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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.

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.

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.

‑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.

The relevant provision of law relating to the mode of arrest is laid down by section 46, Criminal P. C. subsection (1) of section 46 says :

"In making an arrest the police officer or other persons making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action".

It is quite clear from the very wording of the subsection, that it is sufficient if the arresting officer confines the body of the accused person or touches his body, and even 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 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 means indispensable for effecting the arrest.

If an Investigating officer wants to keep an accused person in custody for more than 24 hours, then he is bound to follow the procedure laid down under section 167, Criminal P. C., subsection (1) whereof says:

"Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of 24 hours fixed by section 61, and there are grounds for believing that the accusation or information is well founded, the officer . . . . . . shall forthwith transmit to the nearest Magistrate, a copy of the entries in' the diary shall at the same time forward the accused to such Magistrate."

It will be easily observed, that if the Investigating Officer seeks the detention of an accused person for a period of more than 24 hours, he must comply with the requirements of this section and produce him before the nearest Magistrate.

The record of the case and the statement of Malik Habi bullah unmistakably reveal, that the name of Alyas had been mentioned in connection with the occurrence during the inves tigation, that he had been sent for by the Investigating Officer on the 19th October, that he joined investigation, that the same day he made a detailed confessional statement in the Crime Branch Office at Peshawar, that the same evening he was removed by the police to Campbellpur where he was lodg ed 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 there at Campbellpur for recording his confession that day. In the light of these undisputed) facts and the provisions of section 46, Criminal P. C., it is extremely difficult to accept the suggestion of Malik Habib ullah, that Alyas was a free man on the 19th and 20th October, and that he was arrested on the 21st October for the first time, The ceremony of putting hand‑cuffs on Alyas might have been performed on the 21st October, when he was being produced before a Magistrate at Campbellpur for confession, but there cannot be any manner of doubt, whatsoever, that he had already submitted to custody here in Peshawar by his action and word (detailed confessional statement made in the Crime Branch Office Peshawar), and was also under restraint and in the hand of the police officer, who actually removed him to Campbellpur and detained him there in a police post. The fact, that Alyas had submitted to custody and was' under restraint at Peshawar, is further reinforced by the admission of Malik Habibullah, that he removed him to Camp bellpur, because there was no police station, police post, or any other place here in Peshawar, which was free from the influence of some of the high police officials, who were accused of taking sides with the two sets of the accused persons, that he had approached the S. S. P. Cbaudhri Abbas Ali for the purpose, and that it was after consultations with him that he thought it desirable to remove Alyas to Campbellpur and not detain him here in Peshawar. In the course of his examina tion, question was put to Malik Habibullah, as to why Alyas was not produced before a . Magistrate here at Peshawar for recording his confession, when he had already made a detailed statement to police. His reply was, that he did not do it, because it was Sunday on the following day, and that he did not know whether the Duty Magistrate at Peshawar would have been willing to record the confession on a holiday: Here Malik Habibullah let the cat out of the bag, and admitted by implication that Alyas was in police custody.

On the facts found above, I am firmly of the opinion, that Alyas was arrested here in Peshawar as contemplated by section 46, Criminal P. C., was not produced before the nearest Magistrate as required by section 167, Criminal P. C., and that his arrest and detention in police custody without a demand order of a Magistrate up till the 21 October were therefore improper and illegal. I consider it necessary to observe here, that such devices as have been adopted in the present case, cannot be allowed either to obscure the intention of the Inves tigating Officer, or to alter the true facts, or to circumvent I the mandatory provisions of law.

The position at present, however, is different. A complete challan has now been put in Court against Alyas, Muhammad Afzal and Mst. Hava Jan. Muhammad Afzal and Mst. Hava Jan are on bail, while Alyas is in judicial Lock‑up under Court's order. Whatever the merits of the case, with which we are not concerned at all, the present detention of Alyas cannot be seriously challenged. No doubt, his detention from 19th uptill 21st October was illegal, but it was subsequently legalised by a competent Court. As such, the petition becomes infructuous, and calls for no orders.

The record should be immediately forwarded to the Magistrate, who will hold enquiry in the case.

‑My learned Brother is certainly right in expressing his views on the points involved in this case, because he has heard the case on more than one occasion and has recorded some evidence too. But, in all fairness to both the parties,, it will be wholly wrong for me to express my views with regard to the merits or demerits of the arrest of the three accused, in particular that of Ilyas, the place where they were arrested or the circumstances under which they were taken into custody. It is because when the case came up for hearing before the Division Bench, it was my first occasion to deal with it and the learned counsel appearing for the petitioner accepted without any discussion the position put forward by me that the case having been challaned to a Court of competent jurisdiction, this petition did not stand in need of being pursued any further. With all respect, therefore, I can do no more than to agree with my learned Brother only in so far as the position at the present moment stands, that this petition, having become infructuous, is liable to be dismissed as such.

A. H. Petition dismissed.

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