1. ' MUHAMMAD MUJEEBULLAH SIDDIQUI, J.---Before we consider the petition on merits, we would like to dispose of the office objection on the point of maintainability of the detention petition. The office objection is that after insertion of subsection (1-A) in section 491 by Criminal Procedure Code (Amendment) Ordinance VIII of 2002 and issuance of notification by the High Court empowering Sessions Judges vide Notification No,GAZ XII-Z-14, dated 7-9-2002, the petition is not maintainable in this Court. In order to appreciate the office objection, it would be appropriate to reproduce subsection (1-A) of section 491, Cr.P.C. And the notification issued by the High Court which read as follows:-- ' Section 491(1A).---The High Court may, by general or special order published in Official Gazette, direct that all or any of its powers specified in clauses (a) and (b) of subsection (1) shall, subject to such conditions, if any, as may be specified in the order be exercised also by-
(a) a Sessions Judge, or
(b) an Additional Sessions Judge, ' within the territorial limits of a Sessions Division. NOTIFICATION "The Honourable Chief Justice of this Court is pleased to order in pursuance of section 491 (1-A), Cr.P.C. That powers vested in High Court under clauses (a) and (b) of subsection (1) of section 491, Code of Criminal Procedure, 1898, may also be exercised by Sessions Judges in Sindh within territorial limit of Sessions Division in which they are posted from time to time and until further orders.
2. ' The Rules framed by the High Court under subsection (2) of section 491 of the Code of Criminal Procedure shall, mutates mutandis, apply to proceedings in cases under section 491 of the Code before the Sessions Judges."
3. 'A perusal of subsection (1-A) above shows that it empowers the High Court to direct by general or special order published in Official Gazette that all or any of its powers specified in clauses (a) and
(b) of subsection (1) of section 491 and subject to such conditions if any as may be specified in the order be exercisable also by a Sessions Judge and an Additional Sessions Judge, within the territorial limits of a Sessions Division.
4. ' It is evident from the language of subsection (1-A) of section 491, Cr.P.C. That a concurrent jurisdiction has been conferred on the Sessions Judges and Additional Sessions Judges subject to special order or general order issued by the High Court. The word 'also' used in subsection 1-A is indicative of the fact that the power under section 491 can be exercised by the Sessions Judges and Additional Sessions Judges as well, if empowered by the High Court, in addition to the exercise of power by the High Court, itself. The conferment of this concurrent jurisdiction on Sessions Judge/Additional Sessions Judge does not take away the jurisdiction vested in the High Court. The power conferred under subsection (1-A) read with notification issued by the High Court can be compared with the power of revision conferred on the Sessions Judge, under section 439-A,Cr.P.C.
5. Which provides that the Sessions Judge may exercise any of the powers conferred on High Court by section 439, Cr.P.C. In respect of proceedings before Magistrate. Under the Civil Procedure Code also the High Court and District Judge have concurrent jurisdiction to entertain the revision application under section 115, C.P.C.
6. ' For the foregoing reasons we are of the considered opinion that the sole effect of the insertion of subsection (1-A) in section 491, Cr.P.C. Is that the concurrent jurisdiction has been conferred on the Sessions Judge subject to the direction issued by the High Court and it has not the effect of taking away the jurisdiction of this Court. The power on Sessions Judge has been conferred in addition to the powers vested in High Court and not in derogation of the said powers. In all appropriate cases this Court shall continue to exercise the jurisdiction under section 491, Cr.P.C. Notwithstanding the provisions contained in subsection (1-A) section 491, Cr.P.C. We would further like to observe that looking to the nature of complaints which are pouring in and the magnitude of highhandedness on the part of various agencies, the High Court shall always consider whether the matter should be considered at the level of High Court instead of Sessions Judge. It has been complained in several cases that the efficacious and effective remedy is not provided in all the cases by the Sessions Judges. For the foregoing reasons, office objection is overruled.
7. ' Now we come to the merits of the case. The applicant Mehran Khan filed a detention petition under section 491, Cr.P.C. Alleging that his brother Gaji Khan has been illegally detained by Dhamrah Police and the Police is demanding illegal gratification of Rs,5,000 for the release of the detenue. It was further alleged that afterwards amount of illegal gratification has been increased to Rs,25,000.
8. ' In order to ascertain the truth or otherwise of the allegation, Raid Commissioner was appointed who conducted the raid on 22-5-2003 and submitted the report which reads as follows:-- "In compliance to the order of this Court dated 21-5-2003, it is to submit that on the very day at 1615 hours, I made a surprise visit at Police Station Dhamrah, where met with Head Muharar WHC Ayaz Ahmed Bhand and Duty Officer A.S.-I. Sartaj Ahmed Jaghirani and after disclosing them my identity, I seized the Roznamcha and gone through the same but found no entry regarding arrest of the detenue Gaji Khan Shahani. I went to the lock up room and found available detenue Gaji Khan Shahani alongwith another person namely Gul Hassan Mugheri, there. On enquiry, it was disclosed in the first instance that there is no F.I.R. Remand or any other document against the said detenue.
9. They further discussed that the detenue is brought by S.H.O. Asad Nabi Khichi today i,e, 21-5-2003, who is out of station. Then I again went to the lock-up room and enquired about any torture or maltreatment at the hands of police on which the detenue Gaji Khan complained the torture in the early days of his arrest which was as per him effected about 6/7 days back. In the meantime, the abovesaid WHC and Duty Officer came to the lock-up room and produced a mashirnamas of arrest of detenue Gaji Khan in Crime No,68 of 2002 of Police Station Mahotta. On query they disclosed that the entry has not been incorporated due to business in some other work. In respect of another detainee Gul Hassan Mugheri, no entry was found and no case, complaint, remand or mashirnamas was produced. The said Gul Hassan told that he has been shifting by police authorities from one place to another and since 14-4-2003 he is under illegal detention at Police Station Dhamrah. The Duty Officer reported that he was brought by D.S.P. Kamber and other police officers. Thereafter, I directed the Duty Officer to notify the above facts to the S.H.O. Asad Nabi Khichi and both attend this Honourable Court on 22-5-2003 at 8-15 a.m. Positively alongwith two detenues namely Gaji Khan Shahani and Gul Hassan Mugheri, original Roznamcha. Thereafter, I left the Police Station Dhamrah."
10. ' Asad Nabi Khichi Inspector/S.H.O. Dhamrah Police Station has submitted his statement/affidavit contending that detenue Gaji Khan was required in Crime No,68 of 2002 under section 324, P.P.C. Of Police Station Mahotta and was arrested in said crime on 21-5-2002. It is further stated that Gaji Khan is nominated in F.I.R. No,64 of 2002 under section 457/380, P.P.C. Of Dhamrah Police Station as well.
11. ' The applicant Mehran Khan has filed rejoinder contending that so far Crime No,64 of 2002 is concerned, the detenue was released by Dhamrah Police on 6-9-2002, under section 497, Cr.P.C.
12. And such report was sent to D.P.O. Larkana, whereafter, he was never arrested. The S.H.O. Police Station Dhamrah and the learned Assistant Advocate-General have conceded that detenue Gaji Khan was released in Crime No,64 of 2002 of Dhamrah Police Station and till today he has not been arrested in the said crime.
13. ' As regards Crime No,68 of 2002, we have perused the police file and we have found that an F.I.R.
14. Was lodged against the detenue by his uncle Aslam Khan but he was not arrested by Mahotta Police. According to the police file, two Investigating Officers took no efforts for arresting the detenue and the third Investigating Officer reported in the month,of October, 2002 that there was no likelihood of the arrest of the detenue, therefore, the case may be disposed of under section 512, Cr.P.C. However, the police paper does not show that any further proceedings were taken in the case and probably it was kept pending by Mahotta Police for the reasons best known to them. The mashirnama of arrest produced by Inspector Asad Nabi Khichi dated 21-5-2003 shows that although Crime No,68 of 2002 was registered at Mahotta Police Station but the detenue has been arrested by S.H.O. Dhamrah Police Station. No reason has been assigned for arrest of detenue by Dhamrah Police Station when he was required by Mahotta Police Station S.H.O. Dhamrah Police Station has said that the list of absconders is circulated to the other police stations but he has not produced any such list to show that detenue was arrested in pursuance of the request of Mahotta Police Station.
15. 'Mr. Khalid Hussain Shahani, learned counsel for the applicant Mehran has submitted that the mashirnama of arrest prepared by S.H.O. Dhamrah Police Station is a manipulated document in order to cover up his act of illegally detaining Gaji Khan.
16. ' Since the S.H.O. Dhamrah Police Station is not able to give any plausible explanation for arresting the detenue Gaji Khan in a crime which was registered at Mahotta Police' Station, therefore, we are persuaded to agree with the submission of Mr. Shahani that the mashirnama of arrest has been fabricated to use as ruse for giving the colour of legality to the illegal detention of detenue Gaji Khan.
17. ' In the above circumstances we are of the considered opinion that the detenue Gaji Khan was detained by S.H.O., Police Station Dhamrah illegally and, therefore, the detenue, who is present in Court is directed to be released forthwith.
18. ' Since it is a clear case of highhandedness, therefore, it would be in the fitness of things to direct the S.H.O. Dhamrah Police Station, Inspector Asad Nabi Khichi to pay the compensation of Rs,5,000 to the deterThe Gaji Khan from his own pocket. The S.H.O./Inspector Asad Nabi Khichi undertakes to deposit amount of Rs,5,000 with the Deputy Registrar of this Court by 3rd June, 2003.
19. ' As regards detenue Gul Hassan Mugheri, Mashirnama of arrest has been produced according to which he has been arrested in Crime No,48 of 2003 of Police Station Kamber for an offence under sections 365-A, 342, 149, 6/7 A.T.A. And 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Mr. Habibullah Ghori, Advocate for the detenue Gul Hassan has submitted that mashirnama has been manipulated and that Gul Hassan son of Ali Gohar Mugheri is not named in the F.I.R. We are of the opinion that we should not undertake a probe and deeper appreciation of the facts in respect of detenue in respect of whom no petition has been filed. The appropriate remedy for Gul Hassan Mugheri is to seek relief from the Court of competent jurisdiction in accordance with the law. Gul Hassan is present in custody. He is remanded in custody to the Police Station Kamber where investigation is pending in Crime No,48 of 2003. The petition stands disposed of accordingly.