MUHAMMAD SADIQ and 2 otherss vs THE STATE and anothers
This matter concerns a petition for pre-arrest bail where one of the petitioners, already protected by an interim bail order, was arrested by police from another district without adherence to statutory procedures. The core legal question was whether the arrest and subsequent transfer of the petitioner, conducted without a warrant issued under Section 76 of the Code of Criminal Procedure 1898 or compliance with the removal procedure mandated by Section 86 of the Code of Criminal Procedure 1898, were lawful. The Court held that the police action was illegal, as it bypassed the mandatory requirement to produce the accused before the local Sessions Judge for transit or bail purposes. The Court granted post-arrest bail to the petitioner in the case for which he was illegally arrested and confirmed the pre-arrest bail for all petitioners in the primary case. The key principle laid down is that police must strictly adhere to the procedural requirements of Section 86 of the Code of Criminal Procedure 1898 when arresting and transferring an accused across districts, and failure to do so renders the arrest and subsequent remand illegal.
- Is an arrest and transfer of an accused across districts legal if the police fail to comply with the procedure prescribed in Section 86 of the Code of Criminal Procedure 1898?
- Does a Sessions Judge have the authority under Section 497 of the Code of Criminal Procedure 1898 to grant bail to an accused who was arrested in violation of the procedure set out in Section 86 of the Code of Criminal Procedure 1898?
- Can the High Court issue directions to regulate the future conduct of the investigating agency regarding the arrest of a petitioner when mala fides and police highhandedness are established?
- Section 380, Pakistan Penal Code 1860
- Section 489-F, Pakistan Penal Code 1860
- Section 76, Code of Criminal Procedure 1898
- Section 86, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
' IBAD UR REHMAN LODHI, J.---Petitioners Muhammad Sadiq, Muhammad Afzal and Muhammad Siddique seek pre-arrest bail in case F.I.R. No,276, dated 22-4-2012 offence under section 380, P.P.C.
Registered at Police Station Haveli Lakha, District Okara.
2. On 4-6-2012 petitioners viz: Muhammad Sadiq, Muhammad Afzal and Muhammad Siddique were allowed ad interim bail by this Court but on 11-6-2012 when the matter was fixed for hearing it was informed by the learned counsel for the petitioners that one of the petitioners Muhammad Sadiq has been taken illegally by Rahim Yar Khan Police at the behest of the complainant who is close relative of Provincial Police Officer and for that particular date the personal attendance of the said petitioner was exempted. The information was laid before this Court on 15-6-2012 that said Muhammad Sadiq has been arrested in case F.I.R. No,144, dated 7-5-2012 registered under section 489-F, P.P.C. At the Police Station City B-Division, Rahim Yar Khan and he was shifted to Rahim Yar Khan and there he was confined in District Jail. On receipt of such information it was directed that Muhammad Sadiq be produced before this Court and today he has been produced by Rahim Yar Khan Police.
3. From the record it reveals that on 9-6-2012 when he was already protected under interim bail vide order dated 4-6-2012, was taken into custody by Rahim Yar Khan Police at Depalpur, District Okara and thereafter shifted to Rahim Yar Khan. All which has been done by the Punjab Police either from Rahim Yar Khan or from Okara, was in clear violation of the provisions of section 86, Cr.P.C. Which provides that if a person arrested on the strength of a. Warrant issued under section 76, Cr.P.C. Appears to be the person intended by the court which issued the warrant, the Magistrate or District Superintendent, as the case may be, of the District from where such person is arrested, direct the removal in custody to warrant issuing court. It is further provided that if the offence is not bailable or no direction has been endorsed under section 76 on the warrant, the Sessions Judge of the Sessions Division in which the person is arrested may, subject to the provisions of section 497 and for sufficient reasons, release the person on an interim bail on such bond or security as the Sessions Judge thinks fit and direct the person to appear by a specified date before the court which issued the warrant and forward the bond to that court.
4. In the case in hand, no such procedure as provided in section 86 has been adopted. The police of Rahim Yar Khan was not equipped with any warrant of arrest issued under section 76, Cr.P.C., the Magistrate or District Superintendent of Okara District never directed the removal of petitioner Muhammad Sadiq in custody to any court at Rahim Yar Khan. Learned Sessions Judge of Okara Sessions Division, has never been approached in order to meet the mandatory requirements of section 86, Cr.P.C. And such whole of the episode whereby Muhammad Sadiq petitioner was apprehended from Okara in a case registered at' Rahim Yar Khan and, then his shifting to Rahim Yar Khan without fulfilling the requirements of section 86, Cr.P.C. And production of said Muhammad Sadiq before some Magistrate in Rahim Yar Khan and the order passed by that Magistrate remanding the said petitioner to judicial custody is an illegal exercise.
5. Had a warrant as required under section 76, Cr.P.C. Was issued the petitioner Muhammad Sadiq would certainly have been produced before the learned Sessions. Judge sifting at Okara Sessions Division but this was not done. The jurisdiction which was vested in Sessions Judge at Okara is being exercised by this Court under section 497, Cr.P.C. And keeping in view the illegalities pointed out in the above lines petitioner Muhammad Sadiq is admitted to post-arrest bail in case F.I.R.
No,144, dated 7-5-2012 registered under section 489-F, P.P.C. At the Police Station City B-Division, Rahim Yar Khan with one surety amounting to Rs,1,00,000 to the satisfaction of Deputy Registrar (Judicial) of this Court.
6. Keeping in view the highhandedness adopted by the Punjab police with the petitioner Muhammad Sadiq it is ordered that if at any subsequent stage within Province of Punjab 'on the basis of any registered criminal case the person of Muhammad Sadiq is required, the investigating agency of said case would place all the material before the learned Sessions Judge at Okara and subsequent proceedings will be regulated under the directions of learned Sessions Judge concerned. These directions are also applicable in case of other two petitioners, namely, Muhammad A fzal and Muhammad Siddique as the learned counsel for the petitioners expressed his apprehension that the other two petitioners would also be victimized in similar manner.
7. As far as the 'present petition is concerned, three co-accused persons viz. Ranjha, Tahir Mehmood and Muhammad Anwar, have already been allowed bail on 4-6-2012 by this Court in Criminal Miscellaneous No,7184-B of 2012.
8. The F.I.R. Was lodged by the complainant after uncertain period of 5/6 months. Admittedly, there has been relationship of the parties of employees and employer. A civil suit for injunction titled Ch. Muhammad Sadiq versus Fahim Haider and others is pending in between the parties before the competent court of civil jurisdiction at Depalpur and the plaint of the suit contains all required material of financial transaction in between the parties. The complainant of the suit has surrendered to the jurisdiction of civil court and has never moved for rejection of plaint. The dispute in between the parties will finally be settled down after complete trial of the civil suit and the monetary claim raised in criminal action by the complainant would also be thrashed by the civil court. The mala fides on the part of the complainant while in league with the Provincial. Police Department are very much obvious. The petitioners are entitled to be protected against humiliation and rough treatment which is visualized in the peculiar circumstances of the case.
9. Resultantly, this petition is allowed, ad interim pre-arrest bail already granted to the petitioners on 4-6-2012 is confirmed on the already furnished bail bonds.
10. Station House Officer of Police Station City B-Division, Rahim Yar Khan is directed to place on record his explanation as-to under what lawful authority he has allowed the practice adopted by the investigating staff of his police station in picking up the person of Muhammad Sadiq in an illegal manner from Okara and his subsequent shifting to Rahim Yar Khan. His explanation must reach this Court within seven days from today.
Pre-arrest .