TARIQ PARVEZ KHAN, J.---Hamid Khan son of Mir Askar resident of Malik Abad Jamrud Khyber Agency made an application on 9-4-1997 to the assistant Political Agent, Jamrud requesting for issuance of warrant of arrest against Fazal Subhan alias Sheen Gul, the petitioner.
2. A warrant under the signature and seal of A.P.A. Was issued on 15-4-1997 and was sent for execution to the Deputy Commissioner, Peshawar who marked the same with his Endorsement to S.S.P., Peshawar for the service of the same. It appears that D.S.P. Faqir Abad, further endorsed, that the warrant be executed through S.H.O., Faqir Abad Police Station.
3. The petitioner was arrested and produced before Judicial Magistrate 1st Class, Peshawar who granted the remand in respect of the accused and directed that he be kept in judicial lock-up. The next date for the production of the petitioner was fixed as 26-4-1997. The learned Magistrate conscious of the fact that by virtue of the issuance of warrant by A.P.A. Jamrud and the consequential arrest of the petitioner, the petitioner is to be removed to the Tribal Area, as such he took cognizance of the matter under section 86-A, Cr.P.C. And requisitioned the case file for the purpose of his satisfaction that the removal of the arrested person is in accordance with law.
4. The perusal of order-sheet of the case file of Judicial Magistrate shows that the accused was first produced on 23-4-1997 for the purpose of proceedings under section 86-A, Cr.P.C. The date was then adjourned to 26-4-1997. On the said date the learned Judicial Magistrate recorded the statement of Hamid Khan respondent, on the basis of whose application warrant of arrest was issued against the petitioner. At the time of the statement, the petitioner side was given right to cross-examine him.
5. It was on the basis of material lying before the learned Judicial Magistrate including the statement of the complainant (Respondent No,2), that the learned Judicial Magistrate allowed bail to the petitioner observing that the proceedings under section 86-A, Cr.P.C. Are likely to consume more time.
6. Aggrieved from the order of grant of bail pending proceedings under section 86-A, Cr.P.C.
Respondent No,2 Hamid Khan filed a Revision/cancellation application in the Court of learned Sessions Judge, Peshawar. The case was entrusted to Mr. Fayaz Ullah Khan, Additional Sessions Judge, Peshawar who vide his order dated 19-6-1997 recalled the order dated 30-4-1997 of the Judicial Magistrate whereby bail was allowed.
7. In the instant application, the petitioner has prayed for his release on bail till the final disposal of 86-A, Cr.P.C. Proceedings pending before the Court of Judicial Magistrate.
8. The learned counsel for the petitioner submitted that the learned Judicial Magistrate was vested with the power to grant bail to the, petitioner whereas the learned Additional Sessions Judge has illegally cancelled the bail so granted.
9. Learned State counsel and counsel appearing for the respondent No,2 opposed the release on bail of the petitioner on the ground that under section 86-A, Cr.P.C. The Magistrate seized of the matter cannot allow any interim relief.
10. The question, whether during proceedings initiated under section 86-A, Cr.P.C. The Court of a Magistrate is competent and has got the jurisdiction and power to release a person on bail has been earlier taken up and considered in two cases of this Court. In case of Hazrat Sher v. State (Cr.Misc.No,261 of 1990), learned Judge of this Court held that:-- "I am of the considered opinion that the Magistrate had the power to grant bail during the pendency of the enquiry under section 86-A, Cr.P.C."
' In the said judgment in para. 5, the then learned Advocate-General has also conceded the legal position which is in the following words:-- "Learned Advocate-General submitted that the Magistrate had the powers to grant bail during the pendency of enquiry under section 86-A, Cr.P.C."
11. In another judgment, Zareef Khan v. Sessions Judge, Peshawar and others PLD 1995 Pesh. 118 the learned Judge while dilating upon the object of section 86-A, Cr.P.C. Has held as under:- "Object of S.86-A, Cr.P.C.---Primary object of S.86-A, Cr.P.C. Is to protect the liberty of a citizen of the country and to avoid his false involvement by someone in the tribal territory."
' It was further held that in the same judgment:- "86-A---Inquiry, nature of---Magistrate under S.86-A, Cr.P.C. Is invested with powers to hold inquiry in the same manner as if it was a Court within whose jurisdiction the offence had been committed .
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12. The purpose and object of section 86-A is primarily to see that a citizen of Pakistan living in the settled area is not unnecessarily harassed and removed to the Tribal Area to face the agony of the trial under the F.C.R. (Frontier Crime Regulation). This section was inserted in the Criminal Procedure Code vide Law Reforms Ordinance, 1972.
13. The Magistrate who is dealing with the case of a person arrested under section 85 and is to be removed in custody to any place in the Tribal Area has been vested with the powers to inquire into the matter and hear the case in the same manner and shall have the same jurisdiction and powers including the recording of evidence for the purpose of his satisfaction to see if on the basis of material/evidence recorded before him that the same is sufficient for the removal of the person so arrested to the custody of hierarchy functioning under the F.C.R.
' A bare reading of section 86-A, Cr.P.C. Shows that the Magistrate conducting proceedings under the section, acts not as a post office but is empowered to inquire and record evidence and to determine whether a person so arrested shall be removed from the settled District to the Tribal Area and he is to make himself satisfied that the evidence produced before him raises a strong probable presumption that the person arrested committed the offence mentioned in the warrant.
14. Section 86-A, Cr.P.C. Is to be read with section 86, Cr.P.C. A Magistrate who received a warrant from outside his territorial jurisdiction for execution of the same is vested with the powers to allow bail to such person against whom the warrant is sent provided the offences for which he is required are bailable.
15. The very warrant which is the subject-matter through which the arrest of the petitioner is sought shows that offence "
' The statement of Hamid Khan recorded during 86-A, Cr.P.C. Proceedings, his application dated 9- 4-1997 and the two deeds of the even date i,e, 28-7-1996 one pertains to an agreement in favour of Hamid Khan respondent and the other sale-deed in respect of two vehicles appears to be sufficient material before the learned Judicial Magistrate to exercise of grant of bail to the petitioner.
16. A Magistrate who is exercising the jurisdiction under section 86-A, Cr.P.C. Performs judicial functions. He has got the powers to come to the conclusion that on the basis of facts and circumstances and evidence recorded the person arrested shall not be removed to the tribal area, would mean he has got all other ancillary power including the grant of bail.
17. From the above discussion of facts and law I am of the view that the order dated 23-4-1997 was passed with jurisdiction and was lawful, whereas the order dated 19-6-1997 cancelling the bail was not warranted under the law. This application is allowed, order dated 19-6-1997 to the extent that bail of the petitioner was cancelled is set aside and that of the learned Judicial Magistrate dated 30-4-1997 is restored with the modification that the petitioner shall furnish fresh bail bond in the sum of Rs,3,00,000 (three lacs) with two sureties each in the like amount to the satisfaction of the same Judicial Magistrate and if he is on leave/vacation, any other Judicial Magistrate.