Respondent No,3, Mr. Abdur Rashid Khan, S.H.O., Police Station, Bhana Mari, Peshawar and Respondent NO.4 Mr. Begham Shah, Sub-Inspector, C.I.A., Peshawar are present in person. They have produced one of the detenus namely Sher Muhammad, as ordered by this Court Vide: its order dated 27-8-1998.
2. Both the Police Officers have admitted that no case stands registered against the detenu in any Police Station. Accordingly, the detenu is released forthwith.
3. The Police officials have informed that the other detenu, Khitab Gul, has since been released by respondent No,3, and therefore, he could not be produced today.
4. A perusal of the record would show that respondent No,3 has tried to deceive this Court by covering up the illegal detention of the two detenus. It is clear from the fact that after having received the orders of this Court, conveyed by the Additional Registrar (Judicial) telephonically, that he was required to produce both the detenus in the Court, he let of one of the detenus and produced the other one before the Civil Judge/Judicial Magistrate, Peshawar (Mr. Baber Ali Khan) and managed to get police custody Vide: order dated 27-8-1998.
5. A perusal of the said order would reveal that the order was passed by the Judicial Magistrate mechanically. The same is not only arbitrary but is also perverse and was recorded without the application of mind.
6. I would have recommended to withdraw the powers entrusted to the Judicial Magistrate under section 30, Cr.P.C. But keeping in view that he has undertaken to remain careful in future, while granting police custody, I have refrained myself from taking further proceedings.
7. Mr. Baber Ali Khan, Civil Judge/Judicial Magistrate is accordingly warned not to become a party to any proceedings through which the police tries to deceive the appex Court of the Province. The Registrar shall send a copy of this order to him through the Session Judge Peshawar for information/record.
8. Respondents Nos.3 and 4 have been found to have kept the detenus in illegal confinement without first procuring their Police custody. I intended to get a case registered against them under section 342, P.P.C. but both of them have assured this Court that they would not resort to such illegal tactics again and shall remain careful in future, therefore, I have decided not to proceed further in the matter. The Registrar is directed to send a copy of this judgment to both of them, through Senior Superintendent of Police, Peshawar, for information/record.
9. The petition has achieved its object and is accordingly disposed of as such.