PLJ 2009 Cr.C. (Lahore ) 368
Present: Hafiz Tariq Shamim, J.
AZMAT BASHIR--Petitioner
versus
STATION HOUSE OFFICER, POLICE STATION CHUHANG, DISTRICT LAHORE and another--Respondents
Crl. Misc. No. 955-H of 2008, decided on 3.9.2008.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Illegal detention--Innocent man cannot be subject to torture or cannot be confined illegally--Fundamental right 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 on offence for which he deserves punishment--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--Petition accepted. [P. 370] A
Illegal Detention--
----Compensation for--A Court of law cannot truly and correctly calculate the loss especially in monetary terms that the 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.
[P. 271] B
Ch. Muhammad Aslam, Advocate for Petitioner.
Mr. Tahir Abbas, Assistant Prosecutor General for Respondents.
Date of hearing: 3.9.2008.
Order
This habeas corpus petition has been filed by the real brother of the detenu Mazhar Bashir who was taken into custody by Badar Munir Sub-Inspector Police Station CIA Nawan Kot, Lahore from Okara.
2. Petitioner when approached this Court, the bailiff was deputed through order dated 29.08.2008 for the recovery of the detenu.
3. The bailiff accordingly went to the police station, took the daily diary into his possession and then recovered the detenu, who was found in a room of the Police Station Chuhng, district Lahore on 29.08.2008 at about 2.45 p.m.
4. The bailiff submitted his report on 30.08.2008 and produced the detenu in the Court contending that on his inquiry, it was found that the detenu was arrested by Badar Munir SI of Police Station CIA Nawan Kot, Lahore, from his residence at Okara on 09.08.2008 at 11.00 a.m. detained him in illegal confinement till 24.08.2008 and later on handed over to Rana Muhammad Aslam Inspector/Investigation Incharge Chuhng. It was also submitted by the bailiff that according to the record there was no proof of any arrest of the detenu, he was not produced before any Court of law during the entire period of his detention right from 09.08.2008 to 29.08.2008 till 2.45 p.m. The detenu also complained before the bailiff that he was given physical torture and he showed torture marks to the bailiff too. The bailiff also examined the register of FIR and found that the detenu was not nominated accused in any FIR and the arrest of the detenu was not made in the daily diary too. When the detenu was produced in the Court on 30.08.2008 Rana Muhammad Aslam Incharge Investigation Police Station Chuhng was also present and in his presence the detenu as well as the bailiff of the Court reiterated the stance mentioned above vigorously, whereas Rana Muhammad Aslam submitted that he first saw the detenu in his police station on 25.08.2008 when he left for Sialkot and he came back to the police station on 29.08.2008 when he again found the detenu there but not aware about the purpose of his presence.
5. As the detenu as well as the bailiff of this Court reported that the detenu was made a subject of physical torture, bailiff was directed to get the detenu medically examined and submit the medical report. Badar Munir SI Respondent No. 2 was also directed to appear in this Court on 03.09.2008. Today Badar Munir SI and Rana Muhammad Aslam Inspector/Incharge Investigation are also present, report of the medical examination is submitted which confirms the physical torture given to the detenu. In the presence of both police officers, the detenu explained the entire incident right from taking him into custody by SI Badar Munir from Okara to his recovery by the bailiff of this Court, submits that he was physically tortured without any justification and further submits that throughout his life he was not involved in any criminal case and despite his innocence he was illegally detained by the police officers for 20 long days. When confronted with this, both the police officers could not controvert the detenus contentions.
6. The main reason behind the detaining of Mazhar Bashir was that his two brothers are involved in some criminal case, one of the two brothers of the detenu is under arrest, while the whereabouts of the other is not known and he is escaping from the police and the sole reason of detaining Mazhar Bashir is to interrogate to know whereabouts of his absconding brother and that he was first taken under detention in Police Station CIA Nawan Kot, Lahore, by Badar Munir SI where he was tortured and when Badar Munir handed over the detenu to Rana Muhammad Aslam, Inspector/Investigation Incharge of Chuhng Police Station where the detenu was again tortured mercilessly.
7. Only reason behind such an inhuman act of torture was to make the detenu "talk about his absconding brother's whereabouts".
8. 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.
9. 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 established International Law but is also ultra vires to the Constitution of Pakistan.
10. After hearing both the parties at length and considering the seriousness of the matter and to take an initiative to halt this gross violation of human rights as well as fundamental right of life and liberty I take this opportunity to set the detenu at liberty but with a special costs of Rs. 50,000/- which shall be recovered from Badar Munir SI, who detained the detenu for 15 long days in illegal custody and Rs. 25,000/- from Inspector Rana Muhammad Aslam who detained the detenu for 5 days, to be paid to the detenu as a token of compensation for his illegal detention he had to face in the past 20 days. Even though 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 he 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 precedent hope to compensate the detenu as far as reasonably possible and further hope that this unlawful practice is refrained in future.
11. In addition to this, it shall be necessary to bring into the notice of the Inspector General of Police Punjab the conduct of his subordinates who virtually became the source of bad naming the entire police institution. In the attending circumstances, the Inspector General of Police Punjab shall proceed against the Inspector Rana Muhammad Aslam of Police Station Chuhng as well as Badar Munir SI CIA, Nawan Kot, Lahore, strictly in accordance with the provisions of PEDA, 2006 within a period of two months and the outcome of proceedings be conveyed to the Deputy Registrar (Judicial) of this Court.
12. Office is directed to send a copy of this order to the District and Sessions Judge, Lahore, who shall make all efforts for the recovery of costs from both i.e. Rs. 50,000/- from Badar Munir SI and Rs. 25,000/- from Rana Muhammad Aslam Inspector and to pay the same to the detenu. Learned District and Sessions Judge shall also submit his report to the Deputy Registrar (Judicial) of this Court within two months. Disposed of.
(M.A.K.Z.) Order accordingly.
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