Saleem Khan through Anwar Khan Vs The Provincial Police Officer, Khyber Pakhtunkhwa, etc

i-

v Judgment Sheet

(Judicial Department)

WP No.729-Bl2025

Saleem Khan through Anwar Khan Vs

The Provincial Police Officer, Khyber Pakhtunkhwa, etc.

TUDGMENT

For petitioner(s):

Advocate

For responden(s): Mr. Naiib Ullah. A.A.G.

Respondent No.4, Sajid Khan, SHO, in person, along with counsel Mr. Shahzada k:fan Zia Advocate.

4 Date of hearing: 11.11.2025 rf,& * rf {.

MUHAMMAD TABIO AFRIDI. J.- The petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, seeking the following relief:

,,On acceptance of the instant writ petition, this court may very graciously be pleased to set aside order dated o2llol2o25, and to direct the respondents to forthwith set at tiberty Saleem Khan (detainee) from the unlawful confinement of respondent No.4, who was taken by him from his house and has been confined at unknown place. This court may also be pleased to direct the respondents to produce the detainee before the court of law, if he is required in any criminal maffer for proceedings according to law.

This court may also be pleased to initiate legal action against the respondents for considering them above the law and taking law in their own hands.

i

Any other relief not specifically prayed for but deems fit by this court in circumstances of the case, may also be granted."

2, The brief facts alleged in this petition are that approximately three to four months ago, Mr. Sajid Khan, SHO Police Station Kakki, conducted a raid on the petitioner's house, during which the petitioner's son, Mr. Saleem Khan, was arrested and taken to an unknown location. The petitioner, Anwar Khan, inquired of the police officials the reason for his son's arrest; however, they took his son away without assigning any reason. The petitioner, thereafter, submitted applications to the respondents seeking release of the detainee, but without any result. On 02-10-2025, the petitioner learnt that his son was confined at Police Station, Kakki, District Bannu, whereupon he filed a petition under Section 491 ? Cr.P.C. Pursuant to the Court's order, the Bailiff visited Police Station, Kakki and found the detainee, Saleem Khan, in custody. The Bailiff failed to produce the detenue; however, he submitted a report stating that the SHO refused to hand the detenue over to him. In this context, the learned Court recorded the statement of the Bailiff as CW-l: Nonetheless, after hearing the parties and examining the available record, the learned lower Court dismissed the petition on 20-10-2025.

3.When the case came up for hearing in motion, this Court directed respondent No. 04 to file his para-wise comments. Upon examination of the allegations made against the police, together with the report of the Court Bailiff and his statement recorded by the Court as CW-01 on 02-10-2025, the Sessions Judge, Bannu, was directed to submit, within seven days, a detailed report regarding any proceedings initiated against the police officials concerned, if any, in consequence of the BailifPs report and statement, along wittr the outcome thereof.

l

l

l

4.In compliance with the directions of this Court, the learned District and Sessions Judge has submifted his report, which is placed on record.

5.The respondent No, 4, Sajid Khan, SHO Police Station Kakki, Bannu, in his statement before the lower court as well as in his written comments, denied the allegations. He stated that on the alleged date and time, the deceased Ibrahim was being exhumed in connection with FIR No.333, dated oI.lo.2o25, registered under sections 3021364 PPC at Police Station, Kakki, Bannu. He further asserted that he was accompanying the Judicial Magistrate, the sHo and investigation staff of Police Station Mandan, the Medical Officer, and the TMA stafi and remained present at the site until 12:00 p.m. for the purpose of providing security. He ( further asserted that the bailiff s report is false and baseless'

6.Arguments heard and record perused with assistance of learned counsel for the petitioner and learned AAG for the state.

7.Undisputedly, the Bailiff of the court, pursuant to the orders of the lower court, visited Police Station, Kakki, Bannu' He failed to produce the detenue before the court and submitted his report to the lower court. The BailifPs report consists of two parts. The first part pertains to the recovery of the handcuffed detenue from a quarter of the police station and his being kept waiting by the Muha:rir at the police station until the arrival of the SHO, and it concludes with the Bailiff s signature. Whereas the second part of the report comprises two notes; the first note mentioned taking away of the detenue whereas the second depicted the arrival of the SHO at the police station, the snatching of the detenue from the Bailifl and his shifting to an unknown place. It further states that the sHo took the petitioner's mobile phone, called the Bailiff a

terrorist, declared that he does not obey court orders, insulted the Bailiff, and expelled him flom the police station. This part of the report also concludes with the Bailiff s signature.

8.The Bailiff of the Court submitted his report wherein he reported that the detenue, salim Khan, is neither charged in FIR nor any entry in respect of his arrest is recorded in the daily dairy of the police station however noted that Anwar I(han son of Saleem Khan was found handcuffed in the police station and was reportedly recovered. He reported that he was asked by the Moharrir of the police station to wait for the arrival of the SHO' He added first additional note wherein it was disclosed that the detenue was taken away from the police station. The Bailiff made second additional note wherein he levelled allegations of of force in taking away the detenue by the sHo, sajid Khan fr use

and use of abusive language against him. The name of the detenue is incorrectly recorded as Anwar Khan son of Salim Khan in the initial report as well as the two additional notes' The hurriedly drafted self-contradictory report of the Bailiff do not reflected his casual approach in the whole process and prima facie reflect the true events taken place at the time of why recovery of the detenue. The Bailiff did not explain as to he rushed to draft the report without waiting for completion of

the process of recovery of the detenue'

g. I have examined the reports submitted by the Bailiff as well as the District and Sessions Judge, Bannu. The record reflects that upon receipt of the Bailiff s report, it was treated

as a complaint and forwarded to the District and Sessions Judge for further proceedings. However, while relying solely settled, the on the Bailiff s statement that the matter had been complaint was dismissed as withdrawn, despite the fact that

the issue related to the court's proceedings in discharge of his

official duties and not to the Bailiff personally'

10.As the Bailiff located the detenue at the police station and further reported that the detenue had been taken away to an unknown destination, afact denied by the police, it became a clear case of a deliberate false statement by either the Bailiff or the police. In such circumstances, the lower court was under a legal obligation to ascertain the true facts and determine which pafy was misrepresenting the situation. Instead, the lower court summarily dismissed the habeas corpus petition in a slipshod manner.

11.Admittedly Section 491 of the Code of Criminal Procedure, 1898 (Cr.P.C.) empowers Sessions Judge or additional Sessions Judge to issue directions similar to a writ of habeas corpus. It empowers the Courts to issue direction for production of a person who is illegally or improperly detained in public or private custody. The provision allows the Courts to intervene in matters conceming personal liberty and ensure that individuals are not unlawfully deprived of their freedom. It empowers the court to order the release of a person from illegal detention and to examine the legality of such detention.

12.The amendment to Section 491 was made through Ordinance VIII of 2002, which inhoduced sub-section (1A) to allow Sessions Judges and Additional Sessions Judges to exercise certain powers under Section 491, subject to conditions specified by the High Court in a general or special order published in the official Gazette. This provision was inserted to empower lower courts in addition to the High Courts, facilitating quicker access to justice in matters of unlawful detention.

13.Proceedings under Section 491 ofCr.P.C can be initiated before the Sessions Judge or Additional Sessions Judges and before this Court if any person is in illegal and improper custody; similar relief can also be sought by a pargy under

-a r

\./ Article 199(1xb)(i) of the Constitution of the Islamic Republic of Pakistan, 1973 through writ of Habeas Corpus when any person is in custody without lawful autlrority or in unlawful manner. This Article is usually applicable on malfeasance, misfeasance and nonfeasance of any pafiy wittr respect to custody of a detenue. However, High Court Rules and Orders do not create any difference in the format of petition and style of orders in both types of petitions. Chapter 4-F, Volume-V of High Court Rules and Orders consists of rules framed by the High Court under Section 491(2) of Code of Criminal Procedure, 1898 which regulate the proceedings on petitions under Section 491, CI.P.C. They af,e as follows;

PART-F RULES FRAMED UNDER SECTION 491(2) OF THE

CODE OF CRIMINAL PROCEDURE, 1898, TO REGULATE

PROCEDURE IN CASES UNDER SECTION 491.

l. An application for an order under section 491 shall be made on an affidavit setting forth the circumstances under which the order is sought: Provided that all communications addressed to the High Court by a person in the custody of a public officer complaining of his detention or the conditions of his detention, whether supported by affidavit or not, shall be laid before a Judge for orders as applications under this rule.

2.Where the court is of the opinion that a prima facie case for granting the application is made out, a rule nisi may be issued calling upon the person or persons against whom the order is sought to appear on a day to be named therein to show cause why such order should not be made and at the same time to produce in Court the body of the person or persons alleged to be illegally or improperly detained then and there to be dealt with in accordance with law: Provided that if the Court so orders, production of the body of the person alleged to be illegally or improperly detained may be dispensed with.

3.If the application for an order under clause (a) or O) of subsection (l) of the section alleges that aperson is confined under such circumstances that the confinement amounts to an offence, the Court may, atthe time of issuing a rule nisi, also issue a search warrant, and the person to whom the wanant 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'

a

4.The provisions of sections 43,75,77,79, g2,93 and g4, v. criminal Procedure code, shall, so far as may be, apply to all such warrants issued under rule 3.

5.If the court issuing a search warrant under rule 3 has reasons to believc that the person to whom the warrant has been directed may not be able to identiS the person confined, the court may order a person named in the warrant to accompany the person to whom the warrant is directed, to assist him in the execution of the warrant.

6.The udt or the warrant shall be seled by the bailiff of the Court out of the list prepared by the Regishar iu consultation with the Deputy Registrar, or by such other person as may be appointed by th9 Judge. where the application is by or on behalf of asecurity prisoner, the writ will be served on the appropriate Govemment and not on the officer detaining the prisoner.: A security prisoner means a person who has been detained under the orders of the Federal oi Provincial Government under a law providing for preventive detention.

, i,

7.On the reflrm day of such rule or o,, *y day to which the f hearing theieof may be adjourned, whdre no cause is shown or where cause is shown and disallowed. the court shall pass an order that the person:or personi illegally or improperl,v detained shall be set at liberty or delivered to the perionrentitled to his or their custody. Where cause is allowed, the ruie shall be discharged

8.'Ihe Cou$ may, if necessary, in disposing of such rule, take evidence or direct a Court of Sessions or a Magistrate to take evidence. :

9.Upon the qe[um and procluction of the party on whose behalf the rulg ,u;as issLred, the custqdy of the prisoner shall be under the control and direction of, the Court uutil the {ispospl of the rule. Pendiqg tlp heari4g, the Court m,ay admit tl13; prisoner to bail or rernancl him to the prison,where he is in oustody, - : .

10.When a bailiff is deputed by the Court to produie an alleged detemr/detep-us,.the party requiring the production should deposit with the Tleasur,qr in advance, an arnount equal to the calculated expenses for the iounreys involved keeping in view his grade of pay and the daiiy allowance admissible to him under the relevant rules. 'l'he amount shall be paid to the bailiff after sanction by Deputy' Rcgistrar (Jr:dl.).before proceeding t9 his destination against a receipt which shall be kept on the file ti, of the case.

11.**+0{[omittedl.

12.*T'*01[Omittett], 13,.lrr.case'thg bailitf'does not submit his clair.n within the time mentigned,ip-the last rule, the amourt or the,balance thereof should be refhnded"to ttre, pW concemed. In case, hovvever, the party fails to, claim- refrurd within six weeks, the aruount due to it be credited.to.Govemment under the head Major head 1200000,

'at

:l

Minor head 1230000 Law and Order Receipts, Detailed head ! 1231000 Justice, 1,231003 Justice-General fees, fines and forfeitures Q0 ndthe heasury challan showing the credit should be attached to the file of the case.

14.If the writ is to be executed at State expense, the bailiff should be paid his expenses as admissible under the rules.

15.If, at any time, on sufficient ground shown to the satisfaction of the Registar, it is proved that the bailiff submitted an exaggerated or incorrect claim or claimed expenses though they were met by the party concerned, this should be taken to be a misconduct and necessary proceedings against him be initiated under the High court Establishment (Appointment and conditions of Service) Rules, which may result in major penalty provided by the relevant rules.

16.To check the tendency to file frivolous habeas corpus petitions, the Court may, at its discretion, require the party concemed to deposit in advance an amount as fixed by the Court directing the issuance of rule nisi to be paid to the detenus as a compensation if the petition is found to be frivolous or vexatious' W 17. In disposing of any such rule, the Court may, in its discretion, make an order for the payment by one side or the other of costs of rule.

I

18.The forms of warrants Nos. and2 in the Appendix to these rules shall be followed. Such rules further clariff that Chapter-4, Part-J of above Volume deals with rules for the issue of orders/directions under Articles 199 and 202 of the Constitution of the Islamic Republic of Pakistan,1973 and clause 27 ofthe letter patent. According to Part-l of Part-J referred above, such application shall be governed by Rules I to 18 of chapter 4-F, Volume-V of High Court Rules and Orders, which means Rulesl- 18 cited above shall also be applicable on habeas petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

14.The learned AAG submitted that the mode and manner in which the second part of the report of the Bailiff is narrated suggests that it was prepared under the petitioner's dictation with the intent to mislead the court. Without commenting on the Bailiff s report and without touching upon the merits of the

case, lest it prejudice the mind of the lower court, this writ

petition is allowed as the proper course and prescribed procedure was not adopted in disposal of the petition u/s 491, cr.P.c. consequently, the impugned order dated 02.10.2025 passed by the learned Additional Sessions Judge-IV is hereby

set aside, and the application filed by the petitioner under v Section 491 Cr.P.C., titled'oAnwar Khan v. SHO Kakki" and bearing No. 204lCr.MA of 2025, shall be deemed pending for decision on merits, subject to the following directions:

i. The Court shall ascertain the true facts and determine :which party is misrepresenting the situation by affording both sides an opportunity of hearing, permifiing them to produce evidence in support of their respective claims, and allowing cross-examination.

ii. To take strict action, in accordance with law, against any person found to have misrepresented the situation.

iii. The petitioner's pending application shall be decided on merits within the shortest possible time, but not later than 30 days from the date of receipt of a copy of this order.

15.This petition is allowed in the above terms. Announced

I 1.1 1.2025

(Ghafoor Zaman)

JUDGE

-Sd- Judge

-Sd- Judge

JUDGE

C

I

(D.B.)

Hon'ble Mr. Justice Muhammad Tariq Afridi Hon'ble Mr. Justice Abdul FaYaz