' This is a petition filed under section 491 of the Code of Criminal Procedure to get released Muhammad Bashir from the illegal and improper custody of the S.H.O., Police Station Ladhay Wala Warraich, District Gujranwala. A bailiff was deputed.
2. Mirza Muzaffar Baig, bailiff of this Court reached Police Station Ladhay Wala Warraich on 10-9- 1998 at 5-45 p.m. He made the entry of his arrival in the daily diary of police station and enquired about Muhammad Bashir alleged detent. He found Muhammad Bashir alleged detent in the police station and the said Muhammad Bashir informed the bailiff that he was arrested on 26-8-1998 who was administered beatings by the police. Mr. Tassaduq Hussain, Inspector/S.H.O. Told the bailiff that Muhammad Bashir was arrested on 10-9-1998 at 7-45 p.m. On the basis of F.I.R. No,225, dated 27-8-1998 registered at his Thana under section 216, Pakistan Penal Code. The bailiff conveyed the direction of this Court to Muhammad Bashir on 14-9-1998 at 4-00 a.m. Before this Court.
3. However, on 11-9-1998 the S.H.O. Produced Muhammad Bashir before the Duty Magistrate for his judicial remand who sent him to the judicial lock-up and also passed the order of his admission to bail in the sum of Rs,30,000 with one surety in the like amount as section 216, Pakistan Penal Code is boilable.
4. The matter was taken up on 14-9-1998 on which date I proceeded to make analysis of the aforesaid F.I.R. Registered for the commission of an offence under section 216, Pakistan Penal Code.
I directed the Police Officer for the production of Muhammad Bashir alleged detenu.
5. Today Muhammad Bashir is present. The matter has been analysed and dissected in detail in the presence of the learned counsel for the petitioner, learned Assistant Advocate-General and Mr. Tassaduq Hussain, S.H.O. In this matter F.I.R. No,225 registered on 27-8-1998 under section 216, Pakistan Penal Code has to steal the eminence. .A. Perusal of the same has made out that Mahfooz Ahmad alias Khoja son of Muhammad Bashir alleged detent is the accused of Crime Case No,105 of 1998 registered under section 324/452/34, Pakistan Penal Code along with one Muzaffar alias Chhemu son of Nazir Ahmad, Caste Ansari. The Police Officer got the information that the aforesaid accused persons were present in the house of Nazir Ahmad, Caste Ansari i.e. Father of Muhammad Muzaffar alias Cheemu accused of the aforesaid case. He reached there and is said to have seen Muhammad Bashir, his son Mahfooz Ahmad alias Khoja as well as Nazir Ahmad and the accused Muhammad Muzaffar alias Cheemu. All the aforesaid persons are said to have fled away from the house and thereafter the aforesaid F.I.R. No,225 of 1998 was registered. A perusal of the police file maintained by the S.H.O. Has made out that Muhammad Bashir is a resident of District Sialkot. It is the admitted position that the offence under section 216, Pakistan Penal Code is alleged to have been committed within the territorial limits of Police Station Alipur Chatha, District Gujranwala. It means that Muhammad Bashir had no concern with the house I A wherein he along with others is said to have been seen by the Police Officer. The house was owned by the aforesaid Nazir Ahmad, Caste Ansari. This is rather the admitted fact.
6. At this stage I would like to reproduce as under section 216, Pakistan Penal Code for the sake of convenience and proper appreciation as well as disposal of the controversy:-- "216. Harbouring offender who has escaped from custody or whose apprehension has been ordered.--- Whenever any person convicted of or charge with an offence being in lawful custody for that offence, escapes from such custody; or whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours or conceals that person with the intention of preventing him from being apprehended shall be punished in the manner following, that is to say: ' If a capital offence; if the offence for which person was in custody or is ordered to be apprehended is punishable with death he shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; If punishable with imprisonment for life, for with imprisonment.--- If the offence is punishable with imprisonment for life or imprisonment for ten years, he shall be punished with imprisonment of either description for a term which may extend to three years, with or without fine; and if the offence is punishable with imprisonment which may extend to one year, he shall be punished with imprisonment of the description provided for the offence for a term which may extend to one- fourth part of the longest term of the imprisonment provided for such offence or with fine, or with both.
'Offence' in this section includes also any act or omission of which a person is alleged to have been guilty out of Pakistan which, if he had been guilty of it in Pakistan would have been punishable as an offence, and for which he is under any law relating to extradition or otherwise, liable to be apprehended or detained in custody in Pakistan, and every such act or omission shall, for the purposes of this section, be deemed to be punishable as if the accused person had been guilty of it in Pakistan.
Exemption.--- This provision does not extend to the case in which the harbor or concealment is by the husband or wife of the person to be apprehended."
7. A perusal of F.I.R. No,225 of 1998 registered at Police Station Lad hay Wala Warraich upon which the Police Officer is banking has made out that the house was owned and possessed by Nazir Ahmad and not by Muhammad Bashir alleged detent. I would like to make an analysis of the word "conceal" and the word "harbor". The dictionary meanings of the word "conceal" are, keep secret, to hide completely or carefully, act or state of hiding. The dictionary meaning of the word "harbor" are place of safety, a refuge or shelter, asylum. The admitted facts are that Muhammad Bashir alleged detent is not the accused of any criminal case. The house is owned and possessed by Muhammad Nazir. The house is neither owned nor possessed by Muhammad Bashir alleged detent. In view of the aforesaid aspect there was no occasion on the part of Muhammad Bashir to hide himself or to go to the house of Muhammad Nazir as a place of safety and there was no question of giving asylum to Muhammad Bashir alleged detent by Muhammad Nazir owner of the house. In the circumstances it can safely be expressed to which the learned A.A.-G. Has no contrary view, that to put the pressure upon Muhammad Bashir for the production of his accused son he was involved in the criminal case. His presence in the house of Nazir Ahmad where he must have arrived from his village situated in District Sialkot would not make him the accused under section 216, Pakistan Penal Code because he was neither the accused of the case registered earlier or any other case registered against him and that the house wherein he was present was not owned and possessed by him. He cannot be held to have harbored or concealed his son and other accused in the house of Nazir Ahmad whose own son Muhammad Muzaffar alias Cheema is also the accused.
8. It is the proper stage to refer to Khutba-tul-Hajjah-tul-Widah of our Holy Prophet Muhammad (peace be upon him) who very kindly expressed that "henceforth, the offender himself will be responsible for the offence; no son will be charged for the father's crime and no father will be punished for the crime committed by the son".
9. If Mahfooz Ahmad alias Khoja son of Muhammad Bashir alleged detent has committed any non- boilable offence, he (father) cannot be held liable in the matter. It is the common practice with the police that to procure the attendance of a fugitive of law his nears and dears, viz. Parents, brothers, sisters etc. Are pressurized and tortured in this illegal manner. However, an important aspect is ignored by the police that, disobedient sons, brothers of the type of Mahfooz Ahmad alias Khoja accused of the case are source of insult, degradation and inconvenience to the family where many problems creep up and ooze out due to their being out-laws. Even the sister of the fugitive of law are divorced by their respective spouse. The engagements of the sisters and brothers are unfolded.
If the family is educated the brothers and sisters studying in the educational institutions or pursuing respectable profession(s) have to face the sarcastic rebukes who feel difficulty to sit in social gathering and cannot find a respectable place in the society. This is the crux of the matter to make me hold that section 216, Pakistan Penal Code is not applicable against Muhammad Bashir alleged detent and he is not liable thereof.
10. Consequently, it is held that Muhammad Bashir is not the accused of Crime Case No,225 registered on 27-8-1998 under section 216, Pakistan Penal Code at Police Station Ladhay Wala Warraich, District Gujranwala. This aspect of the matter was not seen by the Duty Magistrate while granting the judicial remand who simply proceeded in the matter in a perfunctory manner. Even otherwise it was the legal right of Muhammad Bashir to have been admitted to bail under section 496, Code of Criminal Procedure at the end of the Police Officer. He kept him with him for 24 hours without legal justification and thereafter produced him before the Duty Magistrate who sent him to the judicial lock-up.
11. For what has been said above, I hold that Muhammad Bashir is not liable under section 216, Pakistan Penal Code on the basis of registration of aforesaid F.I.R. No,225, dated 27-8-1998 at Police Station Ladhay Wala Warraich, District Gujranwala. In this view of the matter he is declared as a decent and is set at liberty. He has already been admitted to bail by the Area Magistrate who may go to a place of his own choice.
12. The necessary consequence of my aforesaid order is that the bail bond of Muhammad Bashir released detent is cancelled and surety, discharged.
13. This habeas petition is disposed of after its acceptance in the aforesaid terms.