ABDUL RAUF vs S.H.O. and 3 others
This habeas corpus petition was filed seeking the release of a detenu, Shoukat Ali, who was allegedly confined illegally by the police despite having been granted bail by the Additional Sessions Judge, Chiniot. The core legal question was whether the detention of an accused person was lawful when their bail had not been cancelled by any court, despite the cancellation of bail for a co-accused in the same case. The Court observed that while the bail of the co-accused had been cancelled, the bail granted to the detenu remained valid and subsisting. The police had arrested the detenu due to a claimed misunderstanding. The Court held that the detention was improper and illegal because the bail order in favor of the detenu had not been set aside. Consequently, the Court ordered the immediate release of the detenu, provided he was not required in any other case, while noting that disputed questions of fact regarding the conduct of the police officer could be pursued through alternate legal remedies.
- Is the detention of an accused person lawful if their bail order has not been cancelled by a court of competent jurisdiction?
- Can a police officer arrest an accused person whose bail has not been cancelled based on a misunderstanding of a court order regarding a co-accused?
- Should a habeas corpus petition be used to resolve disputed questions of fact regarding police conduct?
- Section 497(5), Code of Criminal Procedure 1898
- Section 376, Pakistan Penal Code 1860
ORDER
' MALIK SHAHZAD AHMAD KHAN, J.--This petition has been filed with the prayer that detenu namely Shoukat Ali son of Muhammad Bakhsh has illegally been confined by Abid Ali, respondent No,3 and respondents Nos. 1 to 3 be directed to produce the detenu before this Court so that he may be set at liberty:
2. As per brief facts of the present case the above mentioned detenu is an accused in case F.I.R.
No,106 of 2011 dated 2-4-2011 Police Station Langrana, District Chiniot. The said detenu and his co- accused Abdul Ghafoor were granted bail vide order dated 15-6-2011 by the learned Additional Sessions Judge, Chiniot. The complainant of the above mentioned case filed a petition under section 497(5) of Cr.P.C. For cancellation of bail of the above mentioned co-accused Abdul Ghafoor in this court, which was allowed vide order dated 19-9-2011. According to the petitioner the bail of the above mentioned co-accused Abdul Ghafoor was cancelled by this Court whereas respondent No,3 has also arrested the above mentioned detenu namely Shoukat Ali, though his bail was not cancelled by this Court. The petitioner has filed this habeas petition on the ground that the detenu has illegally been detained in the above mentioned case whereas he has already been granted bail by the learned Additional Sessions Judge, Chiniot.
3. It is contended by the learned counsel for the petitioner that the above mentioned detenu is an accused in the above mentioned case and he was granted bail by the learned Additional Sessions Judge, Chiniot on 15-6-2011 and the said bail granting order still holds the fields; that as the bail of detenu Shoukat Ali has not been cancelled by any court, therefore, his detention is improper and illegal; that the detenu may be directed to be set at liberty.
4. On the other hand, the learned D.P.-G. After going through the relevant record and on instructions has informed that bail of above mentioned co-accused Abdul Ghafoor was cancelled whereas the bail of Shoukat Ali (detenu) was not cancelled by this Court vide order dated 19-9- 2011. He has further contended that the above mentioned detenu was arrested due to misunderstanding by Abid Hussain, A.S.-I., (respondent No,3) vide Zimni No,24 dated 20-9-2011.
5. Arguments heard. Record perused.
6. The above mentioned detenu Shoukat Ali is an accused in case F.I.R. No,106 of 2011 dated 2-4-2011 offence under section 376 of P.P.C. Registered at Police Station Langrana District Chiniot.
' The said detenu and co-accused were granted bail after arrest by the learned Additional Sessions Judge, Chiniot vide order dated 15-6-2011. The complainant of the above mentioned F.I.R. Filed a petition for cancellation of bail to the extent of above mentioned co-accused Abdul Ghafoor vide Criminal Miscellaneous No,8095-CB of 2011. The said bail cancellation was accepted by this Court vide order dated 19-9-2011. The complainant did not move any petition for cancellation of bail of the above mentioned detenu Shoukat Ali. Anyhow he was also arrested by Abid Hussain A.S.-I. In the above mentioned case vide order dated 19-9-2011. The bail allowed to the above mentioned detenu by the learned Additional Sessions Judge, Chiniot vide the above mentioned order has not been cancelled so far, by any court, therefore, detention of the said detenu in the above mentioned case is improper. The learned counsel for the petitioner has argued that Abid Hussain, A.S.-I. May be proceeded against for illegal and improper detention of the above mentioned detenu. This argument of the learned counsel for the petitioner has been controverted by the learned D.P.-G. He states that there was no ill will on the part of Abid Hussain, A.S.-I. Respondent No,3 and the detenu was arrested due to misunderstanding. He has further argued that the detenu had himself invited the above mentioned misunderstanding because he was present in this court along with his co- accused at the time of decision of bail cancellation of his co-accused on 19-9-2011.
' The disputed questions of facts are involved to resolve the above mentioned issue, which exercise cannot be undertaken at this stage. The parties may seek alternate remedies provided under the law for decision of the above mentioned issue. This petition is, therefore, allowed and the detenu Shoukat Ali son of Muhammad Bukhsh caste "Kumhar" resident of Hanjra Chak No,241/J.B. Tehsil Bhawana District Chiniot is directed to be released from jail, forthwith in case F.I.R. No,106 of 2011 dated 2-4-2011 offence under section 376 of P.P.C. Registered at Police Station Langrana, District Chiniot, if he is not required in any other case. Copy "Dasti".