BURHAN vs The STATE and others

ORDER

HASAN FEROZ, J.---The above Criminal Revision Applications has been filed by Applicant Burhan son of Muhammad Yaqoob Qureshi, being aggrieved and dissatisfied with the impugned order dated 14.9.2014 passed by the learned Vth Additional District & Sessions Judge, Karachi Central in H.C.P. No. 53/2014.

2. The facts in brief giving rise to the present Crl. Revision Application are that in the night in between 5th and 6th April, 2014 the Respondent No.2 forcibly taken away the real brother of the applicant namely Muhammad Usman when he was going with his friend on motorcycle No. LOP 3311, Engine No. M-11429 owned by his friend. The Respondent No.2 DSP ACLC Police Station demanded Rs.500,000/- for his release otherwise he shall involve him in any false criminal case.

The applicant approached Respondent No.2 to meet with his brother Muhammad Usman but Respondent No.2 asked the applicant to pay Rs.100,000/- in advance. The applicant paid Rs.60,000/- in presence of his relative Muhammad Shafiq to the Respondent No.2 in his office on 07.04.2014. Respondent No.2 took out Muhammad Usman from Room No.23 and applicant met Muhammad Usman. Thereafter applicant sent a complaint to I.G. Of Police Sindh through TCS on 08.04.2014. The applicant filed Criminal Revision Application No.53/2014, under section 491, Cr.P.C.

For recovery of detainee before the Sessions Judge Karachi (Central) which was marked to the learned Vth Additional Sessions Judge Karachi (Central). On 09.04.2014 the Respondent No.4 deputed Xth Judicial Magistrate Karachi (Central) to visit the Police StationACLC Sharifabad for recovery of detainee. The learned Judicial Magistrate alongwith his Reader, applicant and his counsel proceeded to P.S. ACLC at 11-45 a.m where one person Imran son of Quresh Muhammad who was already confined in the Police Station on query in the first instant stated that in the early hours of the day he had seen the alleged detainee Muhammad Usman at the P.S. Thereafter, the police removed his custody. Thereafter the learned Magistrate on the pointation of the applicant visited the Room No.23 of the P.S. And found one motorcycle bearing No. LOP-3311, Maker Honda, Engine No. M-11429 was found standing. The learned Magistrate submitted his report on the same day by disclosing all the above mentioned true facts.On 10th April, 2014 the applicant filed an application for issuance of direction to the respondent No.2 for producing the detainee namely Muhammad Usman before the Court but neither the respondent No.2 appeared before the learned Vth Additional Sessions Judge Karachi (Central) nor produced the detainee. The learned ADJ dismissed the main petition under SectionA 491 Cr.P.C. Vide order dated 14.04.2014.

3. Mr. Muhammad Ramzan Tabbasum, learned counsel for applicant contended that the impugned order was passed without applying judicious mind and without considering the evidence specially the report of learned Magistrate. He also contended that according to the report of learned Magistrate the said detainee was present on the same day in early hours at the lock up of ACLC Sharifabad which facts were verified by one person namely Imran son of Quresh Muhammad who was already locked up in the said P.S. But the learned trial Court dismissed the mainapplication by holding that the detainee was not found at P.S. ACLC Sharifabad.

4. I have heard the learned A.P.G. Who has contended that the accused was arrested from spot and one TT pistol along with 3 live bullets were recovered from his possession. He further contended that accused had been involved in various offences viz: 302 and 392, P.P.C. Prior to this incident. At the time of hearing of the present Revision, A.S.I. Ashiq Hussain was also present who disclosed that the accused was arrested on 16-4-2014 and was not in police custody at the time of arrest. The learned APG further contended that the allegation with regard to wrongful confinement is unfounded and as such the Habeas Corpus petition was rightly dismissed by the learned ADJ, Karachi (Central) on 14-4-2014.

5.I have in my view application made to District and Sessions Judge Karachi (Central) dated 09.04.2014 under section 491, Cr.P.C. Which was transferred to Vth ADJ who ordered for raid at the police station through Judicial Magistrate vide order dated 09.04.2014 whereby he directed the concerned Judicial Magistrate to visit the PS ACLC Sharifabad, Karachi in order to ascertain if detenue namely Muhammad Usman is illegally detained in said PS, if he is found illegally detained, so after recording his statement he may be released forthwith. In this regard the report of Magistrate is also in my view which speaks that the Magistrate has reached at PS at 11:45 am, took daily diary Roznamcha of PS in his custody and started search of detenue. The Duty Officer was also present at the spot who showed his ignorance about" case or inoiry against dctenu and on search of all rooms within the boundary walls of PS, detenueMohammad Usman was not found however, one Imran son of Quresh Muhammad who was locked up in the PS at relevant time on query of Magistrate at first instance stated that in early hours of the day he had seen the alleged detenue at PS, however, when this accused was brought before the Magistrate by the duty officer, SIP Yaqoob in the office of Incharge of PS. The said lmran took U-turn and showed his ignorance regarding the alleged detenue at the PS. The Magistrate has also mentioned in the report that one motorcycle bearing Engine No.M-11429 was found in Room No.23 of PS. The applicant at the same time pointed that the motorcycle had been the same on which the detenue was apprehended however no proof was available with the applicant. The Duty Officer and other police officials during raid proceedings failed to explain any cogent reason with regard to presence of the said motorcycle at their P.S.

6. I have in my view that the impugned order of learned ADJ is more confined to the illegal demand made by the police of payment of the amounts rather than inquiring into the wrongful confinement of a person and the essence of section 491, Cr.P.C. Has not been fully adhered to keeping in view the raid report submitted by the Magistrate which reflects the illegal detention of the detenue from the words of another detenue confined at the PS and also with the presence of motorcycle pointed out by the applicant to be the same which belongs, to the friend of the detenue along with which the detenue was alleged brought to the police station.

7. I have also in my view that in the first instance the information fathered by the Magistrate from another accused confined at the same Police Station withregard to the presence of the detenu in the early hours of the day accompanied with the circumstantial evidence of presence of Motorcycle at the room at Police Station for which the Duty Officer and other Staff could not furnish any satisfactory account of its presence in Room No.23 and thereafter subsequent U-turn of the accused as stated in his report by the Magistrate leads to the inference of presence of detenue Usman in the early hours of the day before the raid of the Magistrate. It is also not out of probability that with the arrival of Magistrate at PS the detenu might have been shifted or concealed in any other part near or away from the PS.

9. I have also in my view the application made to I.G. Police through TCS Courier service by applicant Burhan mentioning therein all what has been stated in the Petition under section 491, Cr.P.C. This application and the raid report by the Magistrate substantiate the contents of application filed under section 491 Cr.P.C. And as such it seems that the learned ADJ has not taken into consideration facts arising over the record and instead of considering all available material that the protection of fundamental rights of a citizen are guaranteed under Articles 9 and 10 of the Constitution of Pakistan which ought to be guarded under section 491, Cr.P.C. R/w Article 199 of Constitution of Islamic Republic of Pakistan, as to the liberty of a person who has been kept illegally and improperly.

10. It is surprising that a person who is clamoring for safety of the detenu allegedly detained through illegal means and be that, one aspect has been substantiated that the detenu was brought and kept at Police Station which should have been inquired judiciously by takingdown evidence and then the Court should have reached the conclusion, whereas in the instant case material aspect of essence of section 491, Cr.P.C. Has been ignored on the spectrum of facts and law, hence the order passed by learned ADJ is not sustainable which is set-aside with directions to learned ADJ to decide this matter afresh after holding inquiry into the allegations of applicant regarding illegal detention of his brother Mohammad Usman and his subsequent arrest under section 23(A) of Sindh Arms Act, 2013 and if the accused is found to be illegally detained during the alleged period then appropriate proceedings be initiated against respondents Nos.2 and 3 in 6accordance with law and the case registered under section 23-A of Arms Act against the present applicant/accused pending in the Court of law be dealt strictly in accordance with law in the light of findings arrived in the above application under section 491, Cr.P.C.

' In terms of above, Crl. Revision Application No.74 of 214 stands disposed off.