Illegal Police Custody and Court’s Strong Action: A Case from Sialkot.
پولیس کی جانب سے غیر قانونی گرفتاری اور عدالت کا سخت نوٹس
کیس کا پس منظر:
عدالت نے تفصیلی حکم میں واضح کیا کہ:
قانونی نکات اور خلاف ورزیاں:
عدالتی حکم اور سزا:
اہم ہدایات:
نتیجہ:
Must read Judgement
P L D 2022 Lahore 224
Police Rules, 1934--- ----R. 25.55(3)---Police Order, 2002, R. 155(c)---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus---Case dairies---Maintenance---Misconduct---Detenu was recovered from police station and his arrest was not mentioned in Roznamcha (daily dairy) of the police station---Contention of authorities was that the detenu was arrested in investigation of a criminal case but no case dairy could be produced in support of such plea---Validity---Case diary was not personal property of investigating officer---On returning of investigating officer from investigation of case at police station, he under R. 25.54(3) of Police Rules, 1934, was to number and date each case diary mentioned at the back side of FIR available at police station in relevant FIR register---Station House Officer and investigating officer exceeded their powers and jurisdiction and committed gross misconduct which fell within the ambit of offence under S.155 (c) of Police Order, 2002---High Court directed police authorities to register FIR against the two officials---Constitutional petition was disposed of accordingly.
Police Rules, 1934--- ----R. 25.55(3)--- Investigation--- Case dairies--- Maintenance---Procedure---To curb illegal practice of police officials regarding arrest and production of accused before Area Magistrate, High Court issued directions:--
Following directions were issued by the High Court:--
i) Whenever, a person is arrested in any case, his arrest be incorporated forthwith in computerized as well as manual roznamcha with date and time;
ii) Similarly, when an accused is taken out from the police station for any purpose, a rapat should be written in this regard, vice versa on his return this practice should be adopted;
iii) To make the process of entry in roznamcha transparent, it is ordered that entries in manual roznamcha (register No. 2) be made through ball-point.
iv) Moreso, when the accused will be produced before the learned Area Magistrate for the physical or judicial remand, date and time of arrest must has been mentioned in the application for obtaining remand and in case of failure, learned Area Magistrate should refuse to entertain request of remand.
v) Police file/case diaries should be retained at police station as provided in Rule 25.55(3) of Police Rules, 1934 and whenever the investigating officer will proceed along with police file of case from police station for the purpose of investigation or any other purpose that facts should be incorporated in the roznamcha (register No. 2) and on return the same practice be also adopted, other than this, police file must be retained at police station.
ORDER
MUHAMMAD TARIQ NADEEM, J.---It is settled principle of nature that night is followed by dawn; autumn is a passage towards spring; severe humidity is always a prediction of rain; threshold of a Court is a ray of hope for the oppressed and depressed people. The doors of Courts are never closed for the justice seekers; wherein and whenever the same are closed and supremacy of law is ignored; that society could not persist on this planet.
- Qari Muhammad Atta Ullah petitioner has filed this petition under section 491, Cr.P.C for the recovery and production of his son namely Hassan Ali from the alleged illegal and improper custody of Station House Officer Police Station Naikapura, District Sialkot through a bailiff of this Court. It is alleged that respondent No. 2 along with some police officials entered in the house of the petitioner on 22.08.2021 at 09.00 p.m. and forcibly took his son Hassan Ali with him, in his official vehicle (Dala) without any rhyme and reason. The petitioner along with other respectables of the area visited the Police Station Neikapura and inquired about the guilt of the detenu but the above said respondent did not tell anything and simply stated that the detenu has been apprehended under some suspicion and will be released within 1/2 days. It has further been narrated in this petition that after two days, when the petitioner again approached respondent No. 2 for the release of detenu, he demanded illegal gratification of Rs. 2,00,000/-, which the petitioner could not pay due to financial constraint. The petitioner submitted that his son was tortured severely on 28.08.2021. Lastly, vociferously submitted that his son is neither involved nor required in any criminal case, therefore, a bailiff of this Court be deputed for his recovery and production.
(e) All admission to and releases from the cattle pound with the amounts of fines realised.
(f) The hour of receipt and despatch of all communications, property, cash, etc., giving reference to the number in the correspondence register. Note. - The word ''communications'' shall be taken to include the reports required by Police Rule 25.57(2)(ii) and Police Rule 27.1(1)(ii), to be sent to Panchayats.
(g) Information of the commission of non-cognizable offences (rule 24.3) including reports of enmities likely to lead to a breach of the peace (rule 23.32); visits of chaukidars to police stations [rule 21.3(4)] and demands by the police of one jurisdiction for assistance in extradition cases from the police of another jurisdiction [rule 26.10(7)]
(h) All arrivals at, and dispatches from, the police station of persons in custody, and all admissions to, and removals from, the police station lock-ups, whether temporary or otherwise, the exact hour being given in every case.
(i) The hour and date of receipt and (separately) or service or execution of each process; and hour and date of return made to such process.
(j) The report regarding property in the store-room required by rules 22.15 and 22.18(2).
(k) The report regarding excess of expenditure over the permanent advance as re-quired by rule 22.71.
(l) The entrance of persons, by permission, into a tahsil treasury after office hours.
(m) The deposit in, or removal from, the post office safe in the Police Station of any article whatsoever the exact hour being given in every case. Note. - Every such entry shall contain detail of the article deposited or removed and shall be signed by the Sub or Branch Postmaster effecting the deposit or removal.
(n) A reference to every information relating to the commission of a cognizable offence, and action is taken under section 157, Code of Criminal Procedure, the number and date of the first information report submitted.
- As discussed earlier, neither any rapat has been incorporated in register No. 2 nor any number of FIR was disclosed by Zulqarnain (Moharrar) of police station to the bailiff but he simply stated that detenu has been arrested on 31.08.2021 by the police for investigation in case of stolen motorcycles and produced no record about the above said situation. It is pertinent to mention here that if the Hassan Ali (detenu) was arrested in case FIR No. 237/2021 dated 17.5.2021 under section 381-A, P.P.C. registered with Police Station Naikapura then why the bailiff was not informed about the FIR number and similarly why the police file of the said case was not handed over to the bailiff, this fact shows that the SHO, Ahmad Bilal, ASI/I.O and Zulqarnain (Moharrar) of P.S. Naikapura District Sialkot with their active connivance has fabricated the record subsequently. The police file/case diary is not a personal property of the investigating officer as per law and that should be retained at the police station except when the investigating officer proceeds for the purpose of investigation. Rules 25.53, 25.54 and 25.55 of Police Rules, 1934 deals with the case diary which are also reproduced as under:-
25.53. Case diaries.---(1) Section 172(i), Code of Criminal Procedure requires that a case diary shall be maintained and submitted daily during an investigation by the investigating officer. In such diary shall be recorded, concisely and clearly, the steps taken by the police, the circumstances ascertained through the investigation and the other information required by Section 172(i), Code of Criminal Procedure. (2) Case diaries shall be as brief as possible; shall not be swollen with lengthy explanations and theories, and shall be written either in English or in simple Urdu. Only such incidents of the investigation shall be included as have a bearing on the case. (3) Detailed lists of stolen property, or of property seized in the course of a search, shall 716 Punjab Police Rules, 1934 Volume 3, CHAPTER 25 1. Rule 25.50 not printed in 1977 Edition of Punjab Police Rules and all subsequent Rules in chpater 25 renumbered accordingly. be entered in the first case diary submitted after the facts relating to such property were reported to, or discovered by, the investigating officer. (4) The fact that copies of the record prepared under the provisions of section 165 or 166, Code of Criminal Procedure, have been sent to the nearest Magistrate empowered to take cognizance of the offence shall also be noted.
25.54. Record of case diaries.---(1) Case diaries shall ordinarily be submitted in Form 25.54(1) and each sheet shall be numbered and stamped with the station stamp. Two or more copies, as may be ordered, shall be made by the carbon copying process by the officer conducting the investigation. The officer writing a case diary shall enter in such diary a list of the statements, recorded under section 161, Criminal Procedure Code, which are attached to such diary and the number of pages of which each such statement consists. (2) They shall be sent from the scene of investigation to the police station without delay. (3) On arrival at the police station the number and date of each case diary shall be recorded on the reverse of the police station copy of the first information report, and the date and hour of receipt shall be entered on each copy of the diary. (4) The original shall be dispatched with as little delay as possible to the inspector or other superior officer as may be or copies, after the time of dispatch has been entered in the space provided in the form on both the original and the copy or copies. Orders for the disposal and record of case diaries in the headquarters office are contained in Rule 11.70. Also see Rule 27.38. (5) A copy of every case diary shall be retained at the police station, a separate file being maintained for each case. Such files shall be destroyed in accordance with the periods fixed in sub-rule 27.39(5). (6) Copies of all orders received at a police station in connection with case diaries and the replies thereto shall be made on blank sheets of paper and shall be attached to the case diary to which they refer.
25.55. Files of case diaries.---(1) When a case is sent for trial the police station file of case diaries shall be forwarded with the chalan to the magistrate, and on completing of the trial shall be returned to the police station for record. (2) Such files when received back at the police station also files of other cases in which the final report has been submitted, shall be filed at the police station in an annual bundle A in accordance with the serial number of their first information report. (3) Copies of case diaries in pending cases shall be kept in files at the police station in a separate bundle B in accordance with the numbers of their first information reports. (4) A list shall be kept in each bundle A and B of all the files contained therein, merely quoting the numbers of their first information reports. Should it be necessary to remove a file from the bundle the fact will be noted in the list.
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After going through the supra mentioned provisions of law, it is crystal clear that the police is duty bound to incorporate the arrest of the accused in any case forthwith in register No. 2 with date and time. Similarly, investigating officer is also duty bound to incorporate the rapat regarding his departure about obtaining remand, investigation or any other purpose from the police station and same practice will be adopted after his returned and he will sign against rappat number. A person will be deemed to be arrested in a case if his arrest is incorporated in register No. 2, otherwise, it will be construed that he is not arrested.
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Insofar as the police file/ case diary is concerned that is not personal property of the investigating officer. According to Rule 25.54 (3) of the Police Rules, 1934, on returning of investigating officer from the investigation of the case at police station the number and date of each case diary shall be mentioned on the back side of FIR available at the police station in the relevant FIR register.
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Likewise, by virtue of Rule 25.54 ibid a copy of case diary shall be retained at police station, a separate file shall also be maintained by each case, which file shall be destroyed in accordance with law within the stipulated period fixed in Rule 27.39 (5) and according to Rule 25.55 (3) copies of case diaries in pending cases shall be kept in files at the police station in separate bundle (B) in accordance with law with the number of their information reports. In the light of supra mentioned facts, I have reached at irresistible conclusion that SHO of Police Station Naikapura, Ahmad Bilal, ASI/I.O. and Zulqarnain (Moharrar) have exceeded their powers and jurisdiction and committed gross misconduct which clearly fall within the ambit of offence under section 155(c) of Police Order, 2002. DPO, Sialkot is directed to get lodge an FIR under the said provision of law against them, under intimation to Deputy Registrar (Judicial) of this Court.
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This Court is also conscious of the fact that after the amendment in Rules 22.3 and 22.4 of Police Rules, 1934, computerized entries are made in police station and manual roznamcha is not properly maintained. It has already been directed in case reported as Asmat Parveen v. The State (PLD 2021 Lahore 105) by this Court that manual roznamcha shall also be maintained as per previous routine in accordance with law. I have also observed that in manual roznamcha (register No. 2) entries are made through led pencil, so that the entries be rubbed and changed.
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This Court has also observed in some cases that when a bailiff reached at a police station and arrest of alleged detenu was not entered in roznamcha, the police obtained judicial remand from the court of learned Area Magistrate for the purpose of identification parade.
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To curb down the illegal practice of police officials qua the arrest and production of accused before learned Area Magistrate, the Court would like to issue following directions:-
i) Whenever, a person is arrested in any case, his arrest be incorporated forthwith in computerized as well as manual roznamcha with date and time;
ii) Similarly, when an accused is taken out from the police station for any purpose, a rapat should be written in this regard, vice versa on his return this practice should be adopted;
iii) To make the process of entry in roznamcha transparent, it is ordered that entries in manual roznamcha (register No. 2) be made through ball-point.
iv) More so, when the accused will be produced before the learned Area Magistrate for the physical or judicial remand, date and time of arrest must has been mentioned in the application for obtaining remand and in case of failure, learned Area Magistrate should refuse to entertain request of remand.
v) Police file/ case diaries should be retained at police station as provided in Rule 25.55 (3) of Police Rules, 1934 and whenever the investigating officer will proceed along with police file of case from police station for the purpose of investigation or any other purpose that facts should be incorporated in the roznamcha (register No. 2) and on return the same practice be also adopted, other than this, police file must be retained at police station.
Any defiance of supra mentioned directions, would amount to contempt of court and delinquent official/officers will also be proceedable under section 155-C of Police Order, 2002.
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All the learned Sessions and Special Judges of the province are duty bound to check register No. 2 in the light of Rule 167 of Police Order, 2002.
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Office is directed to send a copy of this Order to all learned Sessions and Special Judges, I.G. (Punjab) Police, and all the DPOs of the province, for strict adherence of the supra mentioned directions.
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With the observations made above, this petition is disposed of.