PLJ 2022 Cr.C. 670
Criminal Procedure Code, 1898 (V of 1898)--
----S. 491--Habeous corpus petiton--Court passed a direction in the name of Respondent No. 3 to produce the alleged detenu--Complainant got recorded his supplementary statement--Supplementary statement complainant has not described any source qua the involvement of the alleged detenu in this case--There is no case diary with respect to the production of alleged detenu before the Court of Duty Magistrate for obtaining physical remand and subsequently confinement in police lock up--That investigation officer has no power to get drafted the case diaries from his subordinates--There are two Sections which deal with remand of an accused to custody explicitly Sections 167 and 344--While granting the physical custody to police the Magistrate shall record his justification for granting remand--If the complainant had identified him at the time of occurrence why he had not nominated him in the FIR. It has been well settled by now that mere registration of FIR is not necessary for the arrest of accused until and unless some sufficient incriminating material is available against him--Magistrate who passed the order for the physical remand of the alleged detenu is declared to be without lawful authority and the same is hereby set aside--Complainant has a strong suspicion that the petitioner is involved in the occurrence has no legal sanctity--There is no provision in the Code of Criminal Procedure, 1898 with respect to supplementary statement--Investigating officer SI has committed the offence under rule 155-C of Police Order, 2002, therefore, it is ordered that he be proceeded accordingly--Petition disposed of.
[Pp. 680, 681, 682 & 684] A, B, C, D, & E
Mian Intizar Hussain Mahar, Advocate for Petitioner.
Mr. Sultan Asghar Chattha, DPG.
Date of hearing: 9.11.2021.
PLJ 2022 Cr.C. 670
[Lahore High Court, Lahore]
NAZIR AHMAD--Petitioner
versus
CCPO, LAHORE, etc.--Respondents
Crl. Misc. No. 68909-H of 2021, decided on 9.11.2021.
Order
Through this petition filed under Section 491, Cr.P.C. the petitioner sought recovery of detenu namely Muhammad Nadeem who is real son of the petitioner aged about 17 years from illegal and unlawful custody of Respondent Nos. 2 to 5, as well as, his production before this Court for setting him at liberty.
2. On 04.11.2021 this Court passed a direction in the name of Respondent No. 3 to produce the alleged detenu Muhammad Nadeem before this Court on 08.11.2021. In compliance with supra mentioned Order Mian Shafaqat, Inspector and Mehmood Mustafa, SI/o/c of Police Station Sadar Division, Lahore have entered appearance. Learned Law Officer also submitted a report on behalf of Deputy Superintendent of Police Organized Crime Sadar Division, Lahore which depicts that investigation of case FIR No. 3353/2021 dated 15.08.2021 for offence under Section 392, PPC Police Station Raiwind City, Lahore has been transferred vide Order No. 7723-DSP/L dated 18.10.2021 and the investigation of this case has been entrusted to Mehmood Mustafa, SI/o/c Sadar Division Lahore who perused the police file and inquired from the complainant about this case. Complainant got recorded his supplementary statement against Muhammad Nadeem son of Nazir Ahmad Caste Muslim Sheikh r/o Rasool Pura Johar Town, Lahore. The report further reveals that alleged detenu Muhammad Nadeem was arrested on 06.11.2021 and his physical remand was obtained on 07.11.2021 till 08.11.2021 and the learned Duty Magistrate Section 30, District Courts, Lahore directed the investigating officer to produce the accused before the Court on 09.11.2021.
3. It is pertinent to mention here that Mian Shafaqat, Inspector/SHO and Mehmood Mustafa, SI did not produce the alleged detenu Muhammad Nadeem before this Court. They were directed to produce the register roznamcha of police station before this Court and the same was produced, subsequently, at 04.00 p.m. on 08.11.2021. After perusing the register roznamcha the same was returned to the police officials in attendance. Thereafter, the SHO concerned was directed to produce the alleged detenu before this Court on 09.11.2021. In compliance with this Court’s Order dated 08.11.2021 the alleged detenu Muhammad Nadeem was produced by the above mentioned SHO and Mehmood Mustafa, SI/o/c.
4. After going through the record it transpired that in supplementary statement complainant has not described any source qua the involvement of the alleged detenu in this case rather it has been mentioned that the complainant has come to know through reliable and different sources that the alleged detenu is involved in this case and he has strong suspicion that he is involved in the occurrence. Otherwise there is no cogent and convincing evidentiary material is available against the alleged detenu on file.
5. There is another intriguing aspect of this case which is after going through the police file, it divulged that there is no date mentioned in any case diary when the alleged detenu was arrested by Mehmood Mustafa, SI/o/c Sadar Division, Lahore, however, case diary No. 06 without any date depicts that the alleged detenu was arrested by him, who will be produced before the Court of competent jurisdiction and his physical remand will be obtained. It is also noteworthy that there is no case diary with respect to the production of alleged detenu before the Court of learned Duty Magistrate for obtaining physical remand and subsequently confinement in police lock up in the light of order dated 07.11.2021 passed by learned Duty Magistrate.
6. On Court’s query Mehmood Mustafa, SI/o/c CIA Sadar Division, Lahore ensured the Court that the case diaries have been written by his hand but when he was discuss in his hand directed to give the specimen of his writing he apologized and submitted his affidavit “Mark-A” which was duly sworn by him before the Court on 08.11.2021. According to the contents of affidavit “Mark-A”, he submitted that he got written the case diary dated 06.11.2021 qua the arrest of Muhammad Nadeem (alleged detenu) to his reader orally who could not mention the date in the case diary mistakenly and for this negligence he is seeking pardon from this Court. I have observed that apparently the detenu Muhammad Nadeem was illegally confined in police station Sadar Division, Lahore and after the issuance of this Court’s Order dated 04.11.2021 the alleged detenu was falsely implicated in op-cit case while recording a vague supplementary statement of the complainant in ante-date, i.e. 03.11.2021.
Section 172, Cr.P.C. deals with case diaries which is hereby reproduced for facilitation:
172. Diary of proceedings in investigation.
(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them, to refresh his memory, if the Court, uses them for the purpose of contradicting such police officer, the provisions of the Evidence Act, 1872, Section 161 or Section 145, as the case may be, shall apply.
To further understand the law on the case diaries of police, I deem it appropriate to refer relevant rules on the subject. Police Rules, 1934, a detailed procedure has been described with respect to case diary. The relevant rules are hereby mentioned as under:
25.1. Powers to investigate.--(1) An officer in charge of a police station is empowered by Section 156, Criminal Procedure Code, to investigate any cognizable offence which occurs within the limits of his jurisdiction. (2) He is also empowered under Section 157(1), Criminal procedure Code, to depute a subordinate to proceed to the spot to investigate the facts and circumstances of the case, and if necessary, to take measures for the discovery and arrest of the offenders. Any police officer may be so deputed under this section, but where a police officer under the rank of assistant sub-inspector is deputed the investigation shall invariably be taken up and completed by the officer in charge of the police station or an assistant sub-inspector at the first opportunity. (3) An officer in charge of Police Station shall also render assistance whenever required to all officers of the Criminal Investigation Department working within his jurisdiction.
Rule 25.2 Powers of investigating officer.--(1) The powers and privileges of a police officer making an investigation are detailed in Sections 160 to 175, Criminal Procedure Code. An officer so making an investigation shall invariably issue an order in writing in Form 25.2(1) to any person summoned to attend such investigation and shall endorse on the copy of the order retained by the person so summoned the date and time of his arrival at, and the date and time of his departure from, the place to which he is summoned. The duplicate of the order shall be attached to the case diary. (2) No avoidable trouble shall be given to any person from whom enquiries are made and no person shall be unnecessarily detained. (3) It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person
25.11. Investigation in non-cognizable cases.--(1) No police officer shall investigate a non-cognizable offence unless ordered to do so by a competent magistrate under Sections 196-B or 202, Criminal Procedure Code. (2) When an investigation in a non-cognizable case is thus ordered and is taken up by the police under Section 155(3), Criminal Procedure Code, it must be carried through in the same manner as if the offence were cognizable, except that no arrest shall be made without a warrant. In every such case a police officer making an investigation shall day by day enter his proceedings in a case diary and submit them daily as prescribed for cognizable cases in Police Rule 25.53. Case diaries shall be submitted through the gazetted officer concerned to the Court which has ordered investigation. No copies shall be prepared or kept by the police. (3) The High Court has ordered that only serious cases, and cases in which there are special reasons to do so, shall be referred to the police under Section 202, Criminal Procedure Code (Rule 4, Chapter I-B of Rules and Orders of the High Court of Judicature at Lahore, Volume III-1931). Superintendents of Police shall decline to accept for action references in which provisions of Section 202, Criminal procedure Code, itself, and the instructions of the High Court referred to above have not been strictly complied with.
25.12. Orders in writing.--All orders in writing made in a case, i.e. order to arrest, to search and to summon, etc., shall be attached to the case diaries, or their absence shall be satisfactorily accounted for.
25.51. Recognizances from witnesses.--(1) If the facts disclosed by the investigation indicate the commission of a cognizable offence and the person who appears to be guilty of such offence is arrested, the investigating officer shall, when he has completed the investigation, take recognizances from the witnesses as provided by law.
(2) The charge-sheet and its preparation and submission are dealt with in Chapter XXVII. To facilitate compliance with Rule 27.1(4) investigating officers shall, when possible, intimate to the prosecuting inspector some days in advance the date when the chalan and witnesses will reach headquarters
Rules 25.53, 25.54 and 25.55 of Police Rules, 1934 also 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 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 completion 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
After going through the supra mentioned provisions of law, it is crystal clear that investigation officer has no power to get drafted the case diaries from his subordinates. Similarly, it amounts to delegate his power to someone else which is not a mandate of law. Mehmood Mustafa SI/o/c has not described any reason due to which he was incapable to write down the case diary himself. After going through the police file it manifests that the supplementary statement of complainant as well as case-diaries No. 3 to 6 are of same hand writing and in the light of admission in sworn affidavit Mark-A of Mehmood Mustafa, SI/o/c are not recorded by his own hand. According to case diary No. 02 dated 21.10.2021 investigation of this case was entrusted to one Mian Shafaqat Ali DSP/O/C Sadar Division Lahore on 18.10.2021 who onward directed Mehmood Mustafa, SI to investigate the case under his supervision. Mian Shafaqat Ali DSP/O/C and Mehmood Mustafa, SI/OC have exceeded their jurisdiction and violated the relevant provisions of law, therefore, they shall be proceeded in accordance with law.
7. This Court has also observed that the learned Duty Magistrate Section 30, District Courts, Lahore has granted physical remand of alleged detenu Muhammad Nadeem in blindfold manner without applying his independent judicial mind. Order dated 07.11.2021 passed by learned Duty Judicial Magistrate Section 30, District Courts, Lahore for granting physical remand of the accused/ detenu Muhammad Nadeem is hereby reproduced infra for assistance:
“I.O. has requested for physical remand, as investigation is to be conducted in the subject case and recovery is to be made on the investigation of the subject case, two days physical remand is granted. The accused be produced before the Court on 09.11.2021. Copy of this order be sent to the Worthy Sessions Judge concerned, for information and record please. ”
8. I have also considered the contentions of the learned counsel for the petitioner as well as learned Deputy Prosecutor General carefully. In the Code of Criminal Procedure, 1898, there are two Sections which deal with remand of an accused to custody explicitly Sections 167 and 344. Section 167, Cr,P.C. is also relevant which is hereby reproduced as under:
“167. Procedure when investigation cannot be completed in twenty-four hours:
(1)investigation cannot be completed within the period of twenty-four hours fixed by Section 61, and there are grounds for believing that the accusation or information is well founded, the officer incharge of the police-station or the police-officer making the investigation if he is not below the rank of the sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under, this section may, whether he has or has no jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has no jurisdiction to try the case or [send] it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that no Magistrate of the Third Class, and no Magistrate of the Second Class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police.
(3) A Magistrate authorizing under this section detention in the custody of the police shall record his reasons for so doing.
[(4) The Magistrate, giving such order shall forward copy of his order, with his reasons for making it, to the Sessions Judge].
[(5) Notwithstanding anything contained in Sections 60 and 61 or hereinbefore to the contrary, where the accused forwarded under sub-section (2) is a female, the Magistrate shall not except--in the cases involving Qatl or dacoity supported by reasons to be recorded in writing, authorise-the detention of the accused in police custody, and the police officer making an investigation shall interrogate the accused referred to in sub-section (1) in the prison in the presence of an officer of jail and a female police officer.
(6) The officer incharge of the prison shall make appropriate arrangements the admission of the investigating police officer into the prison for the purpose of interrogating the accused.
(7) If for the purpose of investigation, it is necessary that the accused referred to in sub-section (1) be taken out of the prison, the officer incharge of the police station or the police officer making investigation, not below the rank of sub-inspector, shall apply to the Magistrate in that behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of accused out of the prison in the company of a female police officer appointed by the Magistrate:
Provided that the accused shall not be kept out of the prison while in the custody of the police between sunset and sunrise].”
The former section deals with grant of remand to police custody and the latter deals with grant of remand to judicial custody. Section 167, Cr.P.C. describes that if investigation is not completed within 24 hours, the period fixed in Section 61, Cr.P.C., the S.H.O. shall forthwith remit a copy of the entries in the case diary to the nearest Magistrate and "shall at the same time forward the accused to such Magistrate". It is noteworthy that this section is coincide with Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 which is hereby reproduced as infra:
“[10A. For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.]”
According to Section 167(3), Cr.P.C. while granting the physical custody to police the Magistrate shall record his justification for granting remand whereas in the case in hand neither the contention of accused has been mentioned nor any plausible reasoning has been given by him for granting physical remand. To understand the difference between Section 167, Cr.P.C. and Section 344, Cr.P.C., it would be relevant to have a glance over Section 344, Cr.P.C. which is mentioned below:
“344. Power to postpone or adjourn proceedings: If, from the absence of a witness, or any other reasonable cause, it becomes necessary-or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefore, from time to time, postpone or adjourn the same on such terms as it thinks-fit, for such time as it considers reasonable and may by a warrant remand the accused if in custody:
Remand: Provided no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.
(2) Every order made under this section by a Court other than a High Court shall be in writing signed by the presiding Judge or Magistrate.
Explanation. Reasonable cause for remand: If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.”
I am mindful that article 4 and 9 also deals with the life and liberty of a person which are also relevant and reproduced hereunder for ready reference:
“4. Right of individuals to be dealt with in accordance with law, etc.
(1) To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Wherever he may be, and of every other person for the time being within Pakistan.
(2) In particular--
(a) no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;
(b) no person shall be prevented from or be hindered in doing that which is not prohibited by law; and
(c) no person shall be compelled to do that which the law does not required him to do.”
“9. Security of person :
No person shall be deprived of life or liberty save in accordance with law.”
10. I have already set aside the remand granting order passed by the learned Duty Magistrate in preceding para of this Order. I convert this application filed under Section 491, Cr.P.C. into Section 497, Cr.P.C. in the light of Rule 3 Part-F, Chapter 4, High Court Rule and Orders Volume 5 which is hereby reproduced as under for ready reference:
“If the application for an Order under clause (a) or (b) of sub-section (1) of the section alleges that a person is confined under such circumstances that the confinement amounts to an offence, the Court may, at the time of issuing a rule nisi, also issue a search warrant, and the person to whom the warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately brought before the Court, which shall make such order as in the circumstances of the case may seem to be proper.”
11. After visiting archive of judicial pronouncements, I found so many case laws on the subject in hand wherein the petition under Section 491, Cr.P.C. was converted into petition under Section 497, Cr.P.C. Some of the judicial verdicts are cited for ready reference Saeed Ahmad vs. Station House Officer Police Station Saddar, Sangla Hill (2013 P.Cr.L.J. 1240), Iftikhar Ali vs. District Police Officer, Nankana Sahib and two others (2009 YLR 1971), Ishrat alias Shaista vs. Station House Officer (2012 MLD 507), Abid Ali vs. Safdar Gujjar, SHO and another (2005 YKR 1554), Muhammad Siddique vs. Station House Officer, P.S. Sadar, Pakpattan (2010 YLR 2611), Arshad Aziz vs. SHO (2009 YLR 1055), Noor Muhammad vs. The State (1999 MLD 1986), Mst. Miran Mai vs. Station House Officer, CIA, Multan (PLD 2001 Lahore 459), Muhammad Asghar vs. SHO and others (2002 YLR 172), Rai Ghulam Abbas vs. SHO (2002 YLR 170), Mrs. Inam ul Haq vs. Director Anti-Corruption, Lahore and another (1998 P.Cr.L.J. 1117), Sharman Bibi vs. Muhammad Latif and four others (1996 P.Cr.L.J. 1720), Farzand Ali Shah vs. SHO of Police Station City, Muzaffargarh (1995 P.Cr.L.J. 1076).
“On the basis of such conclusions it is to be observed that P.W. Naveed Anwar Naveed had not supported the prosecution version contained in F.I.R. Exh.P.0 nor any of the eye-witnesses particularly P.W. Matloob Ahmad Waseem supported the prosecution in this behalf though he was present with P.W. Naveed Anwar Naveed when he got recorded F.I.R. as per the contents of its footnote, which has been reproduced hereinabove. Undoubtedly they gave evidence as per the case set up by the complainant in the supplementary statement Exh.D/B. As it has been observed hereinabove that the value of this document is not more than a statement of a witness under Section 161, Cr.P.C. and object of recording of such statement is nothing but to use it for the purpose of proving contradictions between the statement of the witness given by him in the Court and the previous statement as per the provisions of Section 162, Cr.P.C. However, in view of the facts and circumstances of the instant case the contents of F.I.R. Exh.P.O being a previous statement of P.W. Naveed Anwar Naveed can be compared with the statement recorded by him on oath in the Court. Admittedly both these statements disclose two different versions particularly on the points or "nomination of the accused persons, the names of the witnesses as well as injuries sustained by Mst. Ghazala Naveed on her body during the commission of the offence. Therefore, legally no reliance can be places on supplementary statement Exh,.D/B. Undoubtedly F.I.R. and Court statement of P.W. Naveed Anwar. Naveed both have introduced two versions as has been noted above. In such-like situation the question would be as to which version of the prosecution is to be accepted. In this behalf it may be observed that according to administration of criminal justice a-witness who makes glaring contradictions, omissions and improvements in his Court statement qua the statement recorded by him before the police either as per the contents of the F.I.R. if he is complainant or if he is a witness and his statement is recorded under Section 161, Cr.P.C. such witness is to be considered to be wholly unreliable witness and it is not advisable to place explicit reliance upon his evidence.
Similar view was also reiterated by the Hon’ble Supreme Court of in the cases reported as Syed Muhammad Firdaus and others vs. The State (2005 SCMR 784), Abid Ali alias Ali vs. The State (2011 SCMR 161), Asfand Yar Khan vs. The State and another (2020 SCMR 715) and Lal Marjan and another vs. Islam Gul and others (2021 SCMR 301), Resultantly, by converting instant petition into a petition under Section 497, Cr.P.C. the alleged detenu Muhammad Nadeem is admitted to post-arrest bail subject to his furnishing bail bonds in the
sum of Rs. 5,00,000/-with one surety in the like amount to the satisfaction of learned trial Court.
15. With the observations made above, this petition is disposed of.
16. Before parting with this Order, I would also like to direct the Office to send copy of this Order along with copy of petition, as well as, its annexures, report submitted by the DSP Organized crime Sadar Division, Lahore, affidavit Mark-A duly sworn by Mehmood Mustafa, SI/o/c, copy of supplementary statement, copy of case diary No. 06 without date to the CCPO, Lahore who is directed to look into the matter and see what is being done by his subordinates.
(A.A.K.) Petition disposed of
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