the Cr.P.C., that the commencement of the trial would be postponed by the learned trial Court permitting further time for the completion of the investigation. Seeking time beyond these fifteen days for the submission of the challan has to be for good reasons which have to be reported to the learned trial Court in writing and the learned trial Court is not permitted' to grant such an extension unless he is satisfied from the police file that a substantial progress had been made in the investigation and that it was absolutely on account of unavoidable reasons that the challan could not be submitted in the Court. Needless to add here that it is only in these circumstances that an accused person who stands arrested and detained in pursuance of a case, can be kept in further detention awaiting commencement of the trial.
7. The present is one of the glaring examples of extreme apathy on the part of the police officials who having completed the investigation within about three weeks, kept the police file with them for more than seven months only to submit the report of the said investigation i,e, the challan before the Authorised Magistrate.
8. I had taken notice of this culpable inaction and negligence on the part of the police officials in' my interim order, dated 12-4-1994 and had directed through the said order that a copy of the same should be sent to the D.I.-G of the Lahore Range Police who had been called upon to take appropriate action against the delinquent police officials, including the S.H.Os., of Police Station, Sharaqpur who had failed to take notice and to take any steps to rectify the said malfeasance.
9. On verification from the jail record, it transpired that on more than one dates of hearing, the accused person in question had not been produced before the learned Illaqa Magistrate and was not present before him when he was being remanded for further detention in custody. It also transpired that on most of these dates of hearing, the police file of the case which was in the custody of various police officials, as above noticed, was also not being produced before the said learned Magistrate and the remand was being allowed in the absence of this file.
10. Faced with this situation, I summoned the learned Illaqa Magistrate who had been passing these remand orders in the abovementioned manner and also called upon the Jail authorities to show cause why they should not be punished for not having complied with the orders of the learned Magistrate in producing the accused in question before the said learned Court and also for having thereafter kept the said under-trial prisoner in illegal detention.
11. The Superintendent of Sheikhupura Jail entered appearance and submitted that on each such date of hearing when this accused person had not been produced in Court, he had sent the required requisitions to the concerned police authorities for providing necessary guard and for escorting the said accused person to the concerned Court and that the fault lay with the police officials who had not made arrangements to transport the said accused person to the concerned Court on the relevant dates.
12. On my summons, the A.S.P. (Headquarters) and the Reserve Inspector of Sheikhupura Police Lines entered appearance. They admitted that the non-production of Khadini accused before the concerned Court on the dates in question, was on account of a lapse on their part. The A.S.P., however, pleaded that the said lapse was neither on account of negligence on their part. Nor on account of inaction but had occasioned due to the non-availability of the necessary Police strength and the necessary transport.
13. 16-3-1994 was one such date on which, Khadim accused had not been produced before the learned Illaqa Magistrate and taking this date as one typical day and a typical illustration for the transportation of the under-trial prisoners to the concerned Courts, the A.S.P. Submitted that on the said date, 474 accused persons had to be collected from different jails i,e, District Jail of Sheikhupura, the Central Jail of Gujranwala, the Central Jail of Sahiwal and the Central Jail of Bahawalpur and had to be produced before different Courts at nine different places, such as, the learned Special Court for Suppression of Terrorist Activities at Lahore, the Courts of the learned Sessions Judge and the learned Additional Sessions Judges at Sheikhupura and Nankana Sahib and some other Criminal Courts at various points in Sheikhupura District, including, Ferozewala. He added that on the said date, the strength of police employees available with him in the Police Lines of Sheikhupura for the said purpose, was three S.Is., nine A.S.Is., eleven H.Cs. And ninety-one F.Cs. He further reported that he had only five prison vans available with him in, Sheikhupura District out of which, three were bigger in size with a total carrying capacity of thirty occupants and two were smaller in size with a total carrying capacity of fifteen occupants. He further submitted that he had converted a mobile canteen available with Sheikhupura Police into a prison van which added another vehicle for transportation of the under-trial prisoners. According to this calculations, the transport thus, available with him could carry a maximum of 150 prisoners from the prisons to the Courts and despite this, he had managed to produce 311 undertrial prisoners before various abovementioned Courts on the said date. He added that although he had failed to transport more than 160 accused persons before the concerned Courts on this date, but the same was only on account of non-availability of resources at his disposal.
14. The abovementioned statistics would demonstrate that non-production of the under-trial prisoner before. The learned trial Court in the present case was not a solitary instance. I may add here that the situation in other districts of the Province is no better and in fact could be worse than the position obtaining in Sheikhupura District. Just today I was dealing with another case i,e, Criminal Revision No,362/92 emanating from Gujranwala District in which the under-trial prisoners who stood accused to escaping from police-lock-up and each of whom stood involved in more than ten cases of dacoities and attempted murders etc., had not been produced before the learned trial Court on at least ten dates of hearing, out of 4 dates fixed for the trial in one year. In this case, the apathy of the Police Department and the prosecution agency is also demonstrated by the fact that for full one' year, not a single prosecution witness had been produced before the learned trial Court as a result of which, the abovementioned under-trial prisoners who were no ordinary criminals, had to be acquitted.
15. Service and production of prosecution witnesses at trials is yet another field where efficiency of the concerned Governmental agencies is at its lowest ebb. I do not wish to burden this order with the long list of cases which have come to my notice where not a single prosecution witness had been offered to the learned trial Courts for years and in some of these cases, the learned trial Magistrates had even been addressing communications to the Superintendents of Police of the Districts to intervene and yet no fruitful results had amerged. One needs only to pick up the file of any trial of any Court of the Province to fmd the prevalence of such an appalling situation where alarming delays are caused in the conclusion of trials on account of non-appearance of the prosecution witnesses. The non-production of the under-trial prisoners as also of the prosecution witnesses before the learned trial Courts is not the only menace which is fast eroding the very foundations of the administration of justice in our Province. The other day while dealing with Criminal Miscellaneous No, 747/M of 1993, I was shocked to notice that thousands of Articles were missing from the Malkhanas of the districts all over the Province. After a preliminary probe, I had directed registration of criminal cases in respect of the disappearance of such-like articles from the Malkhanas and I am told that the investigations and prosecutions in the said connection are in progress. Through an order passed by me on 16-4-1994 in the abovementioned matter, I have constituted a Team of Bailiffs nominated by me to inspect the Malkhanas all over the Province and to submit their report whereafter, further necessary steps shall be ordered in the said connection.
16. One frequently hears of public declarations being made by the Governmental authorities at the highest levels vis-a-vis provision of speedy justice to the people and that also at their door-steps. I have no doubt in my mind that this Governmental intention is not only a pious wish and the Government is keen on securing the said end. However, I feel tempted to mention here that the primary and the basic prerequisite for ensuring speedy justice is to first ensure justice and then to think of measures to speed-up the same or to carry the same to the door-steps of the people and that this noble goal cannot be achieved only by dismemberment and the scattering of Courts of Law all over the land.
17. Securing justice for the people especially in criminal matters shall remain only a dream if delay and dishonesty is not eliminated in the matter of investigation of the cases; if preservation of the case property through maintenance of the sanctity of Malkhanas is not ensured and if non- production of under-trial prisoners and of prosecution witnesses before the learned trial Courts, is not avoided. Let me add here that if the prevalence, the continuance and the spread of these menaces is not immediately arrested, then the same is likely to have devastating repercussions on the very system of the administration of justice and the scenarios which would then emerge is not difficult to predict. Establishment of justice is one of the basic objects and the obligations of the State and the history, be it contemporary, old or ancient, does not paint a very pleasant picture of the societies which had failed to achieve this object and to discharge the said obligation.
18. Since the magnitude of the decay in the above-noticed matters is rather large, therefore, I do not expect its reversal over-night. Consequently, I am deferring adoption of penal and coercive methods to chisel the rusted and the blunted tools as abovementioned and have instead decided to give three months time to the concerned agencies to improve their performance after which period, strict action will be taken in connection with any delinquency which is noticed in these matters. Needless to remind all concerned, that the Courts of Law have been equipped with sufficient powers to ensure efficiency for the purposes of dispensation of justice.
19. The following steps shall be immediately taken as remedial measures in respect of the above noticed issues:---
(a) Non-production of under-trial prisoners: ' The Chief Secretary shall, with the assistance of the Home Secretary and the Inspector-General of Police, take stock of the available resources in the matter and the production of the under-trial prisoners before the concerned Courts of Law and shall then take steps to provide the necessary resources to the concerned quarters for the purpose. This would be a long term solution of the problem but as short term measures, ad hoc arrangements shall be made on emergent basis which might involve temporary hiring of vehicles and providing manpower to each district police for escorting the accused persons to and from the Courts of Law. The .Possibility of requisitioning necessary manpower from the Punjab Constabulary could be explored.
(b) Non-production of the prosecution witnesses: ' The District Superintendent of Police and through them, the S.H.Os. And the Prosecutors shall be directed to discard apathy in this connection. The S.H.Os. Shall be held personally responsible for the non-production of the prosecution witnesses which exercise shall be monitored by the Superintendents of Police who shall also have to face consequences if they cannot ensure efficiency in this connection on the part of their respective S.H.Os.
' The learned trial Courts are directed that if on any date of hearing, the summons or the warrants issued by them for the appearance of the witnesses remain unanswered, then they shall summon the concerned S.H.Os.; record their statements on Oath; identify the reasons for such a conduct and then take penal action against the delinquent official and if need be, make a reference to this Court for appropriate, coercive and penal action against the officials responsible for malfeasance or misfeasance.
(c) Malkhanas: ' The District Magistrates are directed to acquaint themselves with the provisions of the Police .Rules and of the High Court Rules and Orders regarding the maintenance and inspection of Malkhana.
They should stand notified that if any article is found missing from any Malkhana in future, then besides the immediate Incharge of the Malkhana concerned, the relevant District Magistrate, shall also be personally liable in this connection.
20. Copies of this order shall be immediately sent to the Chief Secretary, the Home Secretary and the Inspector-General of Police of the Province for their information and compliance. The Home Secretary is directed to circulate copies of this order to all the Superintendents of Police and the District Magistrates in the Province for their information and compliance of_the same on their part.
21. I shall expect the Chief Secretary, the Home Secretary and the Inspector-General of Police to send their reports to this Court about the action taken by them in the matter and the same should be available to this Court by the next date of hearing.
22. Khadim Hussain petitioner in the present case stands burdoned with a fire-arm injury on the head of the deceased and in the circumstances, I do not feel persuaded to extend to him, at least for the present, the relief which he seeks from this Court.
23. To come up on 6-7-1994.
24. The record of the present case has been handed over to Muhammad Yousuf, A.S.I.