ORDER SHAFIMUHAMMADI, J.- By this common order I intend to dispose of the above bail applications which have been moved on behalf of four applicants namely Philips Samuel, Sohail Jan, Qayyum Masih and Siddique Masih, after their failure to get bail from the trial Courts in FIR No. 802/1991 lodged at Police Station Ferozabad (C.1 A.) Karachi and in FIR No. 13/1992 lodged at Police Station Baloch Colony, Karachi, both registered under section 17(3) Offence Against Property (Enforcement of Hudood) Ordinance, 1979, (hereinafter referred to as the EHO). The Prosecution conduct, appearing from the facts on record, is the most scandelous and un-appredable especially in the light of this reality that all the applicants belong to the minorities who need more protection of their fundamental rights to be provided by the State, as compared to others, in every Islamic Country.
It is necessary to give a brief summary of that conduct in the forthcoming paragraphs with this hope that such things would not be repeated in future.
(i) The applicants were arrested on 26.7.1992 in F.I.R. No. 40/1990 registered at Police Station New Town, Karachi U/S 17(3) of the EHO. Their remand was obtained from 27.7.92 to 6.8.1992 and then they were shown released under section 169 Cr.P.C, on 6.8.1992.
(ii) They were again shown arrested on 10.8.92 in F.I.R. No. 266/1992 registered at Police Station Clifton U/S 17(3) of the EHO. Their remand was obtained from 11.8.1992 to 24.8.1992. They were again shown to have been released U/S 169 Cr.P.C, on 24.8.1992 but it cannot be believed that the applicant enjoyed any freedom from 6.8.1992 to 10.8.1992 which is the period between their first so called release in FIR No. 40/1990 and the second arrest in FIR No. 266/1992.
(i.e) They were again shown arrested on 26.8.1992 in FIR No. 358/1991 registered at Police Station Gul Bahar U/S 17(3) of the EHO and after the expiry of remand, they were shown released on 2.9.1992 U/S 169 Cr.P.C.
(iv) They were again arrested on 2.9.1992 in FIR No. 111/1990 registered at Police Station Bahadurabad U/S 17(3) of the EHO. Their remand was obtained till 09.09.1992. On 9.9.1992, statements of applicants Philips Samual and Qayyum Masih were recorded under section 164 CrP.
C. And they were sent to judicial custody on the same day i.e. 9.9.1992 while the remaining two accused persons were kept in custody up to 16.9.1992 and then shown released U/S 169 Cr.P.C. But admittedly, they were not released by the police under the pretext that on account of two holidays on 17th/18th September, 1992, they were kept on rahdarie.
(Note:- At least I am not aware of any such law of rahdarie)
(v) The unfortunate applicants were again shown arrested on 9.9.1992 in FIR No. 802/1992 registered at Police Station Ferozabad under section 17(3) of the EHO. It was astonishing enough to spot that, when, two accused were sent to Judicial custody on 9.9.1992 and other two were released on 16.9.1992 U/S 169 Cr.P.C., then, how they were shown arrested on 9.9.1992 in FIR No. 802/1992.
However, it appears from the record that their remand was obtained uptill 23.9.1992 and interim challan of the case was submitted before the Court on 23.9.1992. Hence it is obvious that they were sent to Judicial custody after 23.9.1992 because on that day they were also shown arrested in FIR No. 13/1992 of Police Station Baloch Colony under section 17(3) of the EHO. The last two above- mentioned F.I.Rs are the subject matter of all the six applications mentioned above.
In the light of above summary, the so-called competency of the I.O. Needs no comments but can be realised by every sensible citizen of Pakistan as well as by the superior police officials with whom, this I.O. Is/has been working.
3. Besides the concerned police-official, the Magistrate, who granted, remand again and again, also did not play an appreciable role. It could not be expected from any learned and responsible Magistrate to grant remand for 14 days at a time as was done in the case of present applicants in F.IJR. No. 266/1992 registered at P.S.Clifton because such conduct is against the spirit and requirements of the words "from time to time" used in section 167(2) Cr.P.C. Moreover, when the police officers were going on releasing these applicants under section 169 Cr.P.C, in different cases, one after the other, then the Magistrates were expected to be very careful in granting remand again and again instead of passing stereo-typed orders as was observed by this Court in the case of present applicants.
4. It has been observed in several cases that S.H.O/I.OS, has started releasing accused person, finally and not provisionally, during the pendency of remand obtained from the Magistrates in disregard of Section 169 Cr.P.C, by giving an impression that they have such power to do so. This impression is not only totally misconceived but is a cause of corruption also and the Magistrates/trial Courts are directly responsible for such misconception and corruption because they accept the report of the police-officers submitted U/S 169 and 170 Cr.P.C. IPSO-FACTO and never brother to pass speaking order U/S 173 Cr.P.C. Due to this reason, both these sections have become money making madunes for the corrupts.
For our ready reference Section 169 Cr.P.C, is reproduced below:- "169. Release of accused when evidence deficient.-If, upon an investigation under this Chapter, it appears to the officer-in-charge of the police-station, or to the police-officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct to appear, if and when so required, before a Magistrate empowered to take cognizance of the offence of a police- report and to try the accused or send him for trial."
A bare perusal of the above section shows that if an accused is in police custody under Judicial remand granted by a Magistrate under Section 167 Cr.P.C, and the I. O. Of the case fails to collect sufficient evidence or has no reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, then such person shall be released by the police-officer, after taking a bond, with or without sureties, for his appearance before a Magistrate (or trial Court) empowered to take cognizance. The words 'as such officer may direct' used in Section 169 CrJ.C. Are related to the words "with or without sureties. Therefore the police-officer may or may not ask the accused to produce sureties at the time of releasing him on execution of bond. The intention of the legislature regarding executing of bond seems nothing but to ensure the appearance of the accused before the court. Therefore, not only the provisionally released accused be directed to appear before the concerned court but-the concerned Police-officer, who prepared the report U/S 169 Cr.P.C, and released the accused on bond, should also appear before the said court on a specific date. If the Court is satisfied with the police report, an order would be passed U/S 173(3) Cr.P.C, by the court for the discharge of the bond or otherwise as the court thinks fit and if the court considers that the evidence, so collected by the police is sufficient to put the person on trial, then an order would be passed to re-arrest the accused. It is thus, evident that the police report U/S 160 Cr.P.C, is not conclusive or final unless an order is passed by the Magistrate or trial Court U/S 17(3) Cr.P.C. Thus the Magistrates/trial Courts are legally bound to pass speaking orders on such reports. Such an order would not be possible unless the Magistrates go through the police-report along with all other concerned papers through and dp not treat these reports as sacrosanct Gospal Truth, as is being done now-a days by most of the Magistrates and the trial Courts. A series of judgments, including the cases reported in NLR 1984 (Criminal) 691, PLD 1972 S.C. 81, 1977 SCM R 27 & 1977 P.Cr.L.J.
114 can be referred in connection with the police-reports and their sanctity. The Magistrates or trial Courts should not presume that their duties U/S 173(3) Cr.P.C, have to be performed by the High Courts or the Supreme Court. It is, therefore, expected that in future, this kind of burden would not be shifted by the Magistrates from their shoulders to the shoulders of the superior Courts and if this practice continues, the Supreme Courts would be left with no other alternative but to take certain serious steps against such Courts as well as against the police-officers.
5. In the cases of present applicants the Magistrates granted remand in a routine at least in 4 cases in which the police claimed to have released the accused under section 169 Cr.P.C. There is nothing on the record to show that the police released the applicants on execution of bond and the Magistrates passed any order U^S 173(3) Cr.P.C. The S.H.Os or I.Os can keep any person in custody for a period not exceeding 24 hours and can release such an accused if the investigation has been completed within 24 hours and the said investigation did not show any evidence against the accused. But no police-officer can detain in custody any person arrested without warrants for a longer period exceeding 24 hours (Section 61 of Cr.P.C). If the investigation cannot be completed within 24 hours, custody of the accused with the police would become illegal unless order is obtained from a Magistrate under section 167 Cr.P.C. When such order has been obtained, then the accused is in custody of the police under the orders of the Court and final order of release would also be passed by the Court empowered to take cognizance, under section 173(3) Cr.P.C., only after going through the report submitted under section 169 Cr.P.C, prepared by the police. If this section is properly acted upon, it would serve several purposes such as:
(i) If the accused have &en actually released by the police, then this reality would come on record of the concerned Court as soon as the released accused appears before the Court;
(ii) The Magistrates would be in a position to know whether, on the face of record, section 169 Cr.P.C, of 170 Cr.P.C, has or has not been violated by the concerned police-officer; (i.e) The Magistrates would be able to consider properly whether request of police for grant of remand be accepted or refused, in the circumstances of the case.
(iv) The competency of the concerned police officer and his past conduct as well as the conduct of the Magistrates would remain open before the Higher Courts and other Authorities.
6. The learned counsel, Mr. Muhammad Aslam Rana also drew my attention to the statement of D.S.P. Tajammul Hussain/S.D.P.O. Ferozabad, Karachi dated Nil wherein he had stated that custody of the accused persons had been obtained on 4.10.1992 from Central Prison Karachi as they were produced before a Magistrate namely Ishrat Ali Siddiqui for identification parade. It is not clear under what law, the Jail Authorities handed over the custody of these applicants to the D.S.P, and on whose orders ? If an accused is sent to Judicial custody under the orders of a Court, then the Jail Authorities can had over the custody of such accused person to any police-officer under the order of the same Court. Neither the police has any right to get the custody of accused persons from Prison, once sent in Judicial custody by a Court, nor the Jail Authorities are supposed to had over such custody to any police officer without receiving any orders from the competent Court or from any competent authority empowered to issue such orders under any specific law.
Unfortunately, the record of the police is totally silent on this point. If the applicants were required for identification parade, it could be properly had in the premises of the Prison where dummies could be arranged easily in accordance to the requirements of law related to the identification instead of holding such identification in the Court premises of a Magistrate where such dummies are usually not available.
7. When these applications were tabled before me and argued by the learned Advocates they created certain doubts in my mind about the conduct of D.S.P. Tajammul Hussain, hence I ordered D.I.G. Police (Javed Iqbal) to hold enquiry and he was good enough to appoint S.S.P. Security (Shahab Mazhar Bhatti) for the said purpose. Although an effort was made by the S.S.P, to justify the conduct of D.S.P. Tajammul Hussain with reference to section 23 of the Police Act read with sections 54 and 61 of Cr.P.C, yet certain portions of the report were sufficient to expose everything.
Section 54 Cr.P.C, contains nine clauses and each clear contains different situation from the other where a police-officer can arrest a person without warrants. These powers u/s 54 Cr.P.C, are very were to be acted upon by any police-officers swiftly without observing formalities but this Section does not give unqualified powers in all cases to police-officers to use the same care lessly and without caution. No arrest can be considered legal if wilful excess or un-justified use of powers U/S 54 Cr.P. OHs evident beyond any shadow of doubt. Arrest of the present applicants and their release one after the other in four cases continuously was apparently sufficient to prosecute the police officer U/S 220 P.P.C. The S.S.P, has not mentioned the specific portion or clause of section 54 Cr.P.C, according to which, the applicants could be arrested continuously in a series of cases in scandalous manners. Moreover, this report is also silent about the requirements of section 169 Cr.P.C, as discussed in the above lines. Similarly, the conduct of the police-officer was spotted luke warmly in this report with reference to the disposal of Cr. Misc. No. 796/1992 and 797/1992 by the High Court as well as about the facts of bogus signatures. If no action had been taken previously because no concerned person came forward against Tajammul Hussain, then what action has been taken by the Higher Authorities in the light of this report ? In spite of all these defects in the report of S.S.P. (Security) I have avoided to take any action against the police official only to provide him opportunity to wash away spots from his carrier in the remaining period of his service but, without prejudice to the rights of the applicants to be exercised by them as and when permitted by law.
8. It was never expected by me that D.S.P. Tajammul Hussain, who is stated to be senior police official, would submit the most defective charge-sheets. He has mentioned recovery of several articles recovered from the applicants possession after releasing these applicants in four similar cases by keeping them in custody from 26.7.1992 to 9.9.1992 under the shield of judicial remands and by submitting a note that so, and so articles are related to F.I.R. No. 802/1991 (P.S. Ferozabad) while the remaining recovery belongs to F.I.R. No. 131/1992 (P.S. Baloch Colony). But the whole report is silent about the valuation of the property alleged to have been robbed from the applicants. If the value of the robbed property is less than 'Nisab' as defined in section 6 of the E.H.O., then to challan such accused under section 17(3) of the said Ordinance does not seem to be proper. Similarly, it is also not clear from the police-papers whether the articles, stated to have been recovered, have or have not been identified by the persons from whom these articles were robbed. Progress of the cases is also not evident during the last 26 months i.e. October, 1992 i.e December, 1994.
9. The collective result of all these reasons, as discussed above, left me with no other alternative but to believe that there were sufficient grounds for further enquiry into the guilt of all accused persons. Hence, I ordered their released on bail on furnishing one surety in the stun of Rs.25,000/- and P.R. Bond in the like amount by each of them in each case to the satisfaction of the trial Courts.
In the light of all the circumstances as narrated in the above paragraphs, I consider it necessary to issue the following instructions also:-
(i) Copy of this order be sent to D.I.G. Karachi who is required to place it in the service record of D.S.P. Tajammul Hussain with or without any directions as to be deemed fit and proper by him;
(ii) The Sessions Case No. 640/1991 related to FIR No. 802/1992, pending before IV Addl. Sessions Judge Karachi (East) be transferred to the Court of Vth Additional Sessions Judge Karachi (South) where Sessions Case No. 418/92 related to FTR No. 13/1992 is also pending, (through their Sessions Judges) so that both the cases should proceed together and be decided at the same time. A Report showing progress of the cases be sent to the High Court on or before 30th June, 1995. These matters be put before this Bench after 30th June, 1995 also that progress could be seen.
(i.e) The copy of this order be also sent to the District Judges and the Deputy Commissioners Who are required to issue specific instructions to their subordinate Courts/Magistrates to pass speaking order U/S 173 Cr.P.C, whenever any report U/S 169 & 170 Cr.P.C, is submitted by the concerned police-officials.