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Stereo. H C J D A 38.

Judgment Sheet
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT

Writ Petition No. 8709/2024

(Muhammad Imran vs. Inspector General of Police, etc.)

JUDGMENT

Date of hearing: 20.02.2024

Petitioner by: Mr. Sajjad Ahmad Jatoi, Advocate

State by: Mr. Shahid Nawab Cheema, Assistant Advocate

General with Abdullah Ahmad Malik, District
Police Officer, Chiniot, Abaid Ullah DSP Legal,
Ijaz Imran Station House Officer, Waseem
Sajjad SI & Farasat Ullah Station House Officer.
Respondent by: Mr. Sohail Khan Chadhar, Advocate for
respondent No.6

Research Mr. Amad Tahir Ch, Advocate

Assistance by:

ALI ZIA BAJWA, J.:- Through the instant constitutional

petition filed under Article 199 of the Constitution of the Islamic Republic of
Pakistan, 1973, (hereinafter ‘the Constitution’) the petitioner sought recovery
of the detenu namely Muhammad Azam, his real brother, who was allegedly
in illegal detention of respondents No. 2 and 3, i.e. Station House Officers,
Police Station Defense-A, Lahore and Police Station Bhawana, District
Chiniot.

2. Through the orders dated 07.02.2024 and 09.02.2024, directions

were issued to respondent No.2/SHO, Police Station Defence-A, Lahore, and
respondent No.3/SHO Police Station Bhawana, District Chiniot to produce the
detenu before the Court. On 14.02.2024, SHO Police Station Bhawana,
District Chiniot appeared before the Court and filed his report according to
which the detenu was arrested on 13.02.2024 and sent to judicial lockup for
Test Identification Parade (TIP) in connection with case FIR No.504/2023,
Writ Petition No.8709/2024
(2)

dated 20.10.2023, offence under Section 392 PPC registered with Police
Station Muhammad Wala, District Chiniot. Such conduct of the SHO Police
Station Bhawana/respondent No. 3 was sufficient to raise eyebrows, as the
entire process of arrest and sending the detenu to the judicial lockup for TIP
was carried out after the direction was issued by this Court to produce him
before it. In reply to the different Court queries, the conduct shown by
respondent No.3 was evasive, thus, he was issued a show-cause notice to
explain why the contempt proceedings should not be initiated against him.
District Police Officer (DPO), Chiniot was also directed to appear before the
Court along with the complete record of the aforementioned criminal case. On
the next date of hearing, the DPO appeared before the Court and filed his
report. The record of the case reflected that Muhammad Aslam ASI arrested
the detenu on 13.02.2024 at 6:00 p.m. and produced him before the Area
Magistrate on the same day at 8:00 p.m. in a slipshod manner as the case
before this Court was fixed on 14.02.2024. It was seemingly done to legalize
the custody of the detenu to avoid the legal consequences of keeping someone
in illegal custody and to defeat the directions issued by this Court for the
production of the detenu. According to the report of DPO, the detenu was
lodged in District Jail Jhang on 13.02.2024 but the report of the
Superintendent of that jail reflected that the detenu was received in the prison
on 14.02.2024 at 7:10 p.m., meaning thereby that on 14.02.2024 the detenu
was in the police custody but he was not produced before the Court. When
confronted with the aforementioned state of affairs, the DPO pledged before
the Court to hold an independent inquiry to expose the illegalities committed
by his subordinate police officials.

3. Today, District Police Officer, Chiniot appeared before the Court

and stated that during the fact-finding inquiry, it was proved that the detenu
Muhammad Azam remained in illegal custody. He further apprised the Court
that the detenu has been discharged from the aforementioned criminal case
and strict action stands initiated against the delinquent police officials
involved in keeping the detenu in illegal custody, which shall be concluded
expeditiously. Given the above, the show cause notice issued to the Station
House Officer, Police Station Bhawana is hereby withdrawn, leaving the
Writ Petition No.8709/2024
(3)

matter to be dealt with by the internal mechanism of accountability in the

police department.

4. The Court is deeply concerned and must carefully consider how

the situation described above could have been prevented. Illegal detention
represents a major breach of fundamental human rights and freedom. In
Pakistan, instances of illegal detention by police and other law enforcement
agencies are a concern that undermines the rule of law and the trust of
citizens in legal and judicial systems. The Constitution and statutory laws
provide several safeguards against illegal detention. Article 4 of the
Constitution enshrines the principle of legal protection for individuals. It
guarantees and emphasizes that no action detrimental to a person’s life,
liberty, body, reputation, or property shall be taken except in accordance
with the law. This provision is a safeguard against the arbitrary actions by
the State or its organs, ensuring that any measure taken against an individual
must be justified through established legal procedures and standards. Article
9 of the Constitution focuses on the security of individuals, asserting that no
person shall be deprived of life or liberty except in accordance with law.
This Article is a cornerstone for the protection of personal freedoms and
safety, establishing the legal principle that any deprivation of life or liberty
must follow due process and be sanctioned by law. Article 10 of the
Constitution provides specific safeguards concerning arrest and detention,
detailing the rights of individuals who are arrested or detained. It outlines the
procedural rights afforded to such individuals, including the right to be
informed of the grounds of arrest, the right to legal representation, and the
right to be produced before a court within a specified period. This Article is
crucial for ensuring that the process of arrest and detention is carried out
transparently and legally, protecting individuals from unlawful or arbitrary
detention. In Ismaeel1 the Supreme Court of Pakistan observed that the
rights guaranteed under Articles 4, 9, and 10 of the Constitution are
sacrosanct and jealously guarded by our Courts. Article 14(2) of the
Constitution serves as a critical legal safeguard against the maltreatment of
individuals under police custody, stating unequivocally: “No person shall be

1
Ismaeel vs. The State - 2010 SCMR 27
Writ Petition No.8709/2024
(4)

subjected to torture for the purpose of extracting evidence.” Article 14(2) of

the Constitution is a testament to the State’s commitment to safeguarding
human rights and dignity against the menace of torture. The insertion of
Article 10-A within the constitutional framework heralds a pivotal extension
of the right to a fair trial and due process, not merely confining its scope to
the courtroom but expansively integrating it into the pretrial proceedings,
including the investigation phase. This provision, illustrative of the
jurisprudential evolution towards safeguarding individual liberties, mandates
that the fundamental rights of an accused are zealously guarded from the
moment of accusation through to the final adjudication.

5. The statutory regime under Sections 61, 62, and 167 of the
Code of Criminal Procedure, 1898 (hereinafter ‘the Code’) highlights our
legal framework’s commitment to procedural fairness and the protection of
rights of accused person following an arrest. These provisions are
foundational to the criminal justice system, ensuring that the process from
arrest to potential charges is carried out within the bounds of the law, with a
continuous emphasis on the rights of the accused and the oversight of
judicial authorities. These provisions of the law are pivotal in outlining the
procedural rights of the accused and the responsibilities of law enforcement
agencies from the moment of arrest through the period of custody until the
investigation is completed. Section 61 of the Code stipulates that no
individual shall be detained in custody by the police beyond the period of
twenty-four hours without being presented before a Magistrate. Section 62
of the Code further complements Section 61 by mandating that the Officer
Incharge of a Police Station should report the cases of all persons arrested
without a warrant to the authorities as provided therein. Section 62 of the
Code, though often overlooked, plays a crucial role in safeguarding
individuals from illegal detention by police officials. For better assistance
Section 62 of the Code has been reproduced hereinafter: -

“62. Police to report apprehensions. Officers in charge of police station

shall report, to the [Zila Nazim, District Superintendent of Police and
District Public Safety Commission set up under the Police Act, 1861 (V of
1861)] the cases of all persons arrested without warrant, within the limits of
their respective station, whether such persons have been admitted to bail
or otherwise.
Writ Petition No.8709/2024
(5)

…………………………….
……………………………..”

Rule 26.8 of the Punjab Police Rules, 1934 (hereinafter ‘the Police Rules’),
which further reinforces Section 62 of the Code, has been reproduced
hereinafter: -

“26.8. Report of arrest: - (1) Under Section 62, Code of Criminal

Procedure an officer in charge of a police station is required to report to
the District Magistrate, Sub-Divisional Magistrate, or such other Magistrate
as the District Magistrate may direct, all arrests without warrant made by
himself or in his jurisdiction.

(2) Reports of such arrests shall be made in Form 26.8 (2) whether the
person arrested has been admitted to bail or not and may be sent by post.”

These provisions are designed to ensure transparency and accountability in

the operation of law enforcement agencies, providing a legal framework that
mandates that an ‘Arrest Report’ must be sent to the concerned authorities
during the first twenty-four hours of the arrest of an accused and detention.
By stipulating the rights of the detained individuals and the responsibilities
of the detaining authorities, Section 62 of the Code serves as a critical
mechanism for preventing abuse of power and illegal detentions.

6. The common fallacy that police can retain custody of an

accused for twenty-four hours without informing any authority is both
incorrect and contrary to the law. This belief undermines the legal
safeguards designed to protect the rights of individuals and ensure
transparency and accountability within law enforcement processes. The legal
framework mandates that police authorities must report arrests and
detentions to higher authorities promptly under Section 62 of the Code. This
requirement serves as a critical check against arbitrary detention, ensuring
that each case is subject to oversight and that the rights of the arrestees are
protected. The necessity to report arrest/detention helps to prevent abuse of
power, ensuring that the detention of individuals is always justified,
documented, and subject to legal scrutiny. It was ruled in Muhammad
Siddiq2 that an arrest report under Section 62 of the Code sent to the quarters
concerned, is not a matter of sending greetings to them, but such a report is

2
Muhammad Saddiq vs. Province of Sindh through Home Secretary and 2 others – PLD 1992 Karachi 358
Writ Petition No.8709/2024
(6)

sent so that they can scrutinize the arrest made by Police Officer and find out
if the action can be justified in law.

7. Section 167 of the Code further addresses the situation where

the investigation cannot be completed within twenty-four hours, granting the
investigating officer the authority to seek an extension of the detention
period. This provision of law lays down the procedure for such an extension
to be granted by the Magistrate. The provision that mandates the transfer of
custody of an accused to a Magistrate within twenty-four hours of arrest is a
significant safeguard designed to minimize the risk of illegal detention by
the police. This legal requirement ensures a critical layer of judicial control,
preventing the prolonged, unauthorized holding of accused without formal
charges or legal justification. By involving the judiciary at this early stage, it
reinforces the principle that detention must always be subject to legal review
and approval.

8. The overall incharge of a criminal case is an Area Magistrate

who, even during the progress of an investigation, gets many opportunities
to go through the record of an investigation conducted by the police. 3 The
Area Magistrate acts as a pivotal character in our criminal justice system,
therefore, his supervisory role ensures that police investigations adhere to
the principles of justice, transparency, and fairness, which are fundamental
to maintaining public trust in the criminal justice system. He plays a crucial
role in safeguarding the rights of the accused and the complainant, ensuring
that investigating agencies do not infringe upon fundamental rights and
investigations are conducted in a manner that upholds lawfulness. This
involves ensuring that investigations are conducted fairly, transparently, and
within the legal framework.

9. When faced with the decision of granting physical or judicial

remand for TIP, a Magistrate must approach the matter with the utmost
diligence, keeping his eyes and ears open, and not in a perfunctory manner.
A Magistrate is tasked with carefully considering the facts, the law, and the
circumstances of each case before making a decision that could significantly

3
Khizer Hayat and others vs. Inspector General of Police (Punjab), Lahore and others - PLD 2005 Lahore
470
Writ Petition No.8709/2024
(7)

impact an individual’s liberty and rights. The Magistrate should actively

seek to understand the nuances of the case, including the evidence presented,
the conditions under which the arrest was made, and the arguments from
both the prosecution and the accused. It requires a thorough and thoughtful
examination of all aspects of the case to ensure that any decision to grant
remand is justified, lawful, and in accordance with settled principles
governing the subject. A perfunctory approach, in contrast, implies a
superficial or automatic decision-making process that neglects the careful
consideration required in such matters. Such an approach might lead to
unjust outcomes, including the unwarranted deprivation of liberty, the
potential for abuse in custody, and the undermining of the public trust in the
legal system. Therefore, a Magistrate’s role in remand proceedings is critical
in safeguarding against arbitrary detention and ensuring that the rights of the
accused are protected. By acting judiciously and an open-minded assessment
of the evidence and legal arguments, Magistrates uphold the principles of
justice and fairness that are foundational to any criminal justice system.

10. In the present case when the accused was produced before the
Magistrate, for sending him to judicial lockup, he passed an order
mechanically, without the careful and thoughtful consideration that is
required for such a significant order which curtails the liberty of an
individual. The order of the Magistrate has been reproduced as infra:

‫ملزم بحراست پولیس حاضر‬422.323.31

‫تفتیشی آفیسرمعہ ریکارڈ حاضر‬ .0:..PM

‫ملزم کو برائے بھیجے جانے حواالت جوڈیشل برائے شناخت پریڈ پیش کیا گیا ہے ۔ ملزم کا‬

‫ حسب استدعا پولیس ملزم کو برائے شناخت پریڈ جوڈیشل‬، ‫چہرہ ڈھانپ کر پیش کیا گیا ہے‬

‫حواالت بھیجا جاتا ہے اور تفتیشی آفیسر کو ہدایت کی جاتی ہے که متعلقہ مجسٹریٹ صاحب‬

‫سے برائے شناخت رجوع کر کے تاریخ مقرر کروائے۔‬

‫سنایا گیا‬
Writ Petition No.8709/2024
(8)

11. The Magistrate’s order, which authorized the incarceration of

the detenu for TIP, lacks a detailed justification or rationale based on the
evidence available on the police file, therefore, it is a non-speaking order. A
speaking order in judicial proceedings is essential and refers to a judgment
or decision delivered by a court that comprehensively outlines the reasons
behind the court’s conclusions. Speaking orders provide a clear and detailed
explanation of the reasoning behind a decision. An order being a ‘speaking
one’ is also essential for the parties involved in the case to understand the
basis of the findings of the court. This is also crucial if a party wishes to
challenge the decision, as it provides a clear framework for the grounds of
appeal. Without a reasoned judgment, it would be difficult to identify any
potential errors in law or fact to challenge the same. Moreover, while
dealing with the question of sending an accused to prison for TIP, a
Magistrate has a crucial responsibility to thoroughly review the case diaries
to determine the necessity of acceding to the request of the investigating
agency. This process is not a mere formality, but a substantive judicial duty
aimed at safeguarding the rights of the accused while balancing the
requirements of the investigation. The order of the Magistrate, in the present
case, has no reference to the case diaries and material available on the record
warranting sending of the detenu to judicial lock-up for TIP. Had the
Magistrate adequately assessed the facts and circumstances of this case, he
would have been in a better position to protect an innocent person from
police oppression.

12. It has also been noticed by this Court that the detenu was
produced before the Magistrate after court hours. The practice of presenting
the accused before a Magistrate outside of regular court hours has been
deprecated by the Courts. The principle here is that the accused should be
produced before the Magistrate within official court hours to ensure the
proceedings are conducted transparently and within the formal legal
framework. Presenting an accused after court hours could necessitate
conducting these proceedings at the Magistrate’s residence or another
unofficial location, a practice that constitutional Courts have explicitly
criticized for lacking transparency and formal procedural safeguards. The
request of the investigating agency regarding remand should be entertained
Writ Petition No.8709/2024
(9)

in open court during court hours unless there are extraordinary compelling
reasons and circumstances for doing so in any other place than the open
courtroom. Such reasons must be reflected in the order of the Magistrate.
Reliance can be placed on Ghulam Sarwar and another vs. The State –
1984 [Link].L.J. 2588. Moreover, the practice of presenting an accused before
a Magistrate at a location other than the court premises, particularly after
court hours, significantly impairs the accused’s access to legal
representation. When an accused is produced at a Magistrate’s residence or
any other unconventional location, it inherently restricts his ability to secure
an advocate’s presence which is violative of Articles 10 and 10-A of the
Constitution.

13. Unfortunately, there exists a tendency amongst Magistrates to

accede to requests for TIP without sufficient scrutiny of the underlying
reasons presented by the police. Such a practice not only undermines the
sanctity and the rigorous standards required for the deprivation of an
individual’s liberty but also potentially compromises the integrity of the
judicial process. The decision to send an accused to judicial lock-up for TIP
should neither be taken lightly nor should it be the product of a perfunctory
endorsement of the police’s request. It is incumbent upon the Magistrates to
safeguard the rights of the accused while balancing the needs of the State to
prosecute offenders.

14. Before drawing the curtain on this judgment, it would be

prudent to outline the fundamental rights of an individual arrested and
investigated by the police.

I. Upon apprehension and during subsequent detention, it is

incumbent upon the detaining authority to promptly apprise
the accused of the grounds for such arrest, in accordance
with the principles of due process and legal transparency.
Communicating the grounds for arrest and the details of
accusations allows the accused to understand the allegations
he is facing and offer an adequate defense. Such practice
ensures that arrests are not made without sufficient cause or
Writ Petition No.8709/2024
(10)

used as a tool of oppression, thereby safeguarding the liberty

of citizens and the rule of law.

II. An accused should be allowed to contact his family after his

arrest. The ability to communicate with family ensures that
the accused can alert others about his situation, potentially
mobilizing support and advocacy on his behalf. This can be
crucial for safeguarding their rights, especially in
jurisdictions or situations where the risk of violation of the
law is high. In essence, the right of an accused to contact his
family immediately after arrest is a crucial safeguard against
arbitrary and illegal arrest.

III. An accused has an undeniable right to have legal advice

instantly after his arrest. Police authorities have a crucial
obligation to facilitate an accused to contact his lawyer
following arrest. This duty is rooted in the principles of due
process and the right to a fair trial, as recognized by Articles
10 and 10-A of the Constitution. Providing an accused
individual with access to legal representation is a
cornerstone of a fair, just, and humane legal system. This
access is not merely a procedural right but a foundational
element that ensures the integrity of the criminal justice
system.

IV. The arrest report concerning an accused must be dispatched

following Section 62 of the Code, together with Rule 26.8 of
the Police Rules, to avoid instances of illegal detention. If
the investigation extends beyond twenty-four hours, it is
mandatory to bring the accused before a Magistrate to seek
authorization for any further extension of custody under
Section 167 of the Code.

V. Upon the presentation of an arrested individual before the

concerned Magistrate, it becomes the Magistrate’s solemn
duty to safeguard the accused’s fundamental rights, a
 Writ Petition No.8709/2024
(11)

custodianship that forms the foundation of judicial integrity

and fairness. In our criminal justice system, the role of the
Magistrate is both significant and pivotal.

VI. An accused must not be subjected to torture to elicit

evidence or confession as prohibited under Article 14 of the
Constitution, which advocates for fairness, equality, and
dignity in the treatment of an accused. Ensuring compliance
with this provision safeguards the accused from inhumane
treatment and upholds the fundamental principles of justice
and human dignity.

VII. The safeguarding of the aforecited rights of an accused in

custody must not only be ensured by the police officials but
also be properly documented in the police record to reflect
such efforts.

15. This judgment serves as an earnest reminder to the Magistrates

and police authorities of the grave responsibility they carry on their
shoulders to safeguard the fundamental rights of those accused held in
custody. Every accused person, irrespective of the charges against him, is
entitled to fundamental rights which must be protected and respected
throughout the criminal justice system.

16. Disposed of.

(ALI ZIA BAJWA)

Judge
The order was pronounced and dictated on 20.02.2024 and after completion,
it was signed on 19.03.2024.

Judge

Approved for Reporting

Judge
Athar*