' This is a petition under section 491, Criminal Procedure Code, 1898 (Cr.P.C.) filed by one Ali Ahmed alleging therein that his son Aqeel (hereinafter referred to as the detenu) who is employed as clerk in the Office of the Assistant Registrar, Cooperative Societies, Hyderabad has been illegally and unlawfully arrested on 23-7-1998 at about 12-00 noon and was detained at Police Station Bhitai Nagar. This petition was filed on 28-7-1998 and was placed before a learned Single Judge of this Court who on the same day has directed the Deputy Registrar of this Court to inspect Baldia Police Station, Hyderabad and to examine the record in order to ascertain the reasons of the detention of detenu. The Deputy Registrar was further permitted to examine the record of Bhitai Nagar Police Station as well. Respondents Nos.4 and 5, namely Khalil Shah, A.S.I.P. Bhitai Nagar Police Station and S.H.O., Baldia Police Station, Hyderabad, respectively, were directed to produce the detenu in Court on the very next day.
2. On 29-7-1998, detenu was produced by S.H.O., Baldia Police Station namely S.I.P. Jehangir Ahmed.
A learned Single Judge of this Court, Raja Qureshi, J., examined the said S.H.O. Of Baldia Police Station who stated in presence of respondent No,1, Muhammad Yaqub Alamani, D.S.P., that it was under his order that the detenu was kept in the lock-up some three days prior to the visit by the Deputy Registrar of this Court. On the same day, the Deputy Registrar also filed his report. Following are the relevant paragraphs of Deputy Registrar's Report dated 28-7-1998:-- ........The undersigned visited lock-up of Police Station Baldia where detenu Aqeel son of Ali Ahmed Qureshi was detained alongwith two other persons Ashiq Ali son of Ghulam Ali and Ashiq Ali Bhatti son of Nabi Bux Bhatti. The detenu Aqeel informed the Deputy Registrar that he has been detained at Baldia Police Station for last about 3/4 days without any case and being produced before any Court of law by A.S.I. Khalil Shah and A.S.I. Aftab Memon of Bhittai Nagar Police Station. Prior to that he was detained at Bhittai Nagar Police Station with effect from 23-7-1998."
' The S.H.O., Baldia Police Station informed the Deputy Registrar that detenu Aqeel and other two persons named above have been detained at the lock-up of Baldia Police Station at the verbal orders of D.S.P., Qasimabad Muhammad Yakoob Alamani since last about 3 days without any entry in Roznamcha or any case at Baldia Police Station.
' Other two persons also complained to Deputy Registrar about their illegal detention by the Bhittai Nagar Police first at Bhitai Nagar Police Station and then at Baldia Police Station.
' Roznamcha Register of Baldia Police Station was obtained to get photocopies of entries with effect from 23-7-1998 to 28-7-1998 and returned back to A.S.I. Ghulam Rabbani Surewal.
' After that Deputy Registrar visited Bhittai Nagar Police Station where neither D.S.P. Muhammad Yakoob Almani nor S.H.O. Khuda Bux Thebo or the duty officer was present. But A.S.I. Irtaza Hussain Shah and A.S.I. Khalil Shah (respondent No,4) were present. Entry No,16 was made in Rozenamcha Register of Bhittai Nagar Police Station with regard to the visit of police station by the Deputy Registrar.
' A.S.I. Khalil Shah was unable to show the Deputy Registrar any record. He only stated that all the record with regard to the detention of Aqeel and other two persons is with D.S.P. Muhammad Yaqoob Almani and he can only clarify the position.... .... "
3. The detenu was ordered to be released by this Court upon furnishing one solvent surety in the sum of Rs,75,000 and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court. On 18-8-1998, the personal belongings of the detenu as well as his motorcycle was ordered to be returned on execution of Superdginama. Despite all this, the petitioner insisted to proceed with the petition for awarding monetary compensation which fact is reflected in the order of this Court dated 18-8-1998 which reads as follows:-- "... ...The alleged detenu has been released from the alleged custody of respondents Nos. 1 to 5. In normal circumstances, this petition would have been disposed of as it has served its purpose and so far as release of the alleged detenu is concerned but, Mr.Kamaluddin, Advocate relied on 1998 PCr.LJ 1035 and contended that the alleged detenu was kept in wrongful confinement by respondents Nos.1 to 5, and, as such, the applicant/alleged detenu is entitled for payment of compensation and costs by respondents Nos. 1 to 5. The learned counsel appearing for the parties are directed to come prepared on the next date of hearing to address this Court on the point of grant of compensation/costs to the applicant/alleged detenu."
4. We have heard Mr. Kamaluddin, Advocate for the petitioner, Mr. Naimatullah Qureshi, Advocate for respondent No,1 and Mr. Mian Khan Malik, Additional Advocate-General for respondents Nos.2 to
6. In support of his contention, Mr. Kamaluddin has referred to the above-noted facts and contended that in view of the rule laid down by a Division Bench of this Court in Mazharuddin v. The State 1998 PCr.LJ 1035, the detenu is entitled to grant of monetary compensation. Mr. Naimatullah Qureshi argued that the allegations made in paras. Nos.6 to 9 of the main petition have been denied by the respondent No,1 and, therefore, these being disputed facts, the detenu is not entitled to any relief as awarded in the case of Mazharuddin (ibid). He has also referred to the affidavit of detenu which was filed on 5-8-1998 where nothing has been said about respondent No,
1. He confessed that under these circumstances respondent No,1 could not be held responsible for the alleged detention. Mr. Mian Khan Malik, learned Additional Advocate-General, has also attempted to draw distinction between the facts of the case of Mazharuddin and the present case. In the end, he made a statement on behalf of respondents Nos.2 to 5 that these defendants are surrendering themselves to the mercy of this Court. In the case of Mazharuddin (ibid), a Division Bench of this Court comprising Sabihuddin, J. And one of us (Rasheed A. Razvi, J.) after considering different provisions of Cr.P.C. Article 199 of the Constitution and some 52 reported cases pertaining to Pakistani, Indian and English jurisdiction as well as Sri Lankan cases, held inter alia that whenever a Court finds the detention of a citizen to be unlawful and mala fide it can, apart from directing his release, pass any suitable order including for payment of such amount that it may consider appropriate by way of compensation for distress and humiliation on account of deprivation of liberty and also to serve as deterrent for those who misuse public power and invade the liberties of citizens in flagrant disregard 'of the law. However, reservation was expressed whether monetary compensation could be imposed while dealing with a matter of habeas corpus under section 491, Cr.P.C. To meet this situation, Mr. Kamaluddin has referred to the following cases wherein learned Single Judges of Lahore High Court and Sindh High Court have awarded monetary compensation/cost in the cases arising out of a petition filed under section 491, Cr.P.C.:--
(1) Muhammad Akram v. The State 1998 PCr.LJ 1558;
(2) Haji Noor Hassan v. Khalid Marood, Inspector/S.H.O., Police Station "B" Division, Rahimyar Khan 1998 PCr.LJ 1451;
(3) Naseer Ahmad v. S.H.O., Police Station Trindah Muhammad Pinnah, District Rahimyar Khan 1998 PCr.LJ 196;
(4) Ghulam Mustafa v. S.H.O., Police Station Zahir Pir, District Rahimyar Khan and another 1997 PCr.LJ 367;
(5) Muhammad Aslam v. S.H.O., Police Station Nankana Sahib 1997 PCr.LJ 508;
(6) Hassan Muhammad v. The Station House Officer, Police Station Ahmadpur, District Sheikhupura 1997 PCr.LJ 1284;
(7) Mehboob Alam v. Station House Officer and 2 others 1997 PCr.LJ 1561;
(8) Shahid Hussain v. The State and others 1997 PCr.LJ 1582;
(9) Ahmad Bakhsh v. Saeed Ahmad, Inspector/S.H.O., Police Station Uch Sharif 1997 MLD 45;
(10) Lal Din v. S.H.O., Police Station Delhi Gate, Multan 1997 MLD 246; and
(11) Muhammad Manzoor v. S.H.O., Police Station Layyah, District Multan and another 1997 MLD 1331.
5. In the cases of Muhammad Akrarn and Shahid Hussain (cited at serial Nos.1 and 8 above, respectively), a learned Single Judge of this Court, M.L. Shahani, J. (as he then was) imposed a cost of Rs,4,000 each on the respondents. In the cases Haji Noor Muhammad, Naseer Ahmad, Muhamamd Aslam, Mahboob Alam, Ahmad Bakhsh, Lal Din and Muhammad Manzoor (cited at Serial Nos. 2, 3, 5, 7 and 9 to 11 above, respectively), a learned Single Judge of Lahore High Court, Muhammad Nasim Chaudhry, J., imposed cost and awarded monetary compensation to the detenus who were detained illegally and unauthorisedly by the officials. Reference was made to the cases Alamgir v. S.H.O., Model Town, Lahore 1983 PCr.LJ 766; Abdul Majid v. S.H.O., Police Station Rohilanwali, District Muzzafargarh 1995 PCr.LJ 1209; Abdul Qayyum v. S.H.O., Police Station Shalimar, Lahore 1993 PCr.LJ 91; Lal Din v. S.H.O., Police Station Delhi Gate, Multan, 1997 MLD 246. In Ghulam Mustafa (cited at Serial No,4 above), another learned Judge of Lahore High Court, Muhammad Nawaz Abbasi, J., ordered holding of departmental inquiry and fixing liability for the departmental action under the Police Rules against the respondent police officials who unauthorisedly detained a person. Same treatment was meted to the respondents/police officials in the case of Hassan Muhammad cited at Serial No,6 above. To meet the objection of Mr.Naimatullah that the scope of section 491, Cr.P.C. Is very limited and no order as to cost can be passed, we would like to quote a passage from the case In re: Juvenile Jail, Landhi, Karachi 1990 PCr.LJ 1231 where a Division Bench of this Court comprising of former Chief Justice Ajmal Mian and Mukhtar Ahmed Junejo, JJ. (as their Lordships then were) while interpreting sections 491 and 561-A, Cr.P.C. Observed, inter alia, as follows:-- "18. We are also inclined to hold that in a case in which interest of the public-at-large in relation to an issue of public importance is involved, the Court should adopt activist approach so that it may discharge its solemn obligation of protecting Constitutional rights guaranteed to the people. In the instant case, consideration of the above-quoted framed questions may involve, inter alia, interpretation of Articles 4 and 14 of the Constitution. The former guarantees the protection of law and to be treated in accordance with law which has been described as the inalienable right of every citizen, whereas, the latter guarantees the dignity of man by providing that the dignity of man and, subject to law, the privacy of home, shall be inviolable. It is, therefore, in our view, a fit case in which the Court should not decline to press into service its jurisdiction under section 491 of the Code merely on technicalities of not having been approached by an aggrieved person."
6. Awarding of cost in a matter of habeas corpus is not a new concept and is permissible under section 491, Cr.P.C. As argued by Mr. Kamaluddin. One may find more cases than cited by Mr. Kamaluddin where monetary compensation or cost was imposed in proceedings under section 491, Cr.P.C. Where the Courts came to conclusion that a person was deprived of liberty without any lawful authority or reason by the Police Officials. One of the earlier cases was Alamgir v. S.H.O., Model Town, Lahore 1983 PCr.LJ 76 which was decided some 16 years ago. In that case, detenu Niaz Ahmad and the other two ladies accepted the apology tendered by the concerned officer, despite that, a cost of Rs,500 was imposed on the police officers. In Abdul Qayyum (supra), cost of Rs,3,000 was imposed on the Police Officer/A.S.I. Naimat Ali for keeping in detention. Muhammad Rafiq without mentioning the fact in the daily diary. In Abdul Majeed (supra), the view held in Alamgir and Abdul Qayum (supra) was followed and the S.H.O. Of Police Station Rohelanwali was directed to pay cost of Rs,3,000 to the detenu Pir Bakhsh and Rs,2,000 to Muhammad Shafi on a specific date, i,e,, 16-11-1994 in the Court. It was further observed that in case of failure to pay the said amount, penal action shall be taken against the police officer, besides receiving the cost as arrears of the land revenue. Reference is also made to the case of Muhammad Ibrahim v. S.H.O., Police Station Sheikhupura 1990 PCr.LJ 1717. The S.H.O. And S.I. Involved in the detention of the petitioner's father, were ordered to pay a sum of Rs,2,000 to the petitioner as cost. It was observed by a learned Single Judge of Lahore High Court while imposing cost in the case of Muhammad Ibrahim (ibid) that "As the dignity of the alleged detenu has been violated in breach of the law, so it is the duty of the Court to render help and protect the same as far as possible. Thus guided by the Constitutional provisions, the petitioner has been ordered to be monetarily compensated and the compensation has been assessed tentatively which has been paid in Court". We are in full agreement with the views expressed by the learned Single Judge of the Lahore High Court in the case of Ibrahim.
7. In the case of Ilyas Masih v. Zafar Iqbal, S.H.O. Police Station Sathra, District Sialkot PLD 1992 Lah.
220 cost/compensation of Rs,500 was ordered to be paid by the S.H.O. To the detenu "for illegal act by the S.H.O. Which had caused loss to a free citizen of the State and driven him to incur expenses to come to Court and to seek his release". Another Single Judge of Lahore High Court in Faqir Muhammad v. S.H.O., Police Station Chak Jhumra 1992 PCr.LJ 1387 found the detenu detained in the police lock-up without showing his formal arrest in daily diary. The Lahore High Court ordered for the release of detenu and directed that the case be registered against the A.S.I. Under section 343, P.P.C. And with further direction the S.S.P. To place the said Police Officer under suspension pending investigation of the case against him by some D.S.P. A cost of Rs,2,000 was also awarded. In Mureed Hussain v. S.H.O., Police Station Civil Lines Dera Ghazi Khan 1993 MLD 1167, the detenu was found detained in Police Station without recording his arrest in Roznamcha or in any Zinmi for which an amount of Rs,5,000 was awarded as compensation to the detenu.
8. Apart from setting a detenu at liberty as a consequence of rule nisi, such detenu, is also entitled to be dealt with according to law. It is well-settled that where the Courts were satisfied that a detenu was being detained illegally, unauthorisedly or maliciously by the Police Officials, the High Court is competent to order for a departmental inquiry and for registration of cases. If any reference is needed, see Muhammad Siddique v. Raja Mumtaz, D.S.P., C.I.A. And another 1989 PCr.0 2002; Rehmat Bibi v. Station House Officer 1992 MLD 104; Muhammad Akram Lone v. Arshad Sindhu, S.H.O. Police Station Hajipura, Sialkot 1992 PCr.LJ 1701; Nasreen v. S.H.O. 1992 PCr.LI 948; Muhammad Rafiq v. S.H.O., Factory Area, Tehsil Ferozwala 1993 PCr.LJ 2199; Ghulam Rasool v. S.H.O., Police Station Qadirpur, Jhang 1993 MLD 277; Nasreen Akhtar v. S.H.O. 1986 PCr.LJ 2568; Mst. Bavi alias Rehmat Bibi v. S.H.O. 1985 MLD 43; Riaz Hussain Janjua v. B.A. Nasir and others 1990 PCr.L.I 716 and Umar Daraz v.
Rahim Bux and others 1989 SCMR 1280. There are instances where the High Court, while dealing with the petition under section 491, Cr.P.C. Came to the conclusion that the detention of a person requires justification and/or such detenu was arrested on the ground of suspicion, the petition was converted into bail application and detenu was released on furnishing surety; sometimes upon furnishing personal bond. Such approach was adopted in the case of Mst. Bavi alias Rehmat Bibi (supra) as well as in the cases Haji Muhammad Ashiq v. S.H.O., Police Station Kahna and another 1987 MLD 815; Bagheecha v. Station House Officer 1988 MLD 2443; Muhammad Akram and another v. The State 1988 MLD 2456; Mst. Zenab Bibi v. S.H.O. 1989 MLD 4038; Muhammad Aslam v. S.H.O., Police Station Dijkot, Tehsil and District Faisalabad 1990 PCr.LJ 1384 and Mst. Bashiran v. Station House Officer and others 1989 PCr.LJ 572 and Riaz Hussain Janjua (supra). We do not see any irregularity in adopting such practice. In order to do complete justice, a Court of Law is competent to convert one proceedings into another provided such cause remains within its jurisdiction.
9. Resume of all the aforementioned case-law leads us to conclude that where any cause is brought before the High Court as a result of proceedings under section 491(a) and (b), Cr.P.C. It will be permissible for the High Court to pass any of the following orders, namely:--
(i) To issue rule nisi for production of the detenu before the Court;
(ii) to set the detenu free;
(iii) to convert the proceedings into bail application and to grant bail to the detenu;
(iv) to order registration of case against Police Officer/private person who was found violating fundamental rights of the detenu;
(v) to direct Police Authorities for conducting departmental proceedings against the Police Officer found responsible for illegal detention;
(vi) where the Court is satisfied that the respondent police officers have acted in violation of the Court directions or failed to obey the same, to order institution of Contempt of Court proceedings against such person;
(vii) to award cost against the Police Officer and in favour of petitioner for the expenses incurred in getting the detenu released; (viii)to award monetary compensation to the detenu who was deprived of his freedom; and lastly,
(ix) to dismiss the petition where the detention is found to be lawful and bona fide.
' It needs to clarify that where the monetary compensation is awarded in favour of a detenu, it is always on the tentative assessm ent and may not be treated as final amount of damages for which the detenu, if deems necessary, may file a suit for damages for the loss caused to his person and property, mental, agony, shock and in cases of torture, for the injuries suffered by such detenu. All these aspects are subject-matter of a regular suit, where a detenu police officer will also be entitled to claim set off for the amount paid as compensation in proceedings under section 491, Cr.P.C.
10. There is no prohibition or bar in the entire provision of section 491, Cr.P.C. To pass any of the abovementioned orders. At the same time, we are conscious that the nature of proceedings under section 491, Cr.P.C. Are summary in nature and Court should avoid to undertake the process of recording evidence except to the extent of determining legality or otherwise of the detention. But, in case a petitioner succeeds in placing before the Court sufficient material indicating that the detenu was deprived of his liberty without lawful authority and without any reasonable cause and in violation of due process of law and where respondent is not able to legally justify detention of a person, in our view, the Court could pass any order in summary manner under section 491, Cr.P.C.
As mentioned above. It will be seen that earlier it was practice of the High Courts, particularly in cases where respondents were Police officials, to set the detenu at liberty if such detention was found illegal and unauthorised. This practice continued for quite a long period but the cases of illegal and unauthorised detention grew day by day. Then a time came when the Courts started referring cases of such highhandedness of the police officials to the Police Department for taking departmental actions but again such orders of High Courts did not prove deterrent to check atrocities committed by the Police Officials. The twentieth century has witnessed new meaning and scope of human dignity, freedom and liberty which have become one of the most previous human rights all around the world. On the other hand, we regret to observe that our police officials' acts and deeds have gone from bad to worse while dealing with freedom and liberty of citizens.
11. As a result of the above discussion, we are of the considered view that there is sufficient material on record to hold that the detention of detenu Aqeel from 23-7-1998 to 28-7-1998 was illegal and unauthorised. We, therefore, award cost and monetary compensation for such unauthorised detention and for their unauthorised acts at the rate of Rs,3,000 per day amounting to Rs,18,000 which shall be jointly paid by all the respondents and be deposited by them within a period of one month with the Additional Registrar of this Court. After deposit of the amount as aforesaid, it shall be paid to the detenu on the identification of Mr. Kalamuddin.