' Brief facts of the instant writ petition are that petitioner's son Muhammad Zarif Butt, aged about 22 years was allegedly arrested by Malik Muhammad Hussain, S.I. (Respondent No,2) on 11-3-1996 at about 3-30 a.m. From House No,40, Malik Ahmad Ali Street, Bund Road, Lahore. Malik Muhammad Hussain S.I. (Respondent No,2) had come to the place along with a police contingent consisting of about 10 to 15 persons, they gate crashed into the house of the petitioner, grossly misbehaved with the inmates of the house and took away petitioner's son Muhammad Zarif Butt. After arrest of Muhammad Zarif Butt, the petitioner and his son made hectic efforts to know about the whereabouts of Muhammad Zarif Butt, and came to know that he was being kept as a prisoner by Malik Muhammad Hussain, S.I. At Police Station Hanjarwal. It was further learnt that the detainee was being kept alternatively at Police Station Hanjarwal and in a room on the first floor of a nearby building used as a Utility Store under strict vigilance of police. According to the contention of the petitioner he and his sons met with respondent No,2 and enquired from him as to why Zarif Butt was being kept by him who tried to make a deal to release the said detainee. The petitioner thereupon contacted S.P. Saddar who refused to help him in this matter. He was constrained to file a habeas corpus petition bearing Criminal Miscellaneous No,273-H of 1996 in this Court and apprehended that the detenu is not required in any case and his custody/detention by respondent No,1 was absolutely illegal, unwarranted and improper. He further showed his apprehension that his son may be done to death by the police in a fake police encounter.
2. A bailiff was deputed by this Court to recover the detenu and produce him before this Court. The bailiff raided the police station but the bailiff failed to recover the detenu and the habeas corpus stood disposed of vide order dated 18-3-1996, in view of the aforesaid circumstances.
3. According to the contention of the petitioner the police became hostile and threats were offered to the petitioner and his family to negotiate with respondents Nos. 2 and 3 for the release of his son and that the petitioner, his sons and many friends met with Zarif Butt at Gulshan Ravi Police Station lockup on a number of occasions in the 1st week of March, 1996 and the first two weeks of April, 1996. On 7-4-1996 Zarif Butt appeared before Mr. Ghulam Mustafa Shehzad, Additional Sessions Judge, Lahore. The petitioner appeared there and moved an application informing the Court that his son who was arrested by the police was being kept by Muhammad Ashiq Marth, S.H.O. Police Station Gulshan-e-Ravi, Lahore in the lock-up of the said police station. On this application learned Additional Sessions Judge directed the S.H.O. To produce Zarif Butt in the Court on 15-4-1996. The petitioner along with Mehmood Hassan Butt, Moees Khan, Maded Khan and Muhanunad Rafiq Butt allegedly met with Zarif Butt at the lock-up of Gulshan-e-Ravi Police Station oft 134-1996 and remained with him for some time and the petitioner was shocked to hear that his son Zarif Butt had been murdered in a fake police encounter by Hanjarwal Police. According to the police petitioner's son Zarif Butt along with another unknown person committed dacoity in the area of Canal View and fired at a person, on the information of which, the police reached the scene of occurrence and encircled the accused persons who started firing at the police as a result of which the police also returned the fire resulting in the death of petitioner's son. According to the contention of the petitioner his son was murdered in cold-blooded way and a fake police encounter was made to cover death, and that thereafter the petitioner has been trying to get a case registered and send many telegrams to the 1.-G., Police, Home Secretary, Punjab, D.I.-G., Lahore Range,.S.S.P., Lahore, S.P.
Saddar, Lahore and others to register a case against the respondents but after being disappointed had filed this writ petition for registration of a case. Learned counsel for the petitioner, in addition, has placed on record copy of Judicial Inquiry Report conducted into the case of death of Zareef Butt who had died during police encounter on 13-4-1996 in the area of Police Station Hanjarwala.
This is a detailed report. The Enquiry Magistrate inspected the record and the evidence. He also heard the parties and came to the conclusion that in fact Zareefa Kashmiri was found to be arrested by the Police but he could not give a conclusive report as he was under the impression that the matter is pending adjudication before the High Court.
4. Parawise comments were submitted by the S.S.P., Lahore wherein he has disclosed that S.P., Saddar was deputed to make a thorough probe into the allegations embodied in the writ petition and after a discreet inquiry he has reported that petitioner's son Zareef Butt was neither arrested by respondent No,2 nor kept in illegal detention and that the actual position was that on 13/14-4- 1996 S.I. Haseeb Anjum, S.H.O., Police Station Hanjarwal respondent No,3 along with his staff was present at Multan Road, Lahore for patrolling in the area. He received a wireless message to the effect that two unidentified armed Motorcycle riders had fired at Police party present on Naka duty at Mutlan Road near Canal View Housing Scheme and fled away towards Chungi Multan Road on Motorcycle No, LOP 1095, Honda CD/70. Accordingly respondent No,3 along with his subordinate staff started chasing the above said Motorcyclists, on his official vehicle. Near Khiaban ToWn, the said persons left their Motorcycle, took defensive position and opened fire at Police party. After giving due warning, the police also returned fire in self-defence. In the exchange of fire, one of the Motorcyclists died at the spot who was subsequently identified as Muhammad Zarif Butt. However, the other assailant managed to escape under the cover of darkness. One loaded mauzer and two magazines were found lying near the dead body besides Motorcycle No, LOP/1095, Honda CD/70. In this regard case F.I.R. No,100/96 dated 14-4-'.996 under section 324/353/186/34, P.P.C. Read with S.13 of the Arms Ordinance, 1965 was registered at. Police Station HanjarwaI and that judicial inquiry was also conducted by Mr. Abdul Razzaq Malik, M.I.C., Lahore under the orders of the District Magistrate, Lahore. He categorically denied all allegations in the writ petition. He also denied that the petitioner approached respondent No,2 to inquire about the whereabouts of Muhammad Zarif his Son. He admitted that Criminal Miscellaneous No,273-H of 1996 was filed in the High Court but petitioner's son was not found in the police custody and accordingly habeas corpus petition was disposed of vide order dated 18-3-1996. He also disclosed that the factual position was that petitioner's son along with unknown person assaulted the police personnel on duty and they also returned fire in self-defence and as a result of which son of the petitioner died at the spot.
5. Learned A.A.-G. Has placed on record copy of F.1 R. No,40 of 1996 dated 12-4-1996 for the theft of motorcycle which stood recovered by the police. This F.I.R. Was registered on the application of Muhammad Sharif son of Haji Ghulam Qadir resident of r03/12, Allama lqbal Road, Garhi Shahu, Lahore against deceased and an unknown person. This motorcycle, according to the police Zimni, was the same on which deceased Zarif along with other accomplice arrived at the time of police encounter. He has also placed on record copy of F.I.R. No,175 of 1992 registered on 28-5-1992 under section 392, P.P.C. Read with section 17 of Ordinance VI of 1979 for the theft of VCR, Rado Watch and other ornaments. This F.I.R. Was also registered against four accused with their description and no one stands nominated. He has also placed on record copy of F.I.R. No,254 of 1992 dated 22-8-1992 under section 399/402, P.P.C. In this F.I.R. Zarif Butt is nominated. This F.I.R. Stood registered against three persons. However, Zarif Butt and Shaukat Ali are nominated in F.I.R. No,256 of 1992 under section 7 of Ordinance XX of 1991 read with section 13 of Ordinance XX of 1965 and F.I.R. No,100 of 1996 is registered lieu of the alleged police encounter.
6. I have heard learned counsel for the parties and have perused the record. The habeas corpus petition (Criminal Miscellaneous No,273-11 of 1996) was filed in the High Court on the apprehension of the petitioner that his son might be done to death. This habeas corpus petition was filed on 14-3- 1996. Although bailiff raided the police station but could not recover the detenu but the fact remains that this petition was filed with the apprehension of expected death of Zareef Butt.
7. A judicial inquiry was also held by the Judicial Magistrate. The statements of seven witnesses were recorded and on an application filed by the petitioner this inquiry was entrusted to a Judicial Magistrate. Petitioner's counsel desired to cross-examine the police witnesses but they were given an opportunity but no police witness appeared for cross-examination. The allegation of the petitioner was that his son was callously murdered by the police and the Enquiry Officer came to the view that the arrest of Zareef Butt was proved. There is nothing on record to disbelieve this report. Moreover all the circumstances present in this case do convince this Court that the deceased was in the custody of the police.
8. I have also perused the parawise comments submitted by the Senior Superintendent of Police, Lahore. The very start of this report is that S.P. Saddar was deputed to make a thorough probe into the allegations embodied in the writ petition. After a discreet inquiry he has reported that petitioner's son was neither arrested by the respondent No,2 nor kept in illegal detention and that the factual position is that petitioner's son alongwith his unknown accomplice assaulted police personnel on duty and the police also returned fire as a result of which he died at the spot.
9. The Senior Superintendent of Police was well-aware of the fact that F.I.R. No,100 of 1996 under section 324/363/146/34, P.P.C. Stood registered against the deceased and his accomplice. The petitioner on the other side was constantly alleging and sending telegrams to the I.-G. Of Police, Punjab, Home Secretary, D.I.-G., Lahore, S.S.P., Lahore, S.P., Saddar and other authorities that his son was done to death by the respondents whilst in their custody. Section 154, Cr.P.C. Is reproduced as follows:-- "154. Every information relating to the commission of a cognizable offence if given orally to an officer in charge of police station, shall be reduced to writing by him or under his direction and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf. "
' This section also relates to the information.
Section 155 further strengthens information given under section 154 read with other sections which relate to information and investigation into facts alleged by the information. It is surprising that information was already with the police high-ups and they were also very much aware of the fact that an F.I.R. On behalf of the police stood registered against the deceased and his accomplice for the alleged police encounter; they could very well order for recording of counter version of the petitioner in the same F.I.R. Or registration of an independent F.I.R. And then a discreet inquiry into the facts alleged in both the F.I.Rs, could be ordered and inquired into by a competent police officer. This was not done.
10. Every citizen in this country is Constitutionally safeguarded against breach of his fundamental rights; they also stand controlled and governed by the codified provisions of law against breach of their rights and are also safeguarded against certain wrongs. As soon as the police lays hands on any citizen accused of certain offence there and then the provisions of Cr.P.C. Instrumental to the administration of ideal criminal justice at once comes into action and the police machinery is under duty of law to safeguard the accused's life and liberty. They are refrained to take law into their hands and submit the accused to injustice and allow a wrong to go unchallenged in a Court of trial by way of denying him an opportunity of clearing himself being falsely implicated. Therefore, the provisions of Cr.P.C. Are very clear in this respect. If the police arrests any accused person concerning any offence they are bound to incorporate the entry of arrest of that person in the daily diary and produce him within 24 hours in a Court of competent jurisdiction and follow procedure laid down in the Cr.P.C. The purpose of this legislation is to ensure a privilege given to an accused to stand a trial. This privilege is rather a right to the accused person so that no one should go condemned unheard and the purpose of law is that a person on trial must be given an opportunity to defend himself so that no one should be wrongly convicted and no guilty person should escape.
The machinery of the police is governed by the Police Code and also strictly controlled by law and even strict rules exist to interrogate a person accused of any offence; they are not possessed with any power to take law in their hands and do away with the life of the accused in any manner and denying him from the opportunity of clearing himself through trial due to victimization or personal spite. A trial is only fair trial which ensures both sides that no one who is justly accused will be acquitted.
11. The machinery of criminal justice should be ideally adjusted and the police is not possessed with this right to murder or kill or take life of any citizen accused of any offence for the reason that such person keeps a previous bad record. A person keeping previous bad record may be innocent in the case in which he is arrested because under the law presumption of innocence will continue until he is proved guilty. If the police machinery takes law in their hands they are to be dealt with in the same manner as the ordinary citizens are dealt with. In the instant case at one place the police is alleging encounter and on the other side the petitioner who is real father of the deceased is apprehending that his son was murdered during custody which on its face discloses commission of cognizable offence, as all the police authorities have failed to exercise their power within the provisions of law, therefore an interference is called for in this matter. This writ petition is allowed and the D.S.P. (Rana Shahid) present in Court is directed to register a case when a written complaint by the petitioner is handed over to him against the persons nominated in that complaint.
12. The S.S.P., Lahore is directed to entrust the inquiry of both the F.I.Rs, to the Crime Branch Punjab, Lahore who shall hold an independent and fair inquiry in the matter.
13. There shall be no order as to costs.