' Through this writ petition, the complainant of F.I.R. No,537 of 2004 dated 1-11-2004 challenged the order, dated 27-12-2004 of the Duty/Judicial Magistrate Section 30, Multan, respondent No,3 vide which he refused to give further remand to the Investigating Officer and also order dated 2-2-2005 of the Additional Sessions Judge, Multan, vide which the revision petition filed by the petitioner was dismissed.
2. It is argued by learned counsel for the petitioner that under section 167, Cr.P.C. The Magistrate has to weigh the evidence in respect of the offence and he, therefore, does not act in executive capacity but had to act judicially. Judicial proceedings defined in section 4(m) includes any proceedings in the course of which evidence is or may be legally taken on oath. Reliance is placed on Sundar Singh v. Emperor AIR 1930 Lah.
945. He further argues that under section 167, Cr.P.C. The Magistrates should have to perform their duties with vigilance and in accordance with law. If the Magistrate is conducting judicially under section 167, Cr.P.C. Grant of remand is also part of judicial proceedings and before passing order, he should have stated reasons for remand and should satisfy himself to its necessity. Reliance is placed on Bal Krishna v. Emperor AIR 1931 Lah. 99 and Riaz-ul-Haq and another v. Muhammad Naveed and another 2005 YLR 805. It is further argued that section 167(4), Cr.P.C. Requires that the Magistrates shall forward a copy of remand order to the Sessions Judge and they are accountable to the High Court under 'High Court Rules and Orders Vol-III, Chapter II-B, para.12 and the case-law laid down by the superior Courts. The High Court under section 439, Cr.P.C. And Sessions Court under section 439-A, Cr.P.C. Are quite competent to examine the correctness of the order passed by the Magistrate. Reliance is placed upon 1984 PCr.LJ 2472 (Lahore); 1984 PCr.LJ 2588 (Lahore); 1989 PCr.LJ 1993 (Lahore) and PLD 1969 Lah.
1020. It is further argued that provisions of section 167(1), Cr.P.C. Indicate that the policy of law is to bring an independent judgment to bear on the matter for, the. Magistrate before whom an arrested person is produced is also to have before him "a copy of the entries in the diary" means that the Magistrate is required to apply his judicial mind and to scrutinize the act of others and to see whether the act was legal and proper. It is argued that respondent No,3 failed to probe into the request submitted by the Investigating Officer, where the Investigating Officer has requested for 8 days physical remand of the accused to collect further evidence, the learned Magistrate illegally and unjustifiably turned down the request of the Investigating Officer by mentioning that as the Investigating Officer had already obtained 6/8 days physical remand of the accused with no progress, therefore, further grant of physical remand is not justified.
3. Conversely, learned A.A.-G. Argued that order passed under section 167, Cr.P.C. Is not judicial but an executive order and is not a revisable order; hence no revision lies before the Sessions Judge. It is argued that the same is amenable to the inherent jurisdiction of this Court. It is further argued that the learned Magistrate committed no illegality by refusing the remand order as prayed by the Investigating Officer. The remand of 6/8 days was previously granted by the Illaqa Magistrate but the police did not affect any recovery from the accused. Learned Magistrate was not obliged to extend the remand period especially when the police has failed to show any progress in the case and on the expiry of the remand period in stereotype situation asked for extension without any justification. Reliance is placed on 2000 PCr.LJ 520 and M LD 2001 1459. It is further argued that a Magistrate cannot be compelled to give remand of full 14 days in stretch or periodically extending the same on different occasions. He further argues that if the police could not show any progress of the case for the period in which the accused remained in their custody for 6/8 days, the Magistrate was right in refusing to extend the remand on the request of the Investigating Officer.
4. I have given my anxious consideration to the arguments advanced by learned counsel for the parties. The complainant/petitioner in this case is mainly aggrieved by the order dated 27-12-2004 passed by respondent No,3, Judicial Magistrate, Multan refusing to extend the remand on the request of the Investigating Officer. The controversy was raised by learned counsel, whether it is an executive or judicial order. This issue has been discussed by this Court and it was observed that the order for not granting physical remand by the learned Magistrate in a case registered under section 379, P.P.C. Is a judicial function as held in Riaz-ul-Haq and another v. Muhammad Naveed and another 2005 YLR 805; Ghulam Sarwar and another v. The State 1984 PCr.LJ 288 and Muhammad Rafi v. The State and others 1969 PCr.LJ 873.
5. Now question before this Court is whether the learned Magistrate was right in not granting further remand or he committed an illegality while refusing. In this case F.I.R. No,537 of 2004 was recorded on 1-11-2004 on the complaint of the petitioner with regard an occurrence which took place three months prior to the registration of the F.I.R. Under section 379, P.P.C. The petitioner was arrested and he remained on physical remand for 6/8 days granted to the police by the Illaqa Magistrate but no progress whatsoever had taken place. Again on 27-12-2004 the Investigating Officer moved an application requesting for extension in physical remand of the accused for the recovery of the stolen property. The learned Magistrate after perusing the record and making query from the Investigating Officer was of the opinion that no progress was shown by the police during the remand period and the police has failed to effect recovery of the stolen property. In this situation learned Magistrate was right in not granting extension in the physical remand of accused.
It is true that under section 167, Cr.P.C. Bthe Magistrate is empowered to grant physical remand of the accused for a maximum period of 14 days, but a Magistrate cannot be compelled to give full 14 days remand, if for 6/8 days, the police could not give any progress in the case while the Investigating Agency has been separated from Watch and Wards Agency and the Investigating Agency has full time to investigate criminal case and it is their only duty to investigate and for this period only they were separated from Watch and Wards Agency. In this situation it reflects upon the efficiency of the Investigating Officer of the Investigating Agency. In this view of the matter, the learned Additional Sessions Judge rightly observed that there is nothing wrong in the order passed by the Illaqa Magistrate 'while refusing to extend the remand. For what has been stated above, this petition is dismissed.