' This is a petition filed under section 491 of the Code of Criminal Procedure for the recovery of Mst.
Lal, Ghulam Haider, Elahi Bakhsh and Riaz, close relatives of the petitioner, from the alleged illegal and improper custody of the S.H.O., Police Station Taranda Muhammad Pannah, District Rahimyar Khan. According to Naseer Ahmad petitioner on the night falling between 14/15-7-1997 at 4-00 a.m.
The S.H.O. Police Station Taranda Muhammad Pannah and the police party trespassed his house by scaling over the wall who took away Mst. Lal aged 70 years and Ghulam Haider forcibly in a vehicle, while his sons Elahi Baldish and Riaz Ahmad were arrested afterwards.
2. A Bailiff was deputed who reached Police Station Taranda Muhammad Pannah, District Rahimyar Khan on 15-7-1997 at 5-20 p.m. He has submitted his detailed report. After his entry in the police station he got the main gate closed by introducing himself and took into his possession the Daily Diary. Riaz Ahmad alleged detenu was found sitting at a Charpai in the barrack of the constables.
However, Mst. Lal, Ghulam Haider and Elahi Bakhsh were not present in the Thana. Riaz Ahmad alleged detenu -told the Bailiff that on 15-7-1997 he was going to his house on his tractor bearing No,9991-MH when on the Canal Taranda Muhammad Pannah he was arrested by 7/8 persons of police alongwith the tractor who took him to Thana alongwith the tractor where he was belaboured. Riaz Ahmad also intimated the Bailiff that Mst. Lal, Ghulam Haider and Elahi Bakhsh were also detained in the Thana who were released some time before his arrival there.
3. According to the entry in the Daily Diary, the S.H.O. Had gone to Liaqatpur. The Bailiff was told that Riaz Ahmad was arrested under section 115 of the Motor Vehicles Ordinance, 1965 as he had not the papers of Tractor No,9991-MH with him and that the remaining persons were not apprehended. In the Daily Diary the arrest of Riaz Ahmad was not entered.
4. The S.H.O. Has taken the stand that only Riaz Ahmad was arrested under section 115 of the Motor Vehicles Ordinance, 1965 and that the remaining persons were not arrested by him. According to him about the remaining persons a concoction was effected in the petition under disposal.
5. Before proceeding further, it would be better to reproduce for the sake of convenience section 115 of the Motor Vehicles Ordinance, 1965 as under:-- "115. Power to detain vehicle used without certificate of registration or permit.--- A Police Officer authorised in this behalf or other person authorised in this behalf by Government may if he has reason to believe that a motor vehicle has been or is being used in contravention of the provisions of subsection (1) of section 21 or without the permit required by subsection (1) of section 44 or in contravention of any condition of such permit relating to the route on which or the area in which or the purpose for which the vehicle may be used, seize and detain the vehicle, and for this purpose take or cause to be taken any steps he may consider proper for the temporary custody of the vehicle."
6. On my query the S.H.O., Police Station Taranda Muhammad Pannah intimated that he had received the direction from the Superintendent of Police, Rahimyar Khan to check the vehicles in the area. However, when questioned in the matter he could not produce a certified copy of the aforesaid type of order or its entry in the Daily Diary of the police station. A perusal of the aforesaid section 115 of the Motor Vehicles Ordinance, 1965 has made out that a Police Officer authorised in this behalf or other person authorised in this behalf by the Government can proceed towards the aforesaid type of working. My view is that to take the law in his hands, the S.H.O., Police Station, Taranda Muhammad Pannah has falsely, without any legal justification and through the transgression of authority has detained Riaz Ahmad under the garb of the taking into possession of his tractor. The Police Officer is not competent to arrest any person due to the violation of section 115 of the Motor Vehicles Ordinance, 1965. This being the position the defence created and coined by the S.H.O., Police Station Taranda Muhammad Pannah is simply concocted, false and ineffective in the eyes of law who arrested Riaz Ahmad without any legal justification. It is proper to express that S.H.O., Police Station Taranda Muhammad Pannah is neither posted in Traffic Police nor is a member of Highway Police.
7. Riaz Ahmad was arrested without factual or legal justification who is declared as a detenu and has been set at liberty to go to a place of his own choice...
8. The Bailiff was intimated by Riaz Ahmad released detenu in Police Station Taranda Muhammad Pannah on 15-7-1997 when he, reached that Mst. Lal, Ghulam Haider and Elahi Bakhsh were released a while before by the police. I have disbelieved the S.H.O. Who took up the aforesaid stand and rather made the futile attempt to justify the arrest of Riaz Ahmad released detenu. It is in the petition under disposal filed under section 491, Criminal Procedure Code that the S.H.O. Alongwith police party removed forcibly Mst. Lal aged 70 years and Ghulam Haider from the house of the petitioner after trespassing the same through scaling over the wall. The petition is also supported by an affidavit. When I have disbelieved the S.H.O., I have every justification to believe the petitioner and to hold that Mst. Lal, Ghulam Haider and Elahi Bakhsh were released some time before the arrival of Mr. Muhammad Jamil, Bailiff.
9. At this stage, I am tempted to express that the S.H.O., Police Station Taranda Muhammad Pannah transgressed his authority. It has become a common feature these days that the police takes the law in his hands by trespassing the houses of the citizens. Under the Islamic Law and according to the Code of Criminal Procedure without getting permission of the occupant or without a search warrant no stranger including a Police Officer can enter the house of any person. The Police Officers should keep in mind that the citizens are showing the restraint and broad-mindedness in such matters. Otherwise if any stranger including a member of the police force is confined in the house or is belaboured or injured in such circumstances, the inmates would not be committing any offence being justified in the matter. These are the days when the police should know that the people are becoming right conscious and the violation of such human rights which also offends the legal ethics shall not be tolerated by the people any more. It is better for the police to show regards to the honour and respect of all the citizens of the country who earn the livelihood by the dint 'of hard labour.
10. As expressed above, the illegal detention of citizens by the police has become an order of the day. It is violative of law, justice and fairplay which can be termed to be a serious matter and no exception can be taken thereto. The illiterate poor persons in rural society need protection of this Court. To deprive a person of his liberty particularly in an Islamic State is detestable offence and as such the action of the Police officer cannot be ignored who must be burdened with costs in view of the rulings published as Abdul Qayyum v. S.H.O., Police Station Shalimar, Lahore 1993 PCr.LJ 91 and Lal Din v. S.H.O., Police Station Dehli Gate, Multan PLD 1996 Lah.
360. I direct Muhammad Ramzan S.-I./S.H.O., Police Station Taranda MuhammaddPannah to pay Rs,3,000 as compensation to Riaz Ahmad on 17-7-1997 (tomorrow) in the Court failing which the penal action shall be taken against him and the recovery of the amount shall be effected from him as arrears of land revenue.
11. Police Officer has also been directed to refrain himself from wreak vengeance against the family of the petitioner failing which further legal action shall be taken against him. Tractor No,M.H./9991 and papers shall be returned to Riaz Ahmed today.
' A.R. Tayyab for Petitioner.
' Shabbir Ahmad Afghani, Asstt. A.-G. For the State.
ORDER OF THE COURT ' 17-7-1-997 In terms of order, dated 16-7-1997 an amount of Rs,3,000 has been paid by the Police Officer Muhammad Ramzan, S.-I./S.H.O. As compensation to Mr. A.R. Tayyab, Advocate who shall hand over the same to the released detenu Riaz Ahmad who has not arrived today. The Police Officer has been directed not to wreak vengeance on the family of the released detenu otherwise the law shall take its course. However, if any case stands registered against any relative of the petitioner, he can proceed in accordance with law.
' This case stands disposed of.