ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
C.P.No.S- 778 of 2018
DATE ORDER WITH SIGNATURE OF JUDGE
22.06.2018.
Syed Tarique Ahmed Shah, Advocate for petitioner alongwith petitioner.
Mr. Allah Bachayo Soomro, Additional A.G. alongwith SIP Muhammad Bux Lakho PS Nasarpur.
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Through this petition, the petitioner has sought the following relief(s):-
“(a) That, this Honourable Court may kindly be pleased to direct the respondents in accordance with law.
(b) That this Honourable court may kindly be pleased to direct the respondents to provide protection to the petitioner, his family members and P.Ws of instant crime No.09 of 2018 in order to ensure the opportunity of fair trial shall be provided to the petitioner PWs without any duress, coercion and fear.
(c) That, this Honourable court may kindly be pleased to direct the SSP Tando Allahyar and incharge CIA Tando Allahyar to produce the record before this Honourable Court since registration of instant FIR till today in respect of taking steps for arresting the absconding accused.
(d) That this Honourable Court may kindly be pleased to direct respondent No.2,3,4 and 7 to take substantial steps from procurement of arrest of absconding accused persons of above crime through modern devices i.e. calling details of absconding accused persons from NADRA authorities and getting information from the franchises of Mobile companies regarding the phone Sim’s are using by the absconding accused persons and basis whereof the location of their availability can be detected.
(e) That, this Honourable Court may kindly be pleased to direct the respondent No.1 to 3 to take legal action against respondent SSP Tando Allahyar and Incharge CIA Tando Allahyar, regarding non arresting the absconding accused persons and they are roaming freely in the surrounding infront of petitioner and other persons of the area.
(f) That, this Honourable Court may kindly be direct to the respondent No.1 to 3 to enquire the fat from SSP Tando Allahyar and SHO PS Nasarpur that why on the day of incident i.e. 09.03.2018 the polic was not deployed at the Masjid situated in Almani Muhallah, where the petitioner and deceased Sayed Darbar Ali Shah performed their Juma prayer because on every Friday regularly police was deployed.
(g) Any other relief (s), which this Honourable Court deem, fit and proper may be granted.”
2. Notice was ordered. Comments have been filed wherein it is stated that some of the accused have escaped after rejection of interim bail and efforts are being made to arrest them.
3. Learned counsel for the petitioner submits that the absconding accused are influential persons as they are in police employment, whereas, the official respondents are hands in glove with the absconding accused, and therefore, no efforts are being made to arrest them despite the fact that they have been nominated in FIR of murder.
4. Heard learned counsel for the petitioner, learned A.A.G. and perused the record.
5. Though in the comments, the respondents have stated that efforts are being made to arrest the absconding accused; however, it may be observed that this issue of absconding accused and failure on the part of police officials in arresting them has already been addressed in the case reported as Nasrullah v. Station House Officer, Police Station Jacobabad and 6 others (PLD 2016 Sindh 238), wherein a complete mechanism and guideline has been provided for acting further in such situations. The relevant observations are contained in Para 43 onwards which read as under:-
“43. Therefore, the Inspector General of Police, DIGPs and SSPs, as phase-1, are directed to:
i) ensure proper maintenance of relevant register(s), as insisted by Chapter-XXIII of Police Rules, 1934 at every police station or at relevant place, as explained by the relevant rules;
ii) ensure proper checking thereof periodically;
iii) ensure progress in this regard and reward to rightful and necessary action against negligent;
iv) ensure attachment of properties of such proclaimed offenders against whom proceedings under section 88, Cr.P.C. stood completed by approaching concerned Mukhtiarkar or head of Revenue authority at district level;
v) ensure creation of well-organized website(s) containing details of proclaimed offenders and absconders wanted by the concerned Courts as well as Police Stations concerned of relevant districts with friendly use/utility for private informants, whereby the information conveyed by the informant should be sent automatically to the concerned I.O/Police Station, S.S.P and District and Sessions Judge simultaneously. Needless to add here that secrecy of private informant from general public should be ensured;
vi) ensure wide circulation of information regarding creation of such website(s) for general public in electronic and print media, seeking their cooperation in arrest of those proclaimed offenders and absconders with assurance of their anonymity of informants in order to curb the criminal elements at large;
vii) ensure proper display, communication and update of information/ data of absconders/proclaimed on such website periodically;
In second phase, they are further directed to:
a. establish 'Cells' on districts and divisions levels specifically for the purpose of maintaining record of such persons, which shall be fully equipped with modern devices;
b. the Cells shall develop a relation-nexus with NADRA in getting/ collecting data of such persons;
c. the Cells shall also develop a mechanism by consultation with Member, Board of Revenue, Sindh, so as to have the details of properties of all such persons and to proceed for attachment thereof;
d. the Cells shall also develop a net-working with consultation of State Bank for getting/obtaining details of Bank-accounts of such persons and then to process such information to concerned court(s)/ authority for necessary order of attachment / seizure e.t.c as, such money falls within meaning of Section 88(3(a) of the Code;
e. the Cells shall also communicate details of proclaimed offenders to F.I.A for placing their names in E.C.L (Exit Control List).
A detail report regarding efforts taken towards first phase, shall be communicated to this Court within a period of one month, wherein detailing the issuance of 'reward to deserving'; 'action against negligent' and progress in lessening such mountain of absconders / proclaimed offenders. All the S.H.Os shall be directed to submit quarterly report to the ILLAQA Magistrate regarding progress towards matter of absconders/proclaimed offenders.
44. The report regarding second phase, shall also be submitted to this Court within a period of three months showing progress towards such object. Any further effective addition in first and second phase shall be a mark of appreciation on part of the IG, DIGs and SSPs of Police.
45. At this juncture, it is worth to add here that issue of special fund, meant for investigation, be mechanized in a manner so as to eliminate all chances of intervention of third person and such fund should directly reach the Investigation Officer concerned through cross-cheque(s), which surely will make the investigation officer accountable for speedy and effective investigation without an excuse of having no fuel etc. Needless to add that purpose of 'reward' or allocation of funds towards investigation was always to encourage investigating officers to use all means without a fear of spending his own money (salary) in the name of 'duties'. Separate record shall be maintained on police station(s) level, non-compliance shall expose to the contempt proceedings.
46. Since, as already discussed particularly with reference to Sections 87 and 88 of the Code, the Court(s) are under heavy obligation(s) to complete process of publication of proclamation (87) and that of attachment (88) within strict meaning, purpose and object of the provisions, which cannot be achieved unless the Court(s) take advantage of available means particularly that of establishment of I.T. Cell at District Level, therefore, the I.T. personnel working at District level should be engaged to:
* prepare and maintain data of proclaimed offender(s) of Judicial District; maintaining the statistics thereof on daily basis and to present the same before District and Sessions Judge for communication to Sr. Superintendent of Police of that District for progress and report thereof, which, if found unsatisfactory, be communicated to DIGP;
* Fix all cases kept on dormant file on quarterly basis and call progress report in those matters by directing concerned SHOs.
47. It is surfaced that investigation officers in many cases submit report under 'A' class thereby burying the file in dump of files though it is settled principle of law that investigation continues till the crime is unearthed and guilt or innocence is determined by the Court(s) of law, hence in such like matter(s) (reported under 'A' class), the responsibilities of the police do not come to an end by submitting such paper alone nor that of Magistrate concerned who otherwise is ultimate authority and does possess supervisory jurisdiction. Thus, judicial propriety demands that learned Magistrates shall maintain record of such case(s) and shall keep calling report(s) from police station concerned on quarterly basis and matter shall be fixed at such occasion with notice to complainant/victim party to show that what efforts have been taken for completing the investigation which in no way fulfills by submission of a report under 'A' Class. Similarly, the cases, wherein police submits final report/charge sheet by showing all accused as absconders under Section 512, Cr.P.C., shall not be treated as final report; learned Magistrate shall postpone the cognizance in terms of Section 344, Cr.P.C.; while by treating such report as an interim report, shall fix those cases fortnightly for progress report.
48. All the District and Sessions Judge(s) are accordingly directed to implement the above directive(s) so that very spirit and object of the provision of Sections 87 and 88, Cr.P.C be achieved. Needless to add that all concerned department(s) shall cooperate with DIGP and Court(s) concerned.
49. In the end, it would be relevant to mention that all these petition(s) were for one and same relief i.e. directions for arrest of absconding/proclaimed offenders, which I believe shall stand satisfied now. It is also to be added that a writ of mandamus is available where one, legally bound to perform is guilty of avoiding. However, a police officer needs no direction from the High Court even for performing his duty which otherwise demands for arresting the accused. However, the DIGP shall pay special attention in matters, brought before this Court by petitioners and shall ensure arrest of the absconding accused persons and so also use of all means for compelling them to appear.
50. Accordingly, Registrar of this Court shall communicate this judgment to all the learned Judges of District Courts. Office shall ensure that compliance is made.
51. In above terms all captioned petitions are disposed of.”
6. In view of such position, instant petition is disposed of by directing the police officials to act strictly in accordance with the guidelines as above and shall make all possible efforts to comply with the above directions to arrest the absconding accused. Similarly, the trial court is also directed to act strictly in accordance with dicta laid down in the aforesaid judgment which has already been circulated to it through Registrar of this court.
Petition stands disposed of in the above terms.
JUDGE
Tufail