Friday, 20 September 2013

What to do if police detains someone wrongly?

PLJ 2009 Cr.C. (Lahore) 1027
Present: Hafiz Tariq Nasim, J.
IFTIKHAR ALI--Petitioner
versus
DISTRICT POLICE OFFICER, NANKANA SAHIB
and 2 others--Respondents
Crl. Misc. No. 1267-H of 2008, decided on 7.11.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 491 & 497--Habeas corpus petition--Minor student was detained by Police official--Bailiff was deputed--Detenu was recovered--Question of nomination in FIR--No doubt accused was nominated in FIR but the fact remains that he was detained by police in illegal confinement without recording his arrest in daily diary for six long days & detainee was not produced before any competent Court of law violating specific provisions of law--Detainee was aged 12 years, a student of school and was not a previous convict--Habeas petition was converted into bail petition--Bail was allowed. [P. 1030] A
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Habeas corpus petition--Bailiff was deputed--Detenue was recovered--Direction to bailiff for the medical examination of detenue--Medical report was sufficient proof of brutal torture--Of course father of a proclaimed offender--Not nominated in FIR--Not previous convict and police was not required in any other case--Validity--Detenue was found by bailiff in the illegal confinement of police without having any record of hukam nama talbi that detenue was illegally taken away from his house by two police officers, main reason behind the detaining of an old man was that his son was involved in some criminal cases who was absconder and the sole reason of detained father of proclaimed offender is to interrogate, to know whereabouts of his absconding son--Held: An innocent man cannot be subject to torture or cannot be confined illegally on the basis that he would give information of his relative or of any one for that sake who has committed an offence and is absconding from the police--If it did exist would be indirect contravention to fundamental rights of life and liberty and every citizen has a right to live peacefully and should not be deprived of his liberty unless he himself has committed an offence for which he deserves punishment--Further held: A person cannot be held liable for an offence his brother has committed and therefore, cannot be physically tortured expecting information for his relative who are or contravention to establish International law but is also ultra vires of the Constitution.
      [Pp. 1030 & 1031] B, C & E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Habeas corpus petition--Bailiff recovered the detain father of proclaimed offender--Gross violation of human rights--Inhuman act of torture--Habit of abusing of powers--Detained illegal custody--Compensation for his illegal detention and physical torture--Validity--Abrupt violation of not only fundamental right as warranted in constitution but is also a gross violation of human rights granted to every individual under the various International Treaties of United Nations--Police are truly at fault for torturing an innocent and helpless man and moreover for abusing their powers and true process of law, for which they should be held responsible not only by High Court but also authorities in order to set an example for other officers--Held: High Court set the detenue at liberty but with special costs which shall be recovered from the police officers who detained the detenue in illegal custody and shall be paid to detenue as a token of compensation for his illegal detention and physical torture he had to face during that period--Further held: Court of law cannot truly and correctly calculate the loss especially in monetary terms that detenue has had to suffer for being deprived of his lawful right of freedom and liberty and the loss he had to suffer being tortured inhumanly and feel that money cannot be equated with loss of even one day of freedom--High Court through this order hope to compensate the detenus as for as reasonably possible and further hope that unlawful practice is refrained in future.
      [Pp. 1031 & 1032] D, F, G & H
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Habeas corpus petition--An oldman and a minor student was detained by Police official and torturing mercilessly--Bailiff was deputed--Detenus were recovered--Direction to bailiff for medical examination of detenue who produced medical report which was a sufficient proof of brutal torture--Disciplinary action--Validity--High Court directed the I.G. Police to honor his statements and vows to the public by taking strict disciplinary action against concerned police officer under whose supervision the police was free to torture an innocent person--Disciplinary action against two police officers be initiated under the provisions of PEEDA, 2006.      [P. 1032] I
Ch. Azhar Siddique Cheema, Advocate for Petitioner.
Malik Nazar Abbas, DPG for Respondents.
Date of hearing: 7.11.2008.
Order
Through this habeas corpus petition the petitioner submitted that Respondent No. 2/SHO Police Station Khanqah Dogran, District Nanakana Sahib and Sajjad Abbas, ASI Police Station Khanqah Dogran, District Nanakana Sahib forcibly entered into the house of petitioner's uncle namely Nazir on 01.11.2008 mal-treated the ladies, took minor son of Nazir namely Aamir with them in addition to taking two cows as well as the ladies namely Mst. Bushra Bibi and Mst. Nargis with them.
2.  So far Mst. Bushra Bibi and Nargis are concerned both of them were released whereas Nazir an old man and Aamir a minor student is detained by the police official and they are torturing mercilessly to Nazir and as such a bailiff be deputed.
3.  Through order dated 6.11.2008 a bailiff was deputed to recover the detenus who reached the police station recovered both of them and produced them in the Court submitting a report contending that:--
"I took the daily diary in my possession, started search out the alleged detenus, the detenus were found in police lockup, I took the alleged detenus in my custody. On my inquiry detenu namely Aamir son of Nazir stated that he was arrested by Jahangir S.I. from his residence on 01.11.2008, confined in police lockup, he was not produced before any court of law.
      The other detenu namely Nazir son of Hakim took a stance that he visited the police station on 4.11.2008, he was detained by the police in police lockup illegally, did not produce him before any court he was made a subject of severe torture by the police. He further states that Mst. Nargis and Mst. Bushra Bibi were also taken away by the police and later on they were released. Said detenu Nazir also complained that two cows were forcibly taken away from him by the said two police officers and these were handed over to one Younis Kamboh who is a close relative of complainant of FIR No. 198/2007.
      The Moharrar namely Sohail Akhtar HC stated that alleged detenu Aamir is a nominated accused of FIR No. 454 dated 1.11.2008 registered at police station Khanqah Dogran, other detenu namely Nazir was brought in the police station for interrogation and it has been confirmed by the Moharrar that arrest of both the detenus were not made in the daily diary. Since the alleged detenus were arrested by the police but their arrest has not been made in daily diary therefore they took them into my custody and now producing before this Court."
4.  Today SHO/Inspector namely Muhammad Iqbal as well as Sub-Inspector Jahangir are present in Court and submits that one son of Nazir is a proclaimed offender and Aamir is also nominated in the FIR No. 454 dated 1.11.2008 and in view of this they raided the house of Nazir and only to ask about the whereabouts of proclaimed offender son of Nazir was taken to the police station, he was not tortured, he was not arrested however, at the time of raid of the bailiff the said Nazir was sitting in the police station and this habeas petition is filed just to pressurize the police with a view to keep themselves away from arresting the proclaimed offender. So far Aamir is concerned, he is named in the FIR, he was arrested but his arrest could not be recorded in the daily diary due to rush of work. Both the police officers categorically denied the allegation of torture to Nazir.
5.  After hearing both the parties at length I have directed to the bailiff for the medical examination of the detenu Nazir who has produced medical report prepared by Office of Surgeon Medico Legal Punjab, Lahore, which is a sufficient proof of brutal torture on Nazir an old man, of course father of a proclaimed offender. So far the question of Aamir's nomination in the FIR is concerned, no doubt his name is mentioned in the FIR but the fact remains that he was detained by the police in illegal confinement without recording his arrest in daily diary for six long days, he was not produced before any competent court of law violating the specific provisions of law, the said Aamir is aged 12-years, a student of school and according to police record he is not a previous convict hence keeping in view all these circumstances I allow him bail subject to his furnishing bail bonds in the sum of Rs. 10,000/- (rupees ten thousand only) with one surety in the like amount to the satisfaction of the learned trial Court/Ilaqa Magistrate, converting the habeas petition into bail petition.
6.  So far Nazir is concerned, it is admitted by both the police officers i.e. SHO Muhammad Iqbal as well as SI Jahangir that Nazir is not named in the FIR, he is not a previous convict, he is not required to police in respect of any other case but the fact remains that he was found by the bailiff of this Court in the illegal confinement of police without having any record of Hukam Nama Talbi or any arrest meaning thereby that Nazir was illegally taken away from his house by these two police officers, he was detained in the police station without any justification whatsoever only on the pretext that his one son is a proclaimed offender. It is also admitted on record that Nazir was made a subject of severe beating, which is reflected from the Medico Legal Report produced today by the bailiff.
7.  In the presence of both the police officers Nazir detenu explained the entire incident, when confronted with this, both the police officers present in Court could not controvert the detenu's contentions. The ladies of Nazir detenu's are also present in Court and explained in so many words the conduct of these two police officers.
8.  The main reason behind the detaining of Nazir an old man was that his son is involved in some criminal case, he is absconding, is escaping from the police and the sole reason of detaining father of proclaimed offender is to interrogate, to know whereabouts of his absconding son, whereas during detention the detenu Nazir was tortured mercilessly.
9.  The only reason behind such an inhuman act of torture to make the detenu to talk about his "absconding son's whereabouts".
10.  This inhuman act in my view is a clear and abrupt violation of not only fundamental right as warranted in the Constitution of Pakistan but is also a gross violation of the human rights granted to every individual under the various International Treaties of the United Nations.
11.  In my understanding an innocent man cannot be subject to torture or cannot be confined illegally on the basis that he would give information of his relative or of any one for that sake who has committed an offence and is absconding from the police. Any such law even if it did exist would be indirect contravention to the fundamental rights of life and liberty and every citizen has a right to live peacefully and should not be deprived of his liberty unless he himself has committed an offence for which he deserves punishment and for that too there is a procedure laid down in the Criminal Procedure Code and that is to be adopted and not otherwise. A person cannot be held liable for an offence his brother has committed and therefore, cannot be physically tortured expecting information for his relatives who are or may be criminal. This practice is not only in contravention to establish International Law but is also ultra vires to the Constitution of Pakistan.
12.  The whole blame can safely be put on the shoulders of the police officers/officials who are in the habit of abusing their powers. In my opinion, the Sub Inspector and the SHO/Inspector are truly at fault for torturing an innocent and helpless man and moreover for abusing their powers and the true process of law, for which they should be held responsible not only by this Court but also by their Authorities in order to set an example for other officers.
13.  The newspapers are often quoted with the Inspector General of Police's  statement  to  take  action  against  the concerned  SHO  of  a police station if anything goes wrong in that particular jurisdiction because the SHO is Incharge of the whole police station.
Thus after hearing both the parties at length and considering the seriousness of the matter particularly gross violation of human rights/fundamental right of life and liberty, I set the detenu Nazir at liberty but with special costs of Rs. 100,000/- which shall be recovered from Sub Inspector Jahangir who detained the detenu in illegal custody and Rs.50,000/- from Inspector/SHO Muhammad Iqbal of Police Station Khanqah Dogran, District Nankana Sahib and shall be paid to the detenu Nazir as a token of compensation for his illegal detention and physical torture he had to face during that period. It is to be clarified that in the present case SHO is burdened with costs only because it is his duty to ensure that his police station is free from power abusing officials and this punishment should serve as an example to all other police officers/officials who disregard their office and put a bad name to the police.
14.  It is observed that a Court of law cannot truly and correctly calculate the loss especially in monetary terms that the detenu has had to suffer for being deprived of his lawful right of freedom and liberty and the loss no had to suffer being tortured inhumanly and feel that money cannot be equated with loss of even one day of freedom, however, I through this order hope to compensate the detenus as far as reasonably possible and further hope that this unlawful practice is refrained in future.
15.  Office is directed to send a copy of this order to the District and Sessions Judge, Nankana Sahib who shall make all efforts for the recovery of costs from both i.e. Rs. 1,00,000/- from Jahangir Sub-Inspector and Rs.50,000/- from Muhammad Iqbal Inspector/SHO Police Station Khanqah Dogran, and to pay the same to the detenus. Learned District and Sessions Judge, shall also submit his report to the Deputy Registrar (Judicial) of this Court within two months.
16.  I also direct the Inspector General of Police Punjab to honor his statements and vows to the public by taking strict disciplinary action against Sub Inspector Jahangir and SHO/Inspector Muhammad Iqbal of Police Station Khanqah Dogran, District Nankana Sahib, under whose supervision the said Sub Inspector Jahangir was free to torture an innocent person. Disciplinary action against the said two police officers be initiated under the provisions of PEEDA 2006 and the result thereof be conveyed to the Deputy Registrar (Judicial) of this Court, within two months from today.
17.  Learned Assistant Advocate General, who is present in Court, shall ensure compliance of the Court's order. Disposed of accordingly.
(R.A.)      Petition disposed of.

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