Yaqoob Khan petitioner is facing a murder charge along with others. The incident in which the petitioner and others are involved is alleged to have taken place on 26th September 1978, in which Muhammad Iqbal was murdered. The report was lodged by Mehr Khan at Police Station Musa Khel.
The petitioner applied for bail after arrest to the learned Session Judge, but that was rejected. He has now moved this Court for bail.
2. Learned counsel for the petitioner at the very outset submitted that he had not come to this Court for bail on merits, but it was only on a question of law that he had filed this application, because the detention of the petitioner in Jail under the circumstances was not warranted by law and the petitioner as such was entitled to be set free.
3. Two points were urged by the learned counsel first, that a Magistrate is authorised to take cognizance of a challan on a Police report submitted under section 173 of the Code of Criminal Procedure (hereinafter called the Code'). Learned counsel submitted that there was no such report in the instant case before the Magistrate and, as such, he was not competent to take any action.
He could not even pass any order under section 344 of the Code.
The second contention raised was that under section 344 of the Code, the Court competent to grant adjournment was the trial Court alone. Learned counsel submitted that this is a Sessions case and, as such, the competent Court is that of the Sessions Judge; hence all orders, whether interim or otherwise, shall have to be passed by the Sessions Court. Learned counsel submitted that this position is further fortified after the Law Reforms Ordinance, 1972, came into operation and the commitment proceedings were abolished.
Learned, counsel further submitted that no order of remand or adjournment was ever passed by the trial Judge on any occasion and the papers had always been put up before the Magistrate. This procedure was contrary to law, hence the detention of the petitioner is illegal.
4. As an important question of law was involved in this petition, therefore, on 20th March 1979, I had sent for Law Officer. Mr. Asif Jan, the then Assistant Advocate-General appeared on the said date and was directed to come prepared to address the Court on the two points urged by the learned counsel for the petitioner, but after the said date be ceased to be in service. Thereafter I was expecting either the Advocate General or some other Law Officer appear, but none of them appeared and Mr. Ghulam Ali Mubashir was deputed to appear on behalf of the State. .
Learned counsel appearing on behalf of the State simply relied on section 344 of the Code and submitted that for the purpose of remand, it was not necessary that an accused should have been produced before the Court, which is to try him. On these premises learned counsel tried to justify the detention of the petitioner.
5. Before giving my findings on the points urged by the learned counsel, I think it is necessary to refer to certain relevant provisions of the Code. In this connection, I would like to deal with section
61. Under this section, a Police Officer is not authorised to detain a person without warrant for a period exceeding 24 hours. The section does not contemplate that the person detained must be produced before the Court, which had jurisdiction to try him. Therefore, under this provision, the Police Officer can produce an accused before any Magistrate. In this connection, I may observe that the purpose of this section is not to authorise a Police Officer to keep a person in his custody without lawful authority and for an indefinite period.
6. The next relevant provision is section 167 of the Code. It deals with the procedure when the investigation cannot be completed in twenty-four hours. So under this section: "the officer in charge of the Police Station or the Police Officer making the investigation if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate".
The first requisite of section 167 is that if the period allowed under section 61 of the Code, has not been found sufficient to conclude the investigation then the officer in charge is required to forthwith transmit a copy of the entries in the diary of the case along with the accused ........
The second step to be taken in this sequence is that when an accused is forwarded to the Magistrate, it is not necessary that the Magistrate must have also jurisdiction to try his case, and, subsection (2) authorises a Magistrate to remand the accused to Police custody not exceeding 15 days, It further lays down that "if he (Magistrate) has not jurisdiction to try the case or send it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction". The word 'send' was substituted for `commit' by Law Reforms Ordinance, 1972, which came into force on 26th December, 1975, vide Notification No. Judl.-3 (27)/75.
Then according to subsection (3) "A Magistrate authorising under this section detention in the custody of the Police shall record his reasons for so doing".
Subsection. (4) is equally important and that too was substituted by Law Reforms Ordinance and is to the following effect:- "The Magistrate giving such order shall forward a copy of his order with his reasons for making it, to the Sessions Judge."
7. Section 190 of the Code is also relevant. It deals with cognizance of offences by Magistrates.
There are three methods in which a District Magistrate or Sub Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take-cognizance and. These are.
(a)upon receiving a complaint of facts which ,constitute such offence ;
(b) upon a report in writing .Of such facts made by any Police Officer ; (c)upon information received from any person other than a Police Officer, or upon his own knowledge or suspicion, that such offence has been committed as under :- "A Magistrate taking cognizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Sessions for trial."
The purpose why I have referred to this provision is that it is an accepted position that a Sessions case is to be tried by a Court of Session exclusively and in this sequence the Magistrate has no power to record any evidence.
7-A. Now I turn to section 344 of the Code, which deals with power to postpone or adjourn proceedings. According to subsection (1): "If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit by order in writing, stating the reasons therefore, from time to time postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable 'and may by a warrant remand the accused if in custody."
In between subsections (1) and (2), there appears the word remand' and is to the following effect: - - "Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time."
It is necessary to note in this connection that the 'remand' under this section is not one, which is given under section 167 of the Code.
Subsection (2) of section 344 of the Code makes it mandatory that "Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate".
The remaining portion of subsection (2) deals with 'reasonable cause for remand', which means that "if sufficient evidence has been obtained to raise a suspicion that the accused may have committed au offence and it appears likely that further evidence may be obtained by a remand".
Two words are very important in this section and those are 'inquiry' or 'trial', because the section reads---------..To postpone the commencement of, or adjourn any inquiry or trial, the Court may- -----.The word 'Court' is, therefore, to be read in context with the words 'inquiry' or 'trial'.
There is no room for doubt now that inquiry stage in a Sessions trial is over and it is also an accepted position that the triad of a murder case is to be held by the Sessions Court.
8. The next point to be considered is that if it becomes necessary pr advisable to postpone the commencement of trial in a Sessions case then the competent Court will be only that of the Sessions Judge and the accused shall have to be remanded by a warrant.
Subsection (2) of section 344 of the Code further clarifies this position, because under this provision, every order made by a Court other than a High Court shall be to writing signed by the Presiding Judge or Magistrate. The use of the words `Presiding Judge' is very significant, because it draws a distinction between the Presiding Judge and the Magistrate, and if the Legislature had no such distinction in mind, it could have easily used the words 'Presiding Officer'. In a Sessions case it will only be the Presiding Judge who will be competent to pass the necessary order under this section.
Here I would like to refer to Shadi Khan v. Muhammad Saleem and three others (PLD 1976 SC 38) where section 344 of the Code came under discussion, with special reference to the words 'from time to time' and 'for such time'. In this, the Supreme Court overruled the view taken in Saifur Rehman v. The State (PLD 1978 Lah. 314) and it was observed that 'it cannot be held as a proposition that the case cannot be adjourned sine die'.
Although the point under examination by me did not come before the Supreme Court for adjudication, nevertheless I do find some support from the aforesaid decision of the Supreme Court that in a Sessions case, the necessary adjournment whether by way of remand or otherwise under section 344 of the Code could only be allowed by the Sessions Court.
10. For the foregoing reasons, I am of the view that this petition is likely to succeed on the second point, raised by the learned counsel for petitioner. I, therefore, do not consider it necessary to give an authoritative pronouncement on the first submission of the learned counsel.
Counsel appearing on behalf of the State has not produced any material to show that in this case the proceedings were adjourned under the order of the Learned Sessions Judge.
I am, therefore of the view that in this case section 344 of the Code had been contravened and hence the detention of the petitioner is illegal. He should, therefore, be released forthwith on his furnishing bail in the. Sum of Rs. 50,000 (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Assistant Commissioner, Mianwali.