Muhammad Yasin petitioner filed this petition under section 491, Cr.P.C. For the recovery of the detenus namely Muhammad Amin and Zulfiqar from Police Station Cantt., Multan on the ground that their detention was illegal which was made at the instance of one Muhammad Saleem who wanted to forcibly get the possession of the land from him.
2. A bailiff was deputed who went to Police Station Cantt., Multan on 20-1-1995 at 2-00 p.m. Zulfiqar Ahmad and Muhammad Amin were found sitting in the courtyard who intimated him that they were apprehended by the police on 20-1-1995 at 5-00 a.m. From their houses. Muhammad Khalid, S.I. Also came there who informed the said bailiff that he had arrested both the accused at night time who were apprehended from inside the room when about 200 persons were collected and there was apprehension of breach of peace as between the parties there was a dispute about a plot regarding which the civil suit was pending in the Civil Court.
3. Today I have recorded the statement of Muhammad Khalid, S.I. Which is reproduced as under for the sake of convenience:--- "I left Police Post Mall Road, Multan on 19-1-1995 at 5-45 p.m. For Gasht of the area alongwith Muhammad Ashraf Constable No.581 and Abdur Razzaq Constable No.2212 on a motor-cycle owned by a person known to me. I cannot tell the number of the motor-cycle. A copy of relevant report No.6 dated 19-1-1994 is Mark 'A'. At 3-00 a.m. I received a wireless message that the thieves were in one room who have been caught by the persons of the area. I cannot tell the name of the operator. I reached the relevant place near Choongi No. 1, Kachi Abadi, Multan. I arrested Muhammad Amin and Zulfiqar alleged detenus present in the Court today. Muhammad Saleem gave me the written complaint. I made some enquiry at the place. I prepared the site-plan and recorded the statements of Muhammad Amin, Zulfiqar and Muhammad Saleem. One compromise deed was also written at the spot. The photostats of the documents are Mark ' B' to Mark ' G'. I took both the parties including Muhammad Amin and Zulfiqar alleged detenus to police Station Cantt.
Multan at 4-15 p.m. I did not make any entry in the daily diary of Police Station Cantt. Multan and left Muhammad Amin and Zulfiqar there from where they were recovered by the Bailiff of this Court as is also mentioned in report Mark 'H' submitted by Maqbool Ahmad Inspector/S.H.O., Police Station Cantt. Multan today. From there I went to Police Post Mall Road and made the entry of report No-10, dated 20-1-1995, a copy of which is Mark 'J'. At the place of occurrence the civil suit was brought to my notice and for that reason the compromise deed for the settlement of the dispute was also reduced into writing. "
3. I have heard the learned counsel for the parties as well as the police officers and gone through the record before me. A perusal of the statement of Muhammad Khalid, S.I. Is enough to establish that he has transgressed his authority. On the complaint there is nothing in the hand of Muhammad Khalid, S.I. As to where the same was handed over to him. In the complaint it is not mentioned as to what item(s) of Muhammad Saleem was stolen. Muhammad Khalid, S.I. Seems to have acted in haste. Muhammad Khalid, S.I. Prepared the site-plan and recorded the statements of Muhammad Amin, Zulfiqar and Muhammad Saleem. He also prepared a compromise deed for settlement of the affair. He is said to have left the Police Post Mall Road at 5-45 p.m. On 19-1-1995.
He took the detenus and parties to the dispute to Police Station Cantt. Multan, but did not enter the said fact in the daily diary. From there he went to Police Post Mall Road and entered the fact of the dispute between the parties. What he had been conducting from 5-45 p.m. To 3-00 a.m. In the area was not mentioned by him in the daily diary. All it shows that Muhammad Khalid, S.I. Wanted to help Muhammad Saleem from whom he obtained the complaint. My view is that whole of the material was collected and prepared by him after the Bailiff had recovered both the detenus as no photostat of the material was produced by him before the Bailiff. The fact of the matter is that a person may tell the lie but the documents do not tell the lie. If it was a case of theft for which both the detenus were arrested what was the necessity of executing a compromise deed for the settlement of the affair. That dispute is already pending in the Civil Court which is the best forum for determination of the rights of the contestants. I, therefore, hold that both Muhammad Amin and Zulfiqar were in the illegal and unjustified custody of S.H.O., Police Station Cantt. Multan. I accept this petition. They are released forthwith. The dispute between the parties is pending before the Civil Court and it is proper that the same is resolved by the Civil Court. Muhammad Khalid, S.I., Police Post Mall Road, Multan Cantt., Police Station Multan Cantt. Is warned to be careful in future.