ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Criminal Misc. Appln. No. D- 111 of 2013

DATE	ORDER WITH SIGNATURE OF JUDGE

Present:

Mr. Justice Syed Muhammad Farooq Shah,

Mr. Justice Aftab Ahmed Gorar.

Date of hearing : 03.06.2013

For applicant : Mr. Nisar Ahmed Abro, Advocate.

For State : Mr. Naimatullah Bhurgri, State counsel.

O R D E R

SYED MUHAMMAD FAROOQ SHAH, J. Through the captioned criminal miscellaneous application, filed under Section 491, Cr.P.C, Mst. Saeeda stated that her two sons, namely, Shahzad Ali and Sagar Ali have wrongfully been detained by SHO, Police Station, Rehmatpur (respondent No.3) since 26.05.2013, without their involvement in any case. The applicant has prayed for the following relief:

(a) To issue Rule-Nisi for production of detainees, namely, Shahzad Ali and Sagar Ali (the sons of applicant) before this Court and after recording their statement, they may be set at liberty.

(b) To appoint any officer of this Court to pay surprise visit/conduct raid over P.S Rehmatpur, and its surrounding premises including police quarters, and any other place, subsequently pointed out by the applicant, in order to recover detainees; and to ascertain as to whether they have been detained illegally or otherwise and to get them released, f detained without any case/F.I.R.

2- Perusal of record transpires that on 29.05.2013, Mr. Bashir Ahmed Ansari P.A of this Court was appointed as raid Commissioner to pay surprise visit at Police Station, Rehmatpur. The raid commissioner, in his report dated 31.05.2013 stated that the alleged detenues were found detained at Police Station Rehmatpur without any case or FIR, lodged against them, therefore, as per order of this Court he directed the SHO to release the detenues. On 31.05.2013, the respondent No.3, SHO Police Station, Rehmatpur (Inspector Toufique Ahmed Sadhayo), in his reply, stated that one Saddiq Ali Arain filed an application, wherein he has complained that both detenues borrowed an amount of Rs.56,000/- from him, and on demand did not return, hence he kept the detainees in safe custody of lock-up therefore, illegal confinement of detainees at Police station has admitted by the SHO/respondent No.3.

3- Learned counsel for the applicant, inter alia, contended that admittedly on 30.05.2013 at evening time, as per directions of this Court, the raid Commissioner conducted raid at Police Station, Rehmatpur and found the detenues lodged in lock-up without any FIR/case, either registered under Section 154 Cr.P.C or in Station diary of the said Police Station. Learned counsel further submitted that the SHO Police Station, Rehmatpur (Respondent No.3) cannot, under the existing law, infringe or violate the fundamental rights as ordained by Constitution of Pakistan, 1973. Moreso, the SHO cannot put the detenues in lock-up for 4/5 days for settlement of alleged money transaction in between one Saddiq Ali and detenues and even otherwise after receiving the said application he did not incorporate it into a criminal case by lodging the FIR, therefore, wrongful detention of the detenues has fully been established. Learned counsel submitted that the respondent No.3 should be punished who played havoc and mischief by keeping the innocent citizen in wrongful confinement, he may be dealt with severely and exemplary cost in shape of compensation be imposed upon him. To support his contentions, learned counsel placed reliance on reported cases of Honourable Supreme Court, viz. Khan Muhammad v. SHO (1995 SCMR 1283) and Badar v. Azmat Bashir (2011 SCMR 1420).

4- On the other hand, learned State counsel submitted that the matter may be decided on the basis of material available on record.

5- We have considered the worthy contentions and perused the record. In the case of Badar (supra) the Honourable Supreme Court held as under:-

S. 491. Constitution of Pakistan, Art. 185(3). High Court while setting the detenu at liberty had imposed special costs of Rs.50,000/- upon a police Sub-Inspector and of Rs.25,000/- upon the police Inspector, vide impugned order. Detenu was recovered by the Bailiff of the court from a room of the police station, who had been arrested by the Sub-Inspector and kept under illegal detention for twenty days without having produced him before any court of law and also subjected him to physical torture, which fact was supported by his medical report. Sub-Inspector had later on handed the detenu over to the Inspector, Investigation incharge. Accused petitioners could not produce any piece of evidence before High Court showing the arrest of detenu being legal. Detenu himself had explained the entire incident regarding his detention, before High Court in the presence of both the petitioners, who could neither refute the statements of the detenu and the Bailiff, nor contradict the medical report. Impugned order being legal, just and apt to the facts and circumstances of the case was not open to any exception and the findings whereof did not call for any interference by Supreme Court. However, amount of costs imposed on the petitioners was slightly on higher side and the same was reduced to Rs.25,000 in case of the Sub-Inspector and Rs.10,000 in case of Inspector in the interests of Justice. Petitions were converted into appeals and partly allowed accordingly.

6- Illegal detention of detenues Shahzad Ali and Sagar Ali at police lock-up of Police Station Rehmatpur, Larkana, is an admitted fact, evident on record including report submitted by the Commissioner appointed by this Court. Even otherwise, there is no denial on the part of Inspector/SHO Toufique Ahmed Sadhayo of Police Station Rehmatpur (Respondent No.3). In his statement, the respondent No.3, has admitted that he put the detenues in safe custody after receiving the application from one Saddique Ali Arain, who made a request for return of his amount, which detenues had taken from him. Admittedly, detenues have been detained in wrongful custody by the police for a period of 4/5 days which was a gross violation of fundamental rights as guaranteed by the Constitution of Pakistan, 1973. Suffice it to say, that Police Officer had kept the innocent citizens in lock up of Police Station in unlawful and illegal manner and held two youngsters under unlawful detention for a considerable period of time without producing them before the Court of law and such high handedness and disregard of law could not and must not be condoned or tolerated. Law enforcement agencies should respect the law and rights guaranteed to the citizens under the Constitution. Admittedly, respondent No.3, being a police official took the law into his own hands and rather took away the liberty of two citizens without the process of law therefore, malicious act on the part of the police official cannot be brushed aside.

7- As far as, the complaint regarding recovery of amount is concerned, learned Counsel for the applicant has rightly contended that the respondent No.3 was having no legal right or authority to put the detenues in lock-up for recovery of money. If at all, it was a transaction of civil dispute in between detenues and applicant Saddique Ali Arain. The police officer/respondent No.3 abused his powers and process of law and should be held responsible in order to set an example for others. Where the police officer transgressed his powers and committed the offence of detaining the detenues in his illegal detention, transgression and misuse of powers of police officers cannot be left unattended which amounts a cognizable offence and it is high time to eradicate excesses and illegalities committed by the police.

8- In the above circumstances, Inspector General of Police, Sindh being Head of the department in the Provincial hierarchy is advised to adopt appropriate measures to reform his department by eradicating such high handedness and excess. Special cost of Rs.100,000 (One Lac) is imposed upon the Inspector Toufique Ahmed Sadhayo SHO Police Station, Rehmatpur Larkana, to be deposited within a period of 30 days from today, with the Additional Registrar of this Court. The recovered amount shall be paid to the detenues equally i.e. Rs.50,000 to each as a token of compensation for their illegal detention. Detenues may have to lodge FIR/complaint against incumbent/respondent No.3, if so advised.

The Criminal Miscellaneous application is disposed of in the manner and terms indicated above.

Judge