MUHAMMAD SHAFI Versus MUHAMMAD BOOTA

This petition under section 491 of the Code of Criminal Procedure was filed by Muhammad Shafi alleging that one Muhammad Arshad son of Wali Muhammad, resident of House No. 414/H, Inside Akbari Gate, Lahore, was in wrongful detention at Police Station Gulberg, Lahore, since the 9th of October 1973. The petition was presented at 1045 before the Deputy Registrar (Judicial) on the 10th of O.-tobjr 1973. At the request of the learned counsel that the petition be heard the same day, it was laid before me whereupon I deputed a Bailiff of my Court to recover the alleged detenu and produce him in Court. It was further ordered that if he was in police custody in a case registered against him, service shall be effected on the respondent-police officers and the alleged detenu will not be brought in Court. The case came up for hearing before me on the 11th of October 1973 when the Bailiff submitted his report that the alleged detenu had been arrested on the 10th of October 1973 under section 54 of the Code of Criminal Procedure before he reached the Police Station at 2-45 p.m. The respondent-police officers also submitted their written statements. Respondent No. 1, Muhammad Boota, S. H. O., Police Station, Gulberg, pleaded that he was not present at the Police Station when the alleged detenu was arrested by respon dent No. 2, Muhammad Saleem Butt, A. S. I., By my order, dated the 11th of October 1973, I admitted Muhammad Arshad to bail subject to his furnishing security in the sum of Rs. 1,000.00 with one surety in the like amount to the satisfaction of the Assistant Commissioner, Lahore. The case was, however, adjourned to consider the question whether or not on the facts stated in the written statement of respondent No. 2, any action could be taken under section 54, Cr. P. C.

2. According to the allegations in the habeas corpus petition the case was registered against Muhammad Rafi, petitioner's brother, at Police Station Gulberg, Lahore. The accused was, however, granted bail before arrest by the Additional Sessions Judge, Lahore, on the 9th of October 1973. On that very evening, the respondents raided Pak Lybia Hotel situate at 24-Abbot Road, Lahore, and arrested Muhammad Arshad, aged 15 years although no case was registered against him at any Police Station. Muhammad Saleem, A. S. I., in his written statement categorically stated that Muhammad Arshad was never joined in the investigation of the case at any time before the 10th of October 1973 and that he was arrested on that day at LO) p.m. The reasons for arrest of Muhammad Arshad have been stated in paragraphs 5 and 6 of the written statement submitted by Muhammad Saleem, A. S. I., and the same are to the following effect

"(5) That on reaching Guru Mangat the answering respondent was informed through a secret information by an informer that Muhammad Arshad, the alleged detenu, Suleman and Qaiser used to commit such like offences and used to visit the houses during day time posing themselves as property dealers.

(6) That the detenu and Suleman and Qaiser who are not residents of Gulberg but live in the city were also seen there. They were asked to stop as they wanted to slip away. Ch. Umar Din and Ch. Farzand Ali also reached there. These persons were interrogated and they confessed their guilt and promised to get the stolen property recovered. All the 3 persons were arrested at about 1 p.m. and a report to that effect recorded in the Gulbarg Daily Diary Report No 10 at I-45 p.m. They were escorted to Police Station Civil Lines where they were put in the lock-up at 2-30 p.m. and a report to that effect recorded in the Daily Diary of Police Station Civil Lines.

3. I must observe at the very outset that the statement of respondent No. 2 that Muhammad Arshad was never joined in the investigation before the 10th of October 1973 and it was only at 1-u0 p.m. that he arrested him under section 54, Cr. P. C.. is far from being true. The habeas corpus petition was presented in the High Court at 10-45 a.m. on the 10th of October 1973 alleging that Muhammad Arshad was in wrongful confinement of the respon dents. If the statement of respondent No. 2 himself that he did not arrest Muhammad Ar3had before 1.00 p.m. on the 10th of October 1973 is accepted as correct, it is not understandable as to how the petitioner could know that Muhammad Arshad would be going to Guru Mangat where the respondent shall also reach and upon a "secret information" to be laid by some one the respondent shall arrest Muhammad Arshad and, therefore, he should file a habeas corpus petition in advance. The respondent appears to have concocted the entire story upon receiving information about the habeas corpus petition in the High Court and the order passed thereon, because it does happen at times that the Police Officers get information when an order is passed by the High Court detailing a Bailiff to effect recovery of an alleged detenu/detenue.

4. Moreover, the case of the respondent is that he left Gulberg Police Station in order to investigate the case registered at the instance of one Kh. Ghulam Sadiq, resident of 64-A. E. I., Gulberg III. The case, according to his own averment in paragraph 1 of the written statement, was registered on the 19th of July 11473, and strangely enough he proceeded to investigate the matter only on the 10th of October 1973, i.e., after more than three months. The moment he reached Guru Mangat, be was given a "secret information" that Muhammad Arshad in the company of Suleman and Qaiser "used to commit such like offences and used to visit the houses during day time posing themselves as property dealers" and that since he found Muhammad Arshad there he arrested him under section 54, Cr. P. C. what a fantastic episode? Section 54 of the Code of Criminal Procedure under which Muhammad Arshad was arrested is in the following terms :-

"54. When Police may arrest without warrant. (1) Any Police-Officer may, without any order from a Magistrate and without a warrant, arrest-

First, any person who has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has been received, or a reasonable suspicion exists of having been so concerned;

The words "reasonable suspicion" do not mean a mere vague surmise, but a bona fide belief on the part of the Police Officer that an offence has been committed or is about to be committed. Such belief has to he founded on some definite averments tending to throw suspicion on the person arrested. The secret information that the alleged detenu "used to commit such like offences" was, in no way sufficient to believe that he was concerned with the commission of the offence and the exercise of power under section 54, Cr. P. C., by the respondent was totally uncalled for. The action of a Police Officer' under section 54, Cr. P. C. must be guarded inasmuch as he should first satisfy himself about the credibility of the information which, a3 stated already, should relate to definite facts. It was not at all the intention of the law-giver that the Police Officer should at his own sweet will arrest anybody he likes, although he may be a peace loving citizen of the country. I have no doubt whatsoever that the action of the respondent in arresting Muhammad Arshad in this case was based not only on merely a vague surmise but for a male fide intention to displace the averment that he was being kept in wrongful confinement by the respondent since the 9th of October 1973. The arrest of Muhammad Arshad by Muhammad Saleem Butt. A. S. I. under section 54, Cr. P. C. was a wrongful detention.

5. Section 491 of the Code of Criminal Procedure and Article 9 of the Constitution of the Islamic Republic of Pakistan provide a remedy in all cases of wrongful deprivation of personal liberty. The Court secures the liberty of the person by ordering his immediate release from unlawful detention. It cannot grant any other relief to the detenu in respect of allegations of wrongful detention or any allegation of torture or some other inhumane acts committed on his person. This, however, does not mean that such a person has no remedy in law. For every wrong there is a remedy, and for every injury caused to a person he can claim damages in the form of compensation. Wrongful detention is also an offence under the Pakistan Penal Code, and if the police is reluctant to register a case or investigate it, the complainant may file a complaint direct to the Magistrate. If only persons in Pakistan were to become conscious of their rights under law, and enforce their claims for damages for wrongful detentions under the law of Torts against Police Officers guilty of such highhandedness and illegal acts, the reign of terror let loose by then will, to a great extent, come under control. They indulge in these activities without compunction, because they fear no harm. The Court on finding that the detention is illegal, orders release, and the detenu, feeling satisfied with the release, taken no further action. With such an apathy on the part of suffering people one cannot expect any change in the conduct of delinquent Police Officers. Unless there is a realization of one's rights, and consciousness of the fact that tire mis creants should be brought to book, there cannot be a hope for better conditions.

6. For the foregoing reasons, I would accept this petition and declare that the detention of Muhammad Arshad by Muhammad Saleern Butt, respondent No. 2, was without lawful authority.

K. B. A. Petition accepted.