| Citation(s) |
|---|
| 1958 SLG 4043 = 1958 SLD 4043 = 1958 PLD 38 |
West Pakistan Peshawar
Writ Petition No. 589 of 1957, decided on 18th February 1958, under Article 170 of the Constitution and section 491 of the Criminal P. C. for release of Alyas etc.
Presented By: HABIBULLAH KHAN, J
(a) Criminal Procedure Code (V of 1898), S, 46(1) Arrest, mode of-Person under police restraint from 19th Octo ber 1957, removed by police to another place where he was handcuffed on 21st October 1957, and produced before a Magistrate-Person deemed to be under arrest from 19th October 1957. Held, that to arrest a person it was sufficient if the arrest ing officer confines the body of the accused person or touches his body, and confinement or contact will be unnecessary if the accused person submits to the arresting officer's custody by word or action. It is by no means necessary that the arresting officer should, in effecting the arrest, immediately proceed to hand-cuff the accused person. Hand-cuffs are used as a means of restraint, and their use can only be justified on the ground, that they are indispensable for effecting the arrest. Where the facts were that A had been sent for by the investigating Officer on the 19th October, that he joined investigation, that the same day he made a detailed confes sional statement in the Crime Branch Office at Peshawar, that the same evening he was removed by the police to Campbell pur where he was lodged and detained in a police post (Central Investigation Agency), that he remained there with the police under detention uptill 21st October, and that for the first time he was produced before a Magistrate at Campbellpur for recording his confession. Held, that A was not a free man on the 19th and 20th October, that having submitted to custody by his action and word when he made a detailed confessional statement in the Crime Branch at Peshawar, he should be deemed to have been under arrest thence from, and that as he was not produced before the nearest Magistrate as required by section 167, Criminal P. C. his arrest and detention in police custody with out a remand order of a Magistrate uptill the 21st October were improper and illegal. Devices adopted by the police could not be allowed either to obscure the intention of he investigating Officer, or to alter the true facts, or to circumvent the mandatory provisions of law. (b) Criminal Procedure Code (V of 1898) S. 491-Habeas corpus petition- Becomes infructuous if detention s legalised subsequently. Where detention of a man suspected of murder was illegal from the 19th to Nth October, being without a remand order from the nearest Magistrate in accordance with section 167, Criminal P. C., but a remand was taken on the 21st and his detention was thus subsequently legalised, held, that his habeas corpus petition having been rendered, infructuous must be dismissed. Sajjad Ahmad Jan and S. Abu Talib Shah for Petitioners. A. A. G. (Peshawar) for
Respondents. Date of hearing : 18th February 1958.
Writ Petition No. 589 of 1957, decided on 18th February 1958, under Article 170 of the Constitution and section 491 of the Criminal P. C. for release of Alyas etc.
Presented By: HABIBULLAH KHAN, J
(a) Criminal Procedure Code (V of 1898), S, 46(1) Arrest, mode of-Person under police restraint from 19th Octo ber 1957, removed by police to another place where he was handcuffed on 21st October 1957, and produced before a Magistrate-Person deemed to be under arrest from 19th October 1957. Held, that to arrest a person it was sufficient if the arrest ing officer confines the body of the accused person or touches his body, and confinement or contact will be unnecessary if the accused person submits to the arresting officer's custody by word or action. It is by no means necessary that the arresting officer should, in effecting the arrest, immediately proceed to hand-cuff the accused person. Hand-cuffs are used as a means of restraint, and their use can only be justified on the ground, that they are indispensable for effecting the arrest. Where the facts were that A had been sent for by the investigating Officer on the 19th October, that he joined investigation, that the same day he made a detailed confes sional statement in the Crime Branch Office at Peshawar, that the same evening he was removed by the police to Campbell pur where he was lodged and detained in a police post (Central Investigation Agency), that he remained there with the police under detention uptill 21st October, and that for the first time he was produced before a Magistrate at Campbellpur for recording his confession. Held, that A was not a free man on the 19th and 20th October, that having submitted to custody by his action and word when he made a detailed confessional statement in the Crime Branch at Peshawar, he should be deemed to have been under arrest thence from, and that as he was not produced before the nearest Magistrate as required by section 167, Criminal P. C. his arrest and detention in police custody with out a remand order of a Magistrate uptill the 21st October were improper and illegal. Devices adopted by the police could not be allowed either to obscure the intention of he investigating Officer, or to alter the true facts, or to circumvent the mandatory provisions of law. (b) Criminal Procedure Code (V of 1898) S. 491-Habeas corpus petition- Becomes infructuous if detention s legalised subsequently. Where detention of a man suspected of murder was illegal from the 19th to Nth October, being without a remand order from the nearest Magistrate in accordance with section 167, Criminal P. C., but a remand was taken on the 21st and his detention was thus subsequently legalised, held, that his habeas corpus petition having been rendered, infructuous must be dismissed. Sajjad Ahmad Jan and S. Abu Talib Shah for Petitioners. A. A. G. (Peshawar) for
Respondents. Date of hearing : 18th February 1958.
QADIR and others-Petitioners
VERSUS
THE STATE and another-Respondents
Law: Criminal Procedure Code (V of 1898)
Section: 46(1),161
JUDGMENT HABIBULLAH KHAN, J.-This is a habeas corpus petition filed under section 491, Criminal P. C. challenging the pro priety and legality of the arrest and detention of three accused persons. The brief facts of the case relevant for the purposes of the petition are, that two persons Ashoor and Mst. Hasan Zari were shot dead on the night between 16th and 17th July 1957, in village Hassan Abad, situated in the jurisdiction of Police Station Daudzai in Peshawar District. The local police, after some investigation, arrested Faqir Muhammad, Saifullah and Muhammad Anwar for the double murder. For certain reasons, the 1. G. P. entrusted the investigation to the Special Police (Crime Branch). Malik Habibullah, A. I. G. (Crimes) alleges, that he arrested Alyas on the 21st October 1957, in Campbellpur, and Muhammad Afzal and Mst. Hava Jan on the 31st October 1957, in their village Hassan Abad. Accord ing to him, Alyas was produced before a Magistrate at Campbellpur for recording his confession, whereas Muhammad Afzal and Mst, Hava Jan were removed to Lahore on the 1st November. In the meantime, the present petition was sub mitted on the ground, that the arrest and detention of the three accused persons, namely, Alyas, Muhammad Afzal and Mst. Hava Jan was malafide, improper and illegal, inasmuch as the intention of the Special Police was to exonerate Faqir Muhammad, Saifullah and Muhammad Anwar, who had been earlier arrested by the local police for the double murder, and to involve falsely Alyas, Muhammad Afzal and Mst. Hava Jan. Since Muhammad Afzal and Mst. Hava Jan are now on bail, we will ignore their case for the present, and consider that of Alyas alone, who is still under custody. The first question which falls for determination is, as to when Alyas was arrested. We consider it necessary to examine this question first, because whereas according to Malik Habibullah, A. I. G. (Crimes), Alyas was arrested on the 21st October in Cambellpur, the case for the petitioner is, that he was arrested on the 19th October in Peshawar and was detained in police custody for two days and two nights without any remand order by a competent Magistrate. …