AdvocaciaPLJ 2024 Cr.C. 976
قابلِ احترام ہاٸیکورٹ کی جانب سے ایک اور تاریخی فیصلہ Landmark Judgement ۔
ایک ایسا فیصلہ جسمیں گرفتار ملزم کے آٸینی، قانونی اور انسانی حقوق کی وضاحت کی گٸی ہے۔اس مقدمہ میں یہ اہم اصول بھی وضع کیا گیا ہے کہ ایک مقدمہ میں گرفتار ملزم اپنے خلاف درج دیگر تمام مقدمات میں بھی گرفتار تصور ہوگا۔اس مقدمہ میں ایریا مجسٹریٹس کے اس بابت تمام تر اختیارات و فرائض اور حدود و قیود کی وضاحت کی گئ ہے۔
(( Curux Of The Case / Brief Summary ))
In order to curb practice of arresting an accused in different criminal cases, one after the other, after his release on bail, following directions are issued to all the concerned:-
“(i) If an accused is arrested in a criminal case, he shall be presumed to have been arrested in all criminal cases registered against him wherein his arrest was required.
(ii) If arrest of the accused was required in any case already registered against him but could not be made for any reason, Investigating Officer is bound to make a written request to the Area Magistrate or the Court, as the case may be, explaining the reasons for such omission and seeking permission for the arrest of the accused
(iii) The request of the Investigating Officer must be endorsed by an opinion of the concerned Prosecutor qua sufficiency of the material for the arrest of an accused.
(iv) Area Magistrate or the Court, as the case may be, shall not accord approval of such arrest in a mechanical manner, rather record reasons in writing for granting such permission.
(v) If according to the opinion of the Area Magistrate or the Court, as the case may, sufficient incriminating material is not available against an accused, it may defer such arrest till the time of availability of such evidence.
(vi) At the time of dealing with such request of arrest, Area Magistrate or the Court, as the case may be, must keep in mind the binding dictum of the Apex Court laid down in Sughran Bibi Case15 and the right of fair trial and due process enshrined in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
(vii) Any deviation from the above directions would entail penal consequences, provided under the law.”
PLJ 2024 Cr.C. 976
[Lahore High Court, Lahore]
Present: Asjad Javaid Ghural, J.
SHAHIDA BIBI–Petitioner
versus
INSPECTOR GENERAL OF POLICE, PUNJAB etc.–Respondents
Crl. Misc. No. 27670-H of 2024, decided on 13.5.2024.
Criminal Procedure Code, 1898 (V of 1898)–
—-S. 491–Constitution of Pakistan, 1973, Arts. 9, 10, 10-A, & 199–Police Rules, 1934–Habeas petition–Illegal detention–Release on bail–Registration of criminal case–Abuse of power–Arrest in more than one criminal case at one time–Petitioner filed a petition complaining illegal confinement of her husband, (the detenue) by SHO, P.S. Manga Mandi,–High Court issued a direction for production of detenue in Court–In order to frustrate proceedings of High Court, presented alleged detenue before learned Area Magistrate and made a request for sending him to judicial lock up for purpose of test identification parade which was accordingly granted–High Court while taking serious notice of malafide of Investigating Officer summoned SSP (Inv), who undertook to hold inquiry against delinquent police official–The detenue was discharged in one case, whereas, he was granted post arrest bail in other case–Soon after release of detenue from jail on same day, Respondent No.4 ASI again forcibly abducted detenue and confined him at Police Station, Raja Jang, District Kasur–Being aggrieved, petitioner rushed to this Court by filing instant petition, seeking recovery and production of detenue in Court–In compliance of said notice SHO submitted a report, according to which detenue being required in case of offence under Section 392 PPC–When an accused is arrested in a case, there is no legal impediment for interrogating him with regard to all cases registered against him since then–The police since long is following illegal practice of showing arrestof person in one case and on expiry of remand or after release on post arrest bail it again arrests him in another case–An accused arrested in one case shall be deemed to have been arrested in all cases registered against him since then and practice of his arrest after release in one case amounts to denial of his fundamental rights–In future if this practice is not discontinued, delinquent police official shall be taken to task for denying basic right of liberty to a citizen–How police of one police station may have knowledge/information about registration of case against an accused in some other police station or in some other district–The police cannot even take shelter of ignorance of arrest of detenue in an already registered case–The detenue was in judicial lock up but he intentionally avoided to arrest detenue in said case–Investigating Officer of said case, would have arrested detenue on very date, when case property was taken into possession by him–The police officials in order to justify illegal detention of detenue, involved him in case, on basis of his so-called confession before police, which is not admissible piece of evidence–The evidence so far collected against detenue is insufficient to curtail his liberty, therefore, instead of requiring him to approach Court of first instance for his release on bail–High Court while exercising its jurisdiction under Section 561-A Cr.P.C., is granting him post arrest bail–He shall be released from jail forthwith, if not required in any other case–DPO is directed to get FIR registered against above-mentioned delinquent police officials through any of his subordinates not below than rank of DSP.
[P. 982, 983, 984, 985 & 987] A, B, C, D,
F, N, O, P, Q, R, CC, DD, EE, FFPLJ 2024 Lahore 43 ref.
Criminal Procedure Code, 1898 (V of 1898)–
—-S. 167–Habeas petition–Illegal detention–An accused required in more than one criminal cases when arrested will be deemed to have been arrested in all cases registered against him. [P. 983] E
Criminal Procedure Code, 1898 (V of 1898)–
—-S. 167–Remand–Custody in more than one criminal cases–It is nowhere stated in Criminal Procedure Code and Police Rules that a person required in more than one case when arrested will be deemed to have been arrested in one case and he cannot be arrested simultaneously in more than one case. [P. 983] G
Criminal Procedure Code, 1898 (V of 1898)–
—-S. 167–Remand–Section 167, Cr.P.C. says that when a person is arrested or detained in custody, Magistrate may authorise his detention in such custody for a term not exceeding fifteen days in whole. [P. 983] J
Criminal Procedure Code, 1898 (V of 1898)–
—-S. 167–Remand–The longest period for which an accused can be ordered to be detained continuously in police custody by one or more such orders, is only fifteen days. [P. 983] I
Criminal Procedure Code, 1898 (V of 1898)–
—-S. 167–Remand–The detention of accused person required in more than one cases already registered against him, for more than fifteen days would be illegal. [P. 983] J
1992 PCr.LJ 131 ref.
Criminal Procedure Code, 1898 (V of 1898)–
—-S. 167–Remand–Custody in more than one criminal cases–Successive arrests of an accused in different cases one after another amounts to denial of his fundamental right and this Court being jealous guardian of rights of a citizen cannot sit as a silent spectator and will step forward to curb such malpractice. [P. 984] K
Constitution of Pakistan, 1973–
—-Art. 199–Criminal Procedure Code, (V of 1898), S. 561-A–Where action and proceedings are not bona fide and with ulterior motive to obtain information about an absconding accused and arrest after arrest is made involving same person in different blind reports lodged much earlier and no explanation is provided for such series of actions in seriatim one after other, High Court is empowered to afford protection to citizen against involving frivolous and mala fide actions by imposing conditions on erring authorities and agencies.
[P. 984] L1994 SCMR 1283 ref.
Constitution of Pakistan, 1973–
—-Art. 199–Criminal Procedure Code, (V of 1898), S. 561-A–The Courts have to safeguard fundamental rights of every citizen and to protect life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person–Where liberty of a citizen was involved action initiated by police when found to be mala fide court should not hesitate to step in and grant relief to citizen. [P. 984] M
2009 SCMR 141 ref.
Constitution of Pakistan, 1973–
—-Arts. 9, 10 & 199–Constitutional Courts are meant to protect fundamental rights of an aggrieved person(s) including liberty and liberty and redress their grievances–If an aggrieved person knocked door of this Court against malafide or colourful exercise of authority by Executive or illegal confinement of his/her dear one, it is bounden duty of Court to protect his/her right subject to law.
[P. 985] SCriminal Law and Jurisprudence–
—-One of cardinal principle of criminal law and jurisprudence is that an accused person is presumed to be innocent until proven guilty by Court of law. [P. 986] U
Arrest of Accused–
—-S. 156–Arrest of accused–Investigating Officer seems more eager to cause arrest of such accused, without determining veracity of allegations–Mere lodging of an information does not make a person an accused nor does a person against whom an investigation is being conducted by police can strictly be called an accused.
[P. 986] VPLD 1975 SC 506 ref.
Compensation, Illegal Detention–
—-If a person is unjustly deprived of his liberty, compensation will be required to be paid to him or her by delinquent police officer.
[P. 986] W2015 SCMR 1724 ref.
Arrest of Accused–
—-S. 156–The Police Rules, 1934–Arrest of accused–Ordinarily no person is to be arrested only because he has been nominated as an accused person in an FIR or in any other version of incident brought to notice of investigating officer by any person until investigating officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by relevant provisions of Code of Criminal Procedure, 1898 and Police Rules, 1934. [Pp. 986 & 987] X
PLD 2018 SC 595 ref.
Arrest of Accused–
—-S. 156–The Police Rules, 1934–Arrest of accused–A suspect is not to be arrested straightaway or as a matter of course and, unless situation on ground so warrants, arrest is to be deferred till such time that sufficient material or evidence becomes available on record of investigation. [P. 987] Y
Constitution of Pakistan, 1973–
—-Art. 189–Judgment of supreme court–The judgment of Apex Court is binding on every organ of State as per Article 189 of Constitution and any deviation from said judgment alone is sufficient to infer malafide and ulterior motive on part of a person doing so.
[P. 987] Z
Constitution of Pakistan, 1973–
—-Arts. 9, 10 & 199–Life and liberty of a person is a cherished right guaranteed under Constitution and same cannot be allowed to be circumvented at whims of executive. Arrest of any person is a grave matter. Capricious exercise of power to arrest has deleterious consequences, thus highlighting need to exercise it with care, caution and sensitivity. [P. 987] AA
Arrest of a Person–
—-Arrest of a person has to be justified not only by referring to prima facie evidence and adequate actionable material sufficiently connecting person with offence/crime complained of, but also by showing that in given circumstances, there were no other less intrusive or restrictive means available–The power of arrest should not be deployed as a tool of oppression and harassment. [P. 987] BB
PLD 2020 SC 456 ref.
Bail in Habeas Petition–
—-This Court while exercising its jurisdiction under Section 561-A Cr.P.C., is granting him post arrest bail. [P. 987] EE
Illegal Arrest–
—-In order to curb practice of arresting an accused in different criminal cases, one after other, after his release on bail, following directions are issued to all concerned:-
“(i) If an accused is arrested in a criminal case, he shall be presumed to have been arrested in all criminal cases registered against him wherein his arrest was required.
(ii) If arrest of accused was required in any case already registered against him but could not be made for any reason, Investigating Officer is bound to make a written request to Area Magistrate or Court, as case may be, explaining reasons for such omission and seeking permission for arrest of accused.
(iii) The request of Investigating Officer must be endorsed by an opinion of concerned Prosecutor qua sufficiency of material for arrest of an accused.
(iv) Area Magistrate or Court, as case may be, shall not accord approval of such arrest in a mechanical manner, rather record reasons in writing for granting such permission.
(v) If according to opinion of Area Magistrate or Court, as case may, sufficient incriminating material is not available against an accused, it may defer such arrest till time of availability of such evidence.
(vi) At time of dealing with such request of arrest, Area Magistrate or Court, as case may be, must keep in mind binding dictum of Apex Court laid down in Sughran Bibi Case15and right of fair trial and due process enshrined in Article 10-A of Constitution of Islamic Republic of Pakistan, 1973.
(vii) Any deviation from above directions would entail penal consequences, provided under law.” [P. 988] GG
PLD 2018 SC 595 ref.
M/s. Qasim Ali and Muhammad Ashfaq Gujjar, Advocates for Petitioner.
Rana Umair Abrar Khan, A.A.G. for Respondents.
Date of hearing: 13.5.2024.
Order
The legitimacy of the police force in any nation is fundamentally anchored in its perceived impartiality, fairness, and adherence to the principles of justice. Unfortunately, over the past few years, a day seldom goes by without another case of police brutality or abuse of power by police officers being noticed by this Court. The frequency of these occurrences begs the question as to whether this is simply our new norm or whether a public can ever truly feel safe and protected by the law enforcement. The term “abuse of power” encompasses all the ways police officers can abuse their positions by taking advantage of the very people they have pledged to serve and protect. While most Police Officers take that pledge seriously, there are some who abuse the power given them to fulfill selfish personal desire or personal vendetta. The “abuse of power” by a Police Officer, inter-alia, includes the use of excessive force, placing a citizen under false arrest, warrantless searches or arrests, successive arrest of an accused in one after the other case and assault upon a citizen. This case is a classic example of abuse of power by the police officers. Initially, the petitioner Mst. Shahida Bibi, filed a petition[1] complaining illegal confinement of her husband, Muhammad Lateef (the detenue) by the SHO, P.S. Manga Mandi, District Lahore. This Court issued a direction[2] for production of the detenue in the Court, which was duly conveyed to the concerned quarters but despite this fact Investigating Officer of case[3] in order to frustrate the proceedings of this Court, presented the alleged detenue before the learned Area Magistrate and made a request for sending him to judicial lock up for the purpose of test identification parade which was accordingly granted by the said Magistrate. This Court while taking serious notice of the mala fide of the Investigating Officer summoned the SSP (Inv) and SP (Inv) Sadar Division, Lahore, who undertook to hold inquiry against the delinquent police official. Since, the custody of the detenue was regulated under the law, as such said petition was disposed of with direction to the petitioner to agitate her grievance before the competent forum.[4]
“In the light of above discussion, it can be said that in this digital age when sharing information is so simple and cheap, its dissemination has become so rapid and effective either through social media account or online information available at respective Police Information System Software, the record of criminal cases of an accused can be obtained easily. Even otherwise, a Crime Investigation Agency (CIA) is in existence, whose primary duty is collection of information relating to investigation of every case registered in the district that does include information of arrest as per Rule 21.35 of Police Rules, 1934 and it also talks ab out arrest of accused in all cases and not in one. On receiving an information of arrest of an accused CIA is duty bound to inform the Incharge Police Station about any other cases registered against him in the district; therefore, Station House Officer can also develop contact with CIA of other districts or provinces so as to collect information about number of cases registered against him throughout the country.”person until the Investigating Officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules a suspect is not to be arrested straightaway or as a matter of course and, unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the investigating officer regarding correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue.” This judgment of the Apex Court is binding on every organ of the State as per Article 189 of the Constitution and any deviation from the said judgment alone is sufficient to infer the mala fide and ulterior motive on the part of a person doing so. Life and liberty of a person is a cherished right guaranteed under the Constitution and the same cannot be allowed to be circumvented at the whims of the executive. Arrest of any person is a grave matter. Capricious exercise of the power to arrest has deleterious consequences, thus highlighting the need to exercise it with care, caution and sensitivity. Arrest of a person has to be justified not only by referring to prima facie evidence and adequate actionable material sufficiently connecting the person with the offence/crime complained of, but also by showing that in the given circumstances, there were no other less intrusive or restrictive means available. The power of arrest should not be deployed as a tool of oppression and harassment.[14]
“(i) If an accused is arrested in a criminal case, he shall be presumed to have been arrested in all criminal cases registered against him wherein his arrest was required.
(ii) If arrest of the accused was required in any case already registered against him but could not be made for any reason, Investigating Officer is bound to make a written request to the Area Magistrate or the Court, as the case may be, explaining the reasons for such omission and seeking permission for the arrest of the accused.
(iii) The request of the Investigating Officer must be endorsed by an opinion of the concerned Prosecutor qua sufficiency of the material for the arrest of an accused.
(iv) Area Magistrate or the Court, as the case may be, shall not accord approval of such arrest in a mechanical manner, rather record reasons in writing for granting such permission.
(v) If according to the opinion of the Area Magistrate or the Court, as the case may, sufficient incriminating material is not available against an accused, it may defer such arrest till the time of availability of such evidence.
(vi) At the time of dealing with such request of arrest, Area Magistrate or the Court, as the case may be, must keep in mind the binding dictum of the Apex Court laid down in Sughran Bibi Case[15] and the right of fair trial and due process enshrined in Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
(vii) Any deviation from the above directions would entail penal consequences, provided under the law.”
Copy of this order shall be circulated amongst all concerned through the office of Registrar.
Disposed of.
(K.Q.B.) Application disposed
[1]. Crl. Misc.No. 22642-H/2024.
[2]. Vide order dated 08.04.2024.
[3]. FIR No. 1639 dated 02.07.2023, offence u/S. 392, PPC, P.S. Manga Mandi, Lahore.
[4]. Vide order dated 09.04.2024.
[5]. Vide order dated 06.05.2024.
[6]. Mst. Razia Pervaiz and another ..Vs.. The Senior Superintendent of Police Multan and 5 others (1992 P Cr.LJ 131).
[7]. 1994 SCMR 1283.
[8]. 2009 SCMR 141.
[9]. Pervaiz Elahi .Vs. Care Taker Government of Punajb etc. (PLJ 2024 Lahore 43).
[10]. Vide order dated 08.04.2024.
[11]. Brig.(Retd.) F.B. Ali and another ..Vs.. The State (PLD 1975 SC 506).
[12]. Haider Ali and another ..Vs.. DPO Chakwal and others (2015 SCMR 1724).
[13]. PLD 2018 Supreme Court 595.
[14]. PLD 2020 SC 456.
[15]. PLD 2018 SC 595.
Thanks to
Malik Muhammad Jahanzaib Maibal Advocate High Court
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