An occurrence took place on 25-8-1998 at 10-00 a.m. In Ladies Examination Centre, Oriental College within the area of Police Station New Anarkali, Lahore where the police was performing its duties about the maintenance of law and order situation. Raza Abbas, S.-I. Police Station New Anarkali, Lahore was present with Muhammad Ibrahim, H.C., Lady Head Constable Kalsoom Akhtar, Lady Constable Sameena Kausar and Lady Constable Shahida. Fifteen/sixteen young boys arrived there while armed with bricks and stones who were raising the slogans against the sitting Government and the Executive Authorities. Those boys are said to have entered the Examination Hall, snatched the answer books from the examinees and tore off the same. He (Raza Ali, S.-I.) with the help of his aforesaid subordinates stopped them upon which they are said to have forcibly abducted him and removed him to Khalid Bin Waleed Hostel where they confined him in a room.
The female Constables saved themselves by entering the aforesaid Examination Hall. On the arrival of the police they fled away. However, Hafiz Ghulam Mustafa accused was apprehended and arrested while Waqar-ul-Mohsin petitioner-acc\used alongwith his co-accused Alamgir, Zaigham, Javed Bhatti, Muhammad Azhar, Shani and Amjad Karimi as well as some unknown persons made good their escape. The statement of Raza Abbas, S.4. Complainant was recorded by Jaffar Ali, S.-I.
Who sent the same to the S.H.O. Police Station New Anarkali where F.I.R. No,88, dated 25-8-1998 was registered under sections 365, 353, 506, 148/149, Pakistan Penal Code and under section 16 of the West Pakistan Maintenance of Public Order Ordinance, 1960. Obviously Raza Abbas, S.-I. Was rescued.
2. The case has been investigated and the police is desirous to proceed against the accused persons for the commission of the offences under the aforesaid penal sections of the aforesaid penal laws. Feeling aggrieved Waqar-ul-Mohsin petitioner accused filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 praying for the issuance of writ to declare that the incorporation of section 365, Pakistan Penal Code and section 16 of the Maintenance of Public Order Ordinance, 1960 in the aforesaid F.I.R. No,98, dated 25-8-1998 registered at Police Station New Anarkali, Lahore at the instance of Raza Abbas, S.-I. Is illegal, mala fide and without lawful authority and of no legal effect with the prayer that the same may be ordered to be deleted. According to the writ petitioner the incorporation of section 365, Pakistan Penal Code and section 16 of the Maintenance of Public Order Ordinance, 1960 is mala fide and without any legal justification as the complainant is a Sub-Inspector of the Police Department. He maintained that at best section 342, Pakistan Penal Code would be attracted instead of section 365, Pakistan Penal Code and that there is no question of attraction of section 16 of the Maintenance of Public Order. Ordinance, 1960. In the comments and report the S.H.O. Police Station New Anarkali, Lahore took up the stand that in the circumstances of the matter the aforesaid section 365, Pakistan Penal Code and section 16 of the Maintenance of Public Order Ordinance, 1960 are prima facie applicable.
3. I have heard the learned counsel for the petitioner as well as the learned Assistant Advocate- General and gone through the record before me. Learned counsel for the petitioner took me through section 365, Pakistan Penal Code and referred to the rulings printed as Akbar Ali and others v. King-Emperor AIR 1925 Lah. Page 614(1) as well as Ali Nawaz alias Alia and 5 others v. The State 1988 SCM R 601 and argued that the removal of Raza Abbas, S.-I. From the Examination Hall to a short distance in Khalid Bin Waleed Hostel in the same premises would not constitute the abduction of the complainant with intent to cause him to be secretly and wrongfully confined as every body was expected to be aware of his whereabouts. He added that it is not an alleged case of dissemination of rumours etc. Etc. So as to attract the provisions of section 16 of the Maintenance of Public Order Ordinance, 1960 as there was no question of causing fear or alarm to the public and there could not be said to be any activity prejudicial to the public safety or the maintenance of public order. On the contrary learned Assistant Advocate-General laid"the emphasis that Raza Abbas, S.-I. Was secretly removed to a room where he was confined and, thus, the petitioner was prima facie liable under section 365, Pakistan Penal Code. He added that the students raised the slogans against the sitting Government and the Executive Authorities who are also liable under section 16 of the Maintenance of Public Order Ordinance, 1960.
4. For the proper appreciation of the dispute before me sections 340 (with Illustrations), Pakistan Penal Code, section 342, Pakistan Penal Code and section 365, Pakistan Penal Code are reproduced as under:-- "Section 340. Wrongful confinement.--- Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said 'wrongfully to confine' that person. Illustrations
(a) A causes Z to go within a walled space, and locks Z in. Z is, thus, prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z.
(b) A places men with fire-anus at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building A wrongful confines Z.
Section 342. Punishment for wrongful confinement.-- Whoever wrongfully confines any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 365. Kidnapping or abducting with intent secretly and wrongfully to confine person.--- Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine."
5. Section 16 of the Maintenance of Public Order Ordinance, 1960 is also reproduced as follows:-- Section 16. Dissemination of rumours, etc.--- Whoever--
(a) makes any speech, or
(b) by words whether spoken or written or by signs or by visible or audible representations or otherwise publishes any statement, rumour or report, shall be punished with imprisonment which may extend to three years, or with fine or with both if such speech, statement, rumour, or report--
(i) causes or is likely to cause fear or alarm to the public or to any section of the public;
(ii) further or is likely to further any activity prejudicial to public safety or the maintenance of public order."
6. I would express that the reasoning adopted by the learned counsel for the petitioner has to prevail. It is the admitted position that the Examination Hall and Khalid Bin Waleed Hostel are in the same premises and the distance between both the places is short one. According to the case-law 1988 SCM R 601 act of the accused party allegedly tying the hands of the two prosecution witnesses at their back and leading them to the Dera of the accused where they were subjected to heating would not constitute the offence of section 365, Pakistan Penal Code as the distance between the place from where the P.Ws. Were removed and the Dera of the accused was one Acre. Same is the position in the instant matter. For the purpose of the proper appreciation of the dispute in hand I would reproduce as under whole of the judgment printed as Akbar Ali and others v. Emperor AIR 1925 Lah. 614(1d):-- "Judgment.--- Siftan is a sister of Akbar Ali and Abdul Rahman, petitioners and a cousin of Nur, petitioner. It has been found by the learned Sessions Judge that Mst. Siftan was divorced by her former husband, Ghulam Kadir. She was living in the house of her aunte and it appears that she proposed to marry one Bakhsh. This marriage was not acceptable to the petitioners. They, therefore, went to the house in which Mst. Siftan was living and carried off Mst. Siftan against her will and kept her in confinement. On these findings the petitioners have been convicted under section 365, Indian Penal Code. That section makes punishable the offence of abduction with intent to cause the person abducted to be secretly and wrongfully confined. There is no doubt that on the findings of the learned Sessions Judge Mst. Siftan was wrongfully confined, but it is contended by the learned counsel for the petitioners that under the circumstances it could not be held that Mst.
Siftan was secretly confined. In this contention of the learned counsel I agree. There is nothing to show that the whereabouts of Mst. Siftan were concealed by her brothers or from the person interested in Mst. Siftan. The offence of the petitioners, therefore, amounts to one of wrongful confinement. Accepting the petition I alter the conviction to one under section 342 and reduce the sentence of imprisonment to that already undergone.
The sentence of fine will be set aside."
7. In the instant matter the whereabouts of Raza Abbas, S.-I. Complainant were not concealed. To constitute the offence the abduction/removal should have been with intent to cause the complainant to be secretly confined which is asking in this case. It may be a prima facie case of the attraction of the offence under the wrongful confinement but not secret confinement. This is the crux of the matter to make me hold that prima facie section 365, Pakistan Penal Code, is not applicable and prima facie section 342, Pakistan Penal Code is attracted. This controversy to this extent is resolved in the aforesaid terms.
8. About the attraction of section 16 of the Maintenance of Public Order Ordinance, 1960 suffice it to express that there was no speech which could cause fear or alarm to the public and there was no activity prejudicial to public safety or the maintenance of public order. Such type of non-bailable offences are added in such matters to aggravate the situation so that the accused persons are involved in non-bailable offences to justify their arrest and I would express that it is not a case of attraction of the aforesaid section 16 of the said Ordinance.
9. At this stage I am tempted to express that Raza Abbas, S.-I. Is a member of the police force and the matter has been aggravated to put the pressure upon the petitioner-accused as well as his co-accused and such type of instances are quite in rife in our legal field which require to be checked. It is necessary to refer to Article 4(1) of the Constitution of the Islamic Republic of Pakistan, 1973 which provides that "to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan". It has been provided under Article 25(1) of the Constitution, 1973 that "all citizens are equal before law and are entitled to equal protection of law". The aforesaid Article 4/25 of the Constitution, 1973 are applicable. The present situation has arisen because Raza Abbas, S.-I.
Is a member of police force. However, he is not entitled to be afforded preferential treatment and the petitioner-accused and his co-accused are entitled to equitable treatment provided by law.
10. For what has been said above I hold that the police has exceeded its authority and acted illegally by incorporating section 365, Pakistan Penal Code and section 16 of the Maintenance of Public Order Ordinance, 1960. I, therefore, accept this writ petition with costs and delete section 365, Pakistan Penal Code and section 16 of the Maintenance of Public Order Ordinance, 1960 from the F.I.R. The aforesaid section shall be deleted from the report of the police submitted under section 173 of the Code of Criminal Procedure. Section 365, Pakistan Penal Code shall be substituted by section 342, Pakistan Penal Code.
11. Keeping in view the nature of accusation I hold and direct that the trial against the accused persons shall be held in the Court of the competent learned Area Magistrate.