MUHAMMAD AFSAR vs THE STATE
This criminal petition under Section 561-A of the Code of Criminal Procedure 1898 calls in question an order passed by the Sessions Judge, Rahimyar Khan, imposing a special cost of Rs. 5,000 upon the petitioner for filing a habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898. The core legal question was whether a citizen seeking the release of allegedly detained persons through a habeas corpus petition should be penalized with costs when the detention is subsequently found to be documented in police records. The Lahore High Court held that penalizing a petitioner in such circumstances discourages citizens from approaching the courts to protect fundamental rights against potential police excesses. The Court set aside the order imposing costs, laying down the principle that the liberty of a citizen is a paramount fundamental right to be jealously guarded, and citizens should not be discouraged or penalized for knocking at the court's doors against police action.
- Whether a petitioner can be burdened with special costs for filing an unsuccessful habeas corpus petition under Section 491 of the Code of Criminal Procedure 1898?
- Does the imposition of costs on a citizen seeking protection against alleged illegal detention discourage access to justice?
- What is the duty of the courts regarding the protection of citizens' fundamental rights against police excesses?
- Section 491, Code of Criminal Procedure 1898
' Through this petition the petitioner has called in question the order dated 10-7-2003 passed by the learned Sessions Judge, Rahimyar Khan whereby the petitioner was burdened with cost of Rs.5000 which was to be paid to Abdul Khaliq, A.S.-I.-respondent No.2.
2. The relevant facts leading to this petition are; that the petitioner filed an application under section 491, Cr.P.C. Stating therein that Muhammad Ahmad and Muhammad Saeed were being improperly detained by respondent. No.2 at Police Station Taranda Suwai Khan. A Bailiff of the Court was deputed and the detenus were produced before the Court. During the proceedings it transpired that the arrest of A the alleged detenus was duly mentioned in the case diary as well as in the daily diary and that the contents of application filed by the petitioner were not correct.
Therefore, while dismissing the application of the petitioner' the learned Judge passed the impugned order relating to special cost.
3. I have gone through the memorandum of this petition and have heard respondent No.2 as well as the learned counsel for the State. It has been noticed that it was duty of respondent No.2 to comply with the orders of the Court and to produce the detenus alongwith relevant record before the learned Court.
4. Admittedly the alleged detenus were not named in the F.I,R. And they were arrested in the case on the basis of supplementary statement of the complainant as is evident from the impugned order dated 10-7-2003. The supplementary statement was not recorded in the presence of the petitioner, so, he could never know that the detenus had been implicated. The liberty .Of a citizen is one of the most important ftmdamental rights and should be very jealously guarded. The police unfortunately enjoys the reputation of exceeding its powers. It is one of the functions of the Court to ensure that the police does not abuse its powers. Normally, Courts take notice of police excesses when a citizen/Faryadt knocks its door. In the existing circumstances in our country, it will not be in the interest of justice to close this door or to discourage a citizen to knock it. Thus, in the circumstances I allow this petition and the order dated 10-7-2003 relating to special costs is set aside.