ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
C. P. No.D-405 of 2012.
PRESENT:
Mr. Justice Muhammad Shafi Siddiqui,
Mr. Justice Syed Muhammad Farooq Shah,
Petitioners : Ali Gohar and Jamaluddin, both by caste Junejo.
Respondents : Senior Superintendent of Police, District Kamber-
Shahdadkot, at Kamber & others.
Date of Hearing : 30.1.2013.
Mr. Ali Azhar Tunio, advocate for the petitioners.
Mr. Ameer Ahmed Narejo, State Counsel, alongwith SIP Legal Raza Muhammad Sohu on behalf of S.S.P., Kamber-Shahdadkot, SIP Jan Muhammad Samtio, SHO PS Kamber, ASI Gulzar Ali Buriro of PS Kamber, PC Muhammad Ramzan, HCRoshan Ali and PC Muhammad Faheem of PS Kamber.
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MUHAMMAD SHAFI SIDDIQUI, J.- The brief facts of the case are that petitioner No.2, aged about 15 years, who was a student of Matric and had appeared in S.S.C. Part-II Annual Examination, in the month of April, 2011 through Govt. (P) High School, Kamber, bearing Roll No.100385, was detained by the respondents and was taken into custody on 08.4.2012. It is contended that the petitioner No.1 filed a Criminal Misc. Application and pursuant to the orders of the Sessions Judge, Kamber-Shahdadkot, raid commissioner was appointed, who submitted his report on 12.4.2012. The contents of the report are as under :-
"To,
The Honourable,
District & Sessions Judge,
Kamber-Shahdadkot.
Subject: Raid Commissioner Report.
Respected Sir,
I have the honour to submit the Raid report on the application of one Ali Gohar son of Muhammad Mithal Junejo, under section 491, Cr.P.C in order to ascertain the illegal detention of detenue Jamaluddin (son of the applicant) at the Police Post Shaikh Wah of Police Station Kamber, as under :-
That Sir I reached at PP Shaikh Wah at 10.15 a.m., where PC Ghulam Shabir Chandio was present, the applicant was accompanied with me, I found that two younger boys were tied with handcuffs, I enquired from the Police Constable about their detention who disclosed that one Head Constable of PS Kamber brought them at the PP, I enquired from the detenues about their whereabouts who disclosed their names as Jamaluddin son of Ali Gohar Junejo and Rashid son of Mashooque Gopang. I brought them at PS through PC Ghulam Shabir, and reached at PS at 1050 hours, where duty officer ASI Allah Warayo Jagirani was present as duty officer, I took Roznamcha Register in my possession, then I demanded criminal record from the duty officer, who produced copy of F.I.R No.84/2012, U/S402, 399, PPC in which both alleged detenues are nominated with parentage, I found that no entry in Roznamcha Register is mentioned and no mashirnama of arrest is prepared, I recorded statement of both detenues who disclosed that they were arrested by PC Ramzan Metlo, PC Zubair Memon from the city and detained at different places, maltreated by the police. I direct the duty officer to produce both detenues before this Court today at 1.00 p.m., to produce the relevant record and written reply.
The report alongwith copy of entry is submitted, as desired.
Yours obediently,
Sd/-12.04.2012
(Mumtaz Ali Shaikh)
Esstt: Incharge/Raid Commissioner."
2/- It is contended that on 12.4.2012, for the first time, on the recommendation of the learned Sessions Judge the detenue was produced by ASI Gulzar Ali Buriro of P.S Kamber at 3.00 p.m., before Civil Judge and Judicial Magistrate-II, Kamber and 14 days remand was granted with effect from 12.4.2012 to 26.4.2012 to complete the investigation. However, there was no explanation regarding the illegal detention with effect from 8.4.2012 to 12.4.2012. The detenue who was subsequently shown to be booked in F.I.R No.84/2012, under Sections 402, 399, 148, 149, P.P.C of Police Station Kamber, was referred to Senior Medical Officer, Central Prison, Larkana for medical checkup and treatment and the said doctor submitted report on 13.4.2012. The said report is available as annexure-F to the memo of petition, which reads as under :-
"It is stated that UTP Jamaluddin son of Ali Gohar Junejo presented to undersigned for the bruise and abrasions on the scapular region, gluteal region, leg led near knee joint and over the face on Zygomatic bone. However no sign of fracture is evident. Due to those problems appropriate treatment has been given."
3/- Subsequently, a bail application was moved and the detenue was enlarged on bail on 18.4.2012 and was subsequently acquitted.
4/- It is contended by the learned Counsel that for no reason or occasion the detenue was booked in the subject F.I.R No.84/2012 and despite this there was no explanation to detain the detenue i.e., petitioner No.2 for 4 days without producing him before the Judicial Magistrate for seeking remand. It is contended that he was kept in illegal detention where he was given rough treatment, which is evident from the medical report given by the Senior Medical Officer, Central Prison, Larkana, dated 13.4.2012.
5/- Mufakhar Adeel, PSP, Incharge Senior Superindent of Police, Kambe-Shahdadkot, ASI Gulzar Ali Buriroi of P.S Kamber, HC/1704 Roshan Ali Buledi of PS Kamber, LNC/0857 Muhammad Ramzan Metlo of PS Kamber and PC/0801 Faheem Memon of PS Kamber, have filed their statements with supporting affidavits, however none of them has provided any explanation regarding the illegal confinement of the petitioner No.2 for 4 days. Today report/statement was filed by SIP Jan Muhammad Samtio, SHO PS Kamber and even he did not provide any explanation regarding illegal confinement of the detenue with effect from 8.4.2012 to 12.4.2012, on which date the raid commissioner discovered him.
6/- Learned State Counsel at the very outset concedes that two detenues were kept in illegal confinement for four days and they were required to be produced within 24 hours before the concerned Magistrate which duty the concerned officials had failed to discharge. However, he submits that after four days they were produced before the Judicial Magistrate after they were located by the raid commissioner. It is matter of fact that subsequently the alleged detenues were also acquitted from the aforesaid crime registered vide crime No.84/2012 at P.S Kamber for an offence under Sections 402, 399, 148, 149, P.P.C.
7/- We have heard the learned Counsel and perused the record.
8/- It is a matter of fact that the petitioner No.2 was kept in illegal confinement with effect from 8.4.2012 to 12.4.2012 and there is no explanation provided by any of the respondents. This seems to be a glaring example where the police officials abused their powers blindly. In this case also petitioner No.2 appears to be a victim of these police officials. The petitioner No.2 was a student of Matric and he was busy in his examination, which was to commence on 9th April, 2012 and he was picked up on 8.4.2012, thus he could not appear in his Matric Examination on account of his unlawful confinement.
9/- Such situations were earlier dealt by a Division Bench of this Court in the case of Mazharuddin v. The State, reported in 1998 P.Cr.L.J 1035 and the case of Ali Ahmed v. Muhammad Yaqoob Almani, reported in PLD 1999 Karachi 134. In terms of para 6 of the judgment reported in PLD 1999 Karachi 134, the Division Bench of this Court has observed as under :-
"6. Awarding of cost in a matter of habeas corpus is not a new concept and is permissible under Section 491, Cr.P.C as argued by Mr.Kamaluddin. One may find more cases than cited by Mr. Kamaluddin where monetary compensation or cost was imposed in proceedings under Section 491, Cr.P.C where the Courts came to conclusion that a person was deprived of liberty without any lawful authority or reason by the Police Officials. One of the earlier cases was Alamgir v. SHO Model Town, Lahore, 1983 P.Cr.L.J 76, which was decided some 16 years ago. In that case, detenue Niaz Ahmed and the other two ladies accepted the apology tendered by the concerned officer, despite that cost of Rs.500/- was imposed on the police officers. In Abdul Qayyum (supra) cost of Rs.3000/- was imposed on the Police Officer/A.S.I Naimat Ali for keeping in detention Muhammad Rafiq without mentioning the fact in the daily diary. In Abdul Majeed (supra), the view held in Alamgir and Abdul Qayyum (supra) was followed and the SHO of Police Station Rohelanwali was directed to pay cost of Rs.3000/- to the detenue Pir Bakhsh and Rs.2000/- to Muhammad Shafi on a specific date, i.e., 16.11.1994 in the Court. It was further observed that in case of failure to pay the said amount, penal action shall be taken against the police officer, besides receiving the cost as arrears of the land revenue. Reference is also made to the case of Muhammad Ibrahim v. SHO Police Station Sheikhupura, 1990 P.Cr.L.J 1717. The SHO and S.I involved in the detention of the petitioner's father, were ordered to pay a sum of Rs.2000/- to the petitioner as cost. It was observed by a learned Single Judge of Lahore High Court while imposing cost in the case of Muhammad Ibrahim (ibid) that "As the dignity of the alleged detenue has been violated in breach of the law, so it is the duty of the Court to render help and protect the same as far as possible. Thus guided by the Constitutional provisions, the petitioner has been ordered to be monetarily compensated and the compensation has been assessed tentatively which has been paid in Court". We are in full agreement with the views expressed by the learned Single Judge of the Lahore High Court in the case of Ibrahim."
The Division Bench also laid down the parameters which are open to this Court to pass the orders, which are as under :-
(i) To issue rule nisi for production of the detenue before the Court;
(ii) To set the detenue free;
(iii) To convert the proceedings into bail application and to grant bail to the detenue;
(iv) To order registration of case against Police Officer/private person who was found violating fundamental rights of the detenue;
(v) To direct Police Authorities for conducting departmental proceedings against the Police Officer found responsible for illegal detention;
(vi) Where the Court is satisfied that the respondent Police Officers have acted in violation of the Court directions or failed to obey the same, to order institution of Contempt of Court proceedings against such person;
(vii) To award cost against the Police Officer and in favour of petitioner for the expenses incurred in getting the detenue released;
(viii) To award monetary compensation to the detenue who was deprived of his freedom; and lastly,
(ix) To dismiss the petition where the detention is found to be lawful and bonfide.
10/- Thus, it has long been decided that the questions as above could be determined in the petitions involving the issue of Haebus Corpus. The material that has been placed before this Court is sufficient to indicate that the detenue was deprived of his liberty without lawful authority and without any reasonable cause and in violation of due process of law as the respondent is not able to legally justify the detention of the detenue. Though the learned State Counsel concedes to the extent that detenue was detained for four days i.e., with effect from 8.4.2012 to 12.4.2012, however he was already booked in crime No.84/2012. Such is hardly an excuse, as despite his involvement in the F.I.R the official respondents were under obligation to produce him before the Magistrate within 24 hours of his arrest, which has not been done and has been acceded to. This situation was also met by a Division Bench of this Court in the case of Mazharuddin (supra). The Division Bench in the aforesaid case held as under :-
"47. Fortunately the burden on the tax-payer relieved on account of certain provisions which already exist in our legal system. Under Article 199(1)(c) a direction can be made by the Court not only to Government but to any person performing any function or exercising any authority within the territorial jurisdiction of the Court. Moreover, under the Civil Servant (Efficiency and Discipline) Rules, the Government can always, apart from taking disciplinary action, recover the amount of any loss sustained by it on account of a wrongful act of a civil servant. However, we have not been able to discover any clear guidelines, even under the law of torts, upon which the quantum of compensation (general damages) for unlawful imprisonment is made and reported cases show that they are determined in the discretion of the Court. We would, therefore, hold that in such cases, the Court may award any amount of compensation that it considers reasonable to provide redress to the victim against deprivation of his fundamental right to liberty and dignity.
48.
49.
50. ...
51.
52.
53.
54. From the above rather long drawn discussion we would like to summarise our conclusion on the legal questions as under :-
(i) When a Court finds that a person in custody was detained without lawful authority or in an unlawful manner, it could apart from directing his release, pass any appropriate incidental or consequential order as it may consider proper in the interest of justice under Article 199 of the Constitution.
(ii) That the jurisdiction of this Court to grant relief under Article 199(1)(b)(i) or Article 199(i)(c) is not hedged by the limitation of English precedents or provision of Sub-constitutional legislation.
(iii) In case such detention prima facie amounts to a penal offence the Court could direct that the case against a person responsible for such unlawful detention may be registered and tried in accordance with the law.
(iv) An order merely directing the release of a person from custody upon finding his detention illegally and condoning the violation of his most cherished fundamental rights of liberty and dignity in defiance of the requirements of law and the Constitution may not be appropriate relief to which such person may be entitled. Under the wide powers available to this Court under Article 199 of the Constitution it would be proper to award monetary recompensation to a victim of violation of fundamental rights.
(v) The liability to pay such compensation is in the nature of a public law duty as distinguished from the private law right of a citizen to claim damages in tort and can be enforced in proceedings under Article 199 of the Constitution. The amount of compensation paid or payable under these proceedings, however, will be taken into account by a Court subsequently trying a suit for damages.
(vi) That the amount of such compensation would be determined by the Court in its discretion keeping in view the principle applied in awarding general damages in case of false imprisonment and exemplary damages in cases of malafide conduct of public officer under the law. Special damages sustained by a victim of unlawful imprisonment, however, can only be proved through ordinary civil suit. In accordance with the decision of this Court such compensation ought to be substantial and not nominal.
(vii) The liability to pay such compensation would devolve jointly and severely upon the State as well as the public officials responsible for illegally depriving a citizen of his liberty. The State/Government however, would be entitled to recover the amount paid/payable to the detenue from such officials for having caused wrongful loss to the Government through misuse of powers under the relevant Service Rules applicable to such official instead of burdening the taxpayer.
(viii) In addition to the above the petitioner/victim may also be entitled to payment of actual compensatory or deterrent cost apart from actual costs of litigation calculated according to the applicable Rules. Compensatory costs may be awarded and the official responsible for illegal action may be personally burdened with the liability to pay exemplary or punitive costs in terms of the law declared by the Honourable Supreme Court.
55. It may now be considered that order should be passed applying the above legal principles to the facts of the present case. As observed earlier the detention of detenue Manzoor Mansoor in the police lockup at Police Station 'B' Section, Latifabad, was patently unlawful. No basis to cause a reasonable suspicion in the mind of Aijaz Ali Kaimkhani or any other police official as to his involvement in a cognizable offence has been shown. Though the aforesaid SHO has filed an affidavit, he has failed to place any material before the Court which could even remotely suggest that there was some basis for his suspecting that the detenue was involved in a penal offence. In view of the law declared by this Court in Muhammad Siddiq v. Province of Sindh (PLD 1992 Karachi 358) and by the Honourable Supreme Court in Province of Sindh v. Raeesa Farooq (1994 SCMR 1283), it was his duty to place the material upon which he had acted before the Court to satisfy the Court that such action was lawful. There can be no escape from the conclusion that the arrest and detention of the detenue was brought about in gross abuse of powers conferred by law and was at least malafide in law if not in fact. The fundamental right of the detenue guaranteed under the Article 9 and 14 of the Constitution were clearly violated."
11/- Dealing with the powers of this Court under Article 199, we may add that the jurisdiction of this Court is wider than the jurisdiction conferred by Section 491, Cr.P.C. If any reference is needed, the case of Muhammad Ajmal Khan v. Lt. Col. Muhammad Shafaat and others, reported in PLD 1976 Lahore 369 can be looked into. Similarly, in the case of Master Abdul Rasheed v. Sub-Martial Law Administrator, reported in PLD 1980 Lahore 356. A distinction has been drawn between punitive detention and preventive detention.
12/- In view of the aforesaid reasoning, findings and circumstances, we would order as under. The amount of Rs.40,000/-by way of monetary compensation is payable to the detenue, which may be deposited by the Govt. of Sindh within 15 days from the date of this order with the Additional Registrar of this Court, who may thereafter disburse the same to the detenue after due identification and verification. The provincial government may recover this amount from the S.H.O., who was posted at Police Station Kamber between 8.4.2012 to 12.4.2012 in accordance with the provisions of Sindh Police (Efficiency & Discipline) Rules, as the S.H.O. of Police Station Kamber is the officer concerned as he is solely and purely responsible for all the misdeeds and unlawful activities and actions that are being done at the police station, therefore, he cannot be absolved from any monetary responsibility that we have determined in this case. This compensation is only to the extent of four days i.e., from 8.4.2012 to 12.4.2012. The petitioner would be at liberty to initiate appropriate proceedings for malicious prosecution by filing a suit for malicious prosecution against the concerned officials who are responsible for his illegal confinement and his involvement in the malicious prosecution, if at all it is. The disciplinary and penal action shall be initiated by the government against the aforementioned S.H.O. and other officials who are involved including but not limited to respondents No.2 to 5.
13/- Copy of this order be communicated to the Secretary, Govt. of Sindh, Ministry of Finance, so also Secretary, Govt. of Sindh, Home Department, for compliance.
JUDGE
JUDGE