MALIK MUHAMMAD QAUYUM, J. - This petition under Article 199 of (lie Constitution of Islamic Republic of Pakistan, 1973 has been filed by Mr. Muhammad Ahsan, who at tire relevant time was a Member of tire Pakistan Banking Council and is now holding the office of the Chairman of the said Council set up under the Banks (Nationalization) Act, 1974 by the Federal Government.
2. According to the facts stated in this petition, the petitioner was called upon by the Federal Government to conduct inquiries into various irregularities committed in respect of loans and advances obtained by certain influential persons from the Nationalised Banks and other Development Finance Institutions.. It is stated that the petitioner was also associated with the prosecution of Criminal case involving Millions of rupees arid disciplinary proceedings against former Chairman of the Pakistan Banking Council. It is claimed that as a measure of political victimization and with a view to deter him from performing his official duties, the petitioner was arrested on 17.5.1990 at 8.30 p.m. In a false and fabricated case by a Police party headed by Mr. A man Ullah Khan, the then Superintendent of Police City. Lahore from his house at 12-Fasih Road.
Islamia Park, Lahore.
3. The were of the petitioner filed a petition in the nature of Habeas Corpus. (W.P. No.3304)/90 in which my learned brother Zia Mahmoud Mirza. .1. (tis his Lordship then was) deputed a Bailiff to recover the petitioner from the custody of the police. Pursuant to that order, the Bailiff went to the Police Station, Lower Mall. Lahore where he was told that the petitioner was involved in a criminal case registered at that Police Station but has been taken to an unknown place by Mr. Masood Aziz, D.S.P. The Bailiff, however, learnt that the petitioner was being kept in custody at Police Station, Misri Shah, Lahore. The Bailiff consequently went there where the petitioner was found confined in a room in the basement. The petitioner wa produced before the learned Judge at 8.00 p.m.
Respondents No.2 and 3 informed the Court that the petitioner had been arrested on 17.5.1990 at (0:30 p.m. In a case registered under sections 3 and 4 of the Prohibition (Enforcement of Hadd)
Order, 1979. The petitioner was released on bail which was later on confirmed on 29.5.1990.
4. In view of certain developments which took place during the pendency oi proceedings in this case, the petitioner was permitted to amend the petition. In the amended petition, Mr. Aman Ullah Khan, former Superintendent of Police. City. Lahore, Masood Aziz, Deputy Superintendent of Police, New Anarkali. Lahore. Shahzada Saleem, S.H.O. Police Station, Lower Mall. Lahore, Zafar Iqbal, S.H.O.
Ravi Road, Lahore, Mr. Habib Ullah Goraya, Magistrate 1st Class am1 Province of Punjab, have been impleaded as respondents and it has been prayed that: - "In view of the foregoing submission, it is most respectfully prayed that the proceedings initiated against the petitioner out of F.I.R. No.74/90 dated, 5.3.1990 of P.S. Lower Mall, Lahore, may graciously be declared to have been taken by the respondents No.2 to 6 illegally. Male fide and without jurisdiction.
It is further prayed that this Hon'ble Court may graciously be pleased to take under section 47.6 Cr.
P.C. Cognizance of the offences, inter alia, under sections 195, 196, 199, 200, 211 and 463 PPC (punishable under section 471 PPC) prima facie committed by respondents No.2 to 6, and to try the same.
It is also prayed that this Hon'ble Court may graciously be pleased io direct the registration of criminal case against the said respondents No.2 to 6 for having hatched a criminal conspiracy against .The petitioner, for illegally involving him in a false criminal case, by ordering his physical remand for 10 days by falsely showing his having been produced in Court in police custody, for committing criminal trespass in the house of the petitioner, for unlawfully arresting and keeping him, under illegal confinement and for having abused their official position in staging a false drama against the petitioner.
It is additionally prayed that the administrative authorities concerned be directed to initiate and hold departmental action against the said respondents-.
Any other relief to which the petitioner be found entitled under the law, may also be granted to him including special exemplary costs."
5. When this petition initially came up for hearing, the learned Additional Advocate-General was directed to obtain instructions and enter appearance at the limine hearing of this petition. On 2:9.1990, it was stated by the learned counsel appearing on behalf of the learned Advocate- General that the investigation was being conducted by Mr. Israr Ahmad. Senior Superintendent of Police, Lahore, who was asked to appear before this Court. On 9.9.1990, the Senior Superintendent of Police appeared and stated that after investigating the matter and on the basis of the record available with him, he did not wish to Challan the petitioner. He however, sought further time to complete the investigation. The Senior Superintendent of Police again appeared on 18.9.1990 and slated that he had not been able to collect any further evidence.
6. The petition was, therefore, admitted to regular hearing.
7. The arguments of the learned counsel for the petitioner were heard on 4.6.1994 and 28.6.1994. Oh 3.7.1994. The learned Additional Advocate-General slated that the respondents have engaged their own counsel and, therefore, he would be appearing on behalf of the State alone. He submitted that there was no material 10 connect the petitioner with the offence of which he had been accused. A request lor adjournment on behalf of Mr. Sami Ullah Khan, Advocate for respondents No.2 and 6 was made by Mr. Muhammad Akram, Advocate who was present on that date. Since the latter was also a counsel, he was asked to argue the case but he expressed his inability to do so, Mr. Masood Aziz, respondent No.3, who was present in person also requested for adjournment as his counsel was absent but was unable to explain the reasons for the absence of the counsel. In these circumstances, the request for adjournment was declined. The respondents were, however, permitted to file their written arguments, if they so desire within three days. Some of them have filed written arguments which have been considered.
8. Before proceeding any further, it may Ire noted that as already observed on 3.7.1994, Rana Muhammad Arshad, the then learned Additional Advocate- General appearing for the State submitted that there was not material to connect the petitioner with the commission of offence of which he was accused. It is thin evident that the State itself has not supported the prosecution of the petitioner.
9. Mr. M. Saleem Sehgal, learned counsel for the petitioner has vehemently contended that the involvement of the petitioner in the case FIR No.74/90 was not only baseless and unjustified but was mala fide.
10. This contention of the learned counsel is well founded and finds amply support from the record.
From the facts and circumstances of the case, the conclusion which is inevitable is that the petitioner who was charged with an important function by the Federal Government of holding inquiries into the irregularities committed by various influential persons was implicated m the criminal case with a view of intimidate him so that he should refrain from holding those inquiries.
11. The case in which the petitioner was involved was registered on 5.3.1990 vide FIR No.74/90 at Police Station, Lower Mall Lahore The petitioner was not one of the accused named in the FIR nor was he present in the vehicles from which heroin is said to have been recovered. According to the prosecution, rhe involvement of the petitioner was a result of statements made before the Police on 5.3.1990 during the course of investigation by Muhammad Hamza and Qasim Khan accused and a statement under section 164 by Muhammad Hamza allegedly recorded by the Magistrate (respondent No.6) on 17.3.1990. If the police indeed was in possession of the relevant material connecting the petitioner with the commission of offence as far back as March, 1990, there was no reason as to why no proceedings were taken against the petitioner till his arrest on 17.5.1990. There is no explanation on the record for this delay and inaction for a period of about two mouths from which an inference can legitimately be drawn that it was only when the petitioner started actively making inquiries against certain persons wielding political influence in the Province that he was implicated in the said case registered about two months back. Although in the written statement filed by respondent No.3, he had stated that he had been making efforts to arrest the petitioner earlier who was not available but this bait assertion is not supported by anything on the record. On the other hand, it is not believable that the petitioner who was a public servant working in Lahore and Karachi could not be apprehended for a period of more than two months.
12. It is also to be noticed that under rule 26.13.of the Police Rules, 1934. In case a public servant is sought to be arrested, it is an obligation of the Police to inform his superiors before the arrest and if that be not possible, immediately after he had been taken into custody, .In the present case, this provision has been flagrantly violated as although the Police had waited for more than 2 months before proceeding to take any action against the petitioner, his superiors were never informed either before or after his arrest. This fact also clearly demonstrates the mala fides of the prosecution. The impression that the arrest of the petitioner was a measure of political victimization is further supported by the news item appearing in the daily DAWN" (Annexure In) where in it has been stated that one of the items on the Agenda prepared for discussion by meeting of the Committee constituted for bringing about reconciliation between the Federal Government and the Government of Punjab was unwarranted and unprecedented arrest of a Member of the Pakistan Banking Council in a heroin case.
13. Even according to the respondents the only evidence against the petitioner on she basis of which he was proceeded against was the statement made by Muhammad Hamza accused on 17.3.3990 under section 164 Cr.P.C, before respondent No. 6. Muhammad Hamza accused in a communication in Urdu dated 10.6.1990 addressed to this Court which was forwarded by the Deputy Superintendent of District Jail to the Registrar of this Court, has denied having made any such statement. A similar averment was also made by him in the application under Order 1 rule 10 CPC (C.M. No. 324/90) which was filed by Mr. Mansoor--ur-Rehman's Khan A frith, Advocate, ft is also important to note than on 17.3.1990, on an application made by Masood Aziz, respondent No. 3, herein, Muhammad Hamza was produced before Mr. Zafar Iqbal, Magistrate who remanded him to the judicial custody. Neither in the application filed by respondent No. 3 nor at the time when the order of remand was passed was it disclosed that statement under section 164 Cr P.C. Of Muhammad Hamza accused was to be recorded. It is strange that having not done so on the same day the statement of Muhammad Hamza under section 164, Cr.P.C, was purportedly recorded by Mr. Habib ullah Goraya. Magistrate respondent No. 6, There is no explanation oil the record as to why if such a statement was to be recorded, request was not made before Mr. Zafar Iqbal, Magistrate, who had remanded Muhammad Hamza to judicial custody. The further fact which is discernible from the record is that in his application for bail before the Sessions Court, Muhammad Hamza had denied that he lias participated in the commission of crime. The most important aspect in this respect, however, is that during the course of trial of Muhammad Hamza before the learned Magistrate who acquitted him on 9.12.1991, statement under section 164 Cr.P.C, said to have been made by Muhammad Hamza was not produced in evidence by the prosecution and no effort was made by it to have the same proved bv examining respondent No. 6, the Magistrate, who had allegedly recorded the same. This fact is completely destructive of the stand taken by the respondents that Muhammad Hamza accused had made a statement under section 164, Cr.P.C, implicating the petitioner which was recorded by respondent No. 6. It is also worthy of notice that in the challan submitted before the Court in the criminal case on 28.3.1990. The petitioner was not named as one of the accused. It is also painful to notice that though the Investigating Officer/Senior Superintendent of Police had no two occasions stated before this Court on 9.9.1990 and 18.9.1990 that there was no evidence to connect the petitioner with the commission of offence yet a supplementary challan was submitted against the petitioner, before the Court on 27.9.1990. It is, however, unnecessary to probe into this matter any further as on the basis of the report made by the Police itself, the petitioner was discharged by the Magistrate on 31.1.1991 which fact by itself is sufficient to show the falsity of the case set up against the petitioner and the mala fide of the manner in which the petitioner was proceeded against.
14. It follows from the above discussion that the involvement of the petitoner in case FIR No. 74/90 was not only baseless and unjustified but was clearly actuated by malice and was for ulterior motives. There cannot possible be a worst example of the high-handedness and mis-use of powers of those in authority at the relevant time. It is a matter of great concern and anguish that the apparatus of the State was let loose to terrorise a public servant in such a blatant manner as a measure of political victimization with a view to deter him for performing his lawful duties. If the liberty and honour of a person as highly placed as the petitioner who was an Officer in Grade-22 was not safe, one can only shudder at the fate of ai. Ordinary citizen of this country. It is indeed unfortunate and highly regrettable that such oppression which is clearly violative of Articles 4 and 14 of the Constitution ol Islamic Republic of Pakistan. 1973 was let loose which cannot but be condmned.
15. Accordingly, I have no hesitation in declaring that the entire proceedings taken against the petitioner were wholly without lawful authority and ol no legal effect. The petitioner may, if so advised, seek such further remedies as may be available to him under the law before the appropriate Court/Forum. A copy ol this judgment shall be'. Gent to the Government of Punjab through its Chief Secretary for proceedings in accordance with law against those responsible for this sordid incident.
The petition is allowed in the above terms with costs.