1. RAHMAT HUSSAIN JAFFERI, J.--- On 8-3-2007, the NAB authorities arrested petitioners Nos. 1 and 2 (hereinafter referred to as the petitioners) on the ground that they had abetted co-accused Tariq Jamil in the offence of corruption and corrupt practices. On the next day and within 24 hours of the arrest, the petitioners were brought before the Administrative Judge, Accountability Court for grant of remand. The learned Judge observed that no material with regard to the offence against the accused/petitioners was produced but in spite of that he granted remand up to 12-3-2007. On the said date, the Investigating Officer moved an application for extension of remand for fourteen days. The learned Judge observed that the accused/petitioners complained of maltreatment at the hands of NAB authorities and one of the petitioners Muhammad Waqar Abbasi shown his injuries on his person. The Judge referred the accused/petitioners to the medical officer for examination and report. Again, no material was placed before the Judge shoaling involvement of the petitioners in the case. However, the learned Judge granted remand up to 19-3-2007. After expiry of the remand period, the Investigating Officer produced petitioners before the Judge for grant of fourteen days' remand on 19-3-2007, and stated that substantial evidence was likely to be collected within few days. On the basis of such statement, remand was granted up to 22-3-2007.
2. After expiry of said period the Investigating Officer again requested for the remand for fourteen days. The position was same and the remand was granted up to 28-3-2007. From the perusal of the applications for obtaining remand, it appears that the petitioners made some admissions before the Investigation Officer and on the basis of such admissions the investigation was being carried out.
3. ' In these circumstances, the learned Advocate for the petitioners has stated that the prosecution has not collected any evidence against the petitioners; that there was no justification for arresting the petitioners; that thereafter the prosecution could not collect any evidence connecting the petitioners with the main co-accused; that the prosecution has simply relied upon the statements of petitioners before Investigating Officer which are inadmissible in evidence; that the main accused Tariq Jamil has been granted bail therefore on the rule of consistency the petitioners are also entitled for the said relief as their case is on better footing than that of co-accused.
4. ' Conversely, the. Learned DPGA has stated that the arrest of the petitioners was legal and proper; that the remand orders passed by the learned Judge were in accordance with law; that the confession of petitioners before the Investigating Officer is inadmissible. However, he has stated that on the information supplied by the petitioners the record was secured therefore the recovery of the record was in accordance with Article 40 of Qanun-e-Shahadat Order; that the said record is being scrutinized, which will connect the petitioners with the crime. He has further stated that if the bail is granted then the investigation would be hampered which will materially affect the investigation process. He has strongly objected to the grant of bail.
5. ' On queries as to which record was secured by the Investigating Officer on the information of the petitioners or that the Investigating Officer prepared any mashirnama in respect of such record, to which the learned DPGA frankly conceded that when the petitioners led the police to their office, the same was locked therefore the record was not collected. He has further conceded that as the Investigating Officer has not collected any record so far from any place on the information supplied by the petitioners therefore no mashirnama has been prepared.
6. From the above statements of the learned DPGA, it is clear that Article 40 of the Qanun-e- Shahadat Order is not applicable at this stage as the Investigating Officer did not recover any record on the information supplied by the petitioners. It might be applicable at some subsequent stage if some discovery is made on the information supplied by the petitioners. So far the Investigating Officer has neither collected any record on the information supplied by the accused nor any mashirnama has been prepared. As such, the prosecution has absolutely no material with them connecting the petitioners with the crime, except A the confession of the petitioners before I.O., which is inadmissible in evidence as per Article 40 of Qanun-e-Shahadat Order.
7. ' The allegation against the petitioners is of abetting the co-accused. The main accused Tariq Jamil has been granted bail by this B Court. In the circumstances, the abettor is also entitled to the concession of bail particularly in absence of any independent evidence collected, so far by the prosecution against the petitioners.
8. ' As regards the policy of remand, it is pointed out that the remand is granted after the arrest of the accused and the arrest is made during investigation. The investigation of a crime in respect of offences falling under P.P.C. And other laws is to be conducted under section 5 of the Code of Criminal Procedure (hereinafter referred to as "Code") that reads as under:--
5. Trial of offences under Penal Code.---(1) All offences, under the Pakistan Penal Code shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) Trial of offences against other laws.---All offences, under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
9. Thus under subsection (2) the offences under NAB Ordinance are to be investigated under the Code subject to provision of the Ordinance. A perusal of Ordinance reveals that no procedure is provided thereunder to deal with the process of investigation. On the contrary under section 17(a) of the Ordinance provisions of Code have mutatis mutandis been made applicable to the proceedings under the Ordinance, if they are not inconsistent with the provisions of the Ordinance.
10. Under the Code the investigation is carried out under Chapter XIV of Part V consisting of 23 sections from sections 154 to 176. After the arrest of the accused, if the investigation of the case cannot be completed within 24 hours and the custody of the accused is required, then the police are required to produce the accused before a Magistrate to obtain remand, as required under section 167 of the Code. Section 24(d) of the Ordinance deals with remand of the accused. The main difference between section 167 of the Code and 24(d) of the Ordinance is the period of grant of remand. As according to section 167 of the Code the maximum period of remand is 15 days, whereas in the latter case maximum period of police remand is 90 days. Thus the Investigating Officer is required to produce the accused before the Accountability Court within 24 hours; excluding the time necessary for journey from the place of arrest to the Court. After the accused is presented before the Court, the Judge is required to examine the allegation and evidence collected against the accused, justifying his arrest. For arriving at such conclusion, the Judge is required to examine the investigation papers and police diaries/Zimnies. The Investigating Officer is required to produce the copies of police diaries along with the letter of request for grant of remand of the accused. He is required to maintain the diaries in the format as provided under section 172, Cr.P.C. Which stipulates that the proceedings of the investigation are to be on day to day basis, showing the date, time, place or places visited and statement of the circumstances ascertained through investigation. Initially, the Judge shall see the diaries of 24 hours to ascertain as to what investigation was conducted by the Investigating Officer during those 24 hours after the arrest of the accused. If the Investigating Officer fails to produce such copies with the remand report it can reasonably be inferred that the entries in the police diaries were not in existence by that time and manipulation of entries in the diaries to fit in the circumstances of the case, which developed later on cannot be ruled out of consideration. The wisdom behind producing the police diaries is to eliminate all such manipulation, because once the diaries are produced in the Court, then they cannot be changed subsequently to fill the lacuna or create a new evidence. Therefore, the Judge should not entertain the remand reports or letters of request for grant of remand without receiving the copies of the police diaries or Zimnies and the same shall be preserved for futher reference at the time of trial. If the diaries do not show the date and time of making such diaries, then in the first instance, the same be returned to Investigating Officer to complete it so as to make them in conformity with the provisions of section 172, Cr.P.C. At the same time, he should be warned to be careful in future. If such mistake is again committed then, he should be dealt with according to law.
11. ' The Judge is required to give due attention to the complaint of maltreatment. If the accused has injuries on his person, it is the duty of the Judge to inquire as to how the accused had received the injuries before remanding him back to police custody. If he does not do so and passes an order of remand mechanically, his conduct is highly improper. The Judge, then is required to scrutinize the record and act of the police to see whether the act was legal, proper and formalities required by law had been complied with, for the simple reason that the right to personal liberty is one of the most precious rights of the subject, which is required to be very jealously guarded by the Court against any invasion. When the Judge is satisfied that the arrest of the accused was justified then question of remand to police or judicial custody arises. For that purpose the Judge required to look into the police diaries or Zimnies and police papers, satisfying himself whether there are grounds for believing that the allegation against the accused is well founded as the detention of a citizen by the police on mere suspicion is to be very strongly deprecated. It is brought to the notice of the Judicial Officers that the arrest of a citizen without any legal justification and his detention through unjustified remands besides being illegal creates a sense of injustice and insecurity in the minds of the people and no greater mischief than this can be imagined. The Judge should also see that there should be good and sufficient reason for remanding the accused to police custody instead of judicial custody. If no good or sufficient reason exists, then accused shall not be remanded to police custody. It is also pointed out that the Accountability Court Judge should have given due attention to the fact that some material during the extended period of remand should have been collected by the Investigating Officer involving the accused in the case justifying the grant of remand. For that purpose the Judge must see what previous order has been made in the case and the longer the accused has been in custody, the stronger should be the grounds required for further remand to police custody. If no such material is collected and the Investigating Officer did not conduct himself in accordance with law to pursue his investigation diligently and with speed, then in 'absence of such material the required demand cannot be extended.
12. ' It is pointed out that the Investigating Officer did not collect or produce any material before the Judge, connecting the petitioners with crime, but in spite of that the Judge granted police remand.
13. Under the law he was not justified to do so, hence, remand orders are illegal.
14. ' The order dated 12-3-2007 shows that one of the petitioners Muhammad Waqar Abbasi showed his injuries to the learned Judge thereafter he was referred to the medical officer for examination and certificate. The learned Judge should have perused the matter and to have obtained the required report and should have given due consideration to the said aspect of the case. It is pointed out that if the accused is maltreated by the Investigating Officer, then in all fairness the accused is not required to be remanded to police custody but is required to be remanded to judicial custody subject to fulfilling the conditions for grant of remand.
15. ' For guidance of Magistrate the Federal Capital and Criminal Circulars laid down following principle's in the matter of granting remands. With necessary changes, the Accountability Court shall follow the said principles:---
(1) Under no circumstances should an accused person be remanded to police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of the inquiry. A general statement by the Officer applying for that remand that the accused may be able to give further information, should not be accepted.
(2) When an accused person is remanded to police custody, the period of the remand should be as short as possible.
(3) In all ordinary cases in which time is required by the police to complete the inquiry, the accused person should be detained in magisterial custody.
(4) Where the object of the remand is merely the verification of the prisoner's statement, he should be remanded to magisterial custody.
(5) Any prisoner who has been produced for the purpose of making a confession and who has declined to do so, or made a statement which is unsatisfactory from the point of view of the prosecution should in no circumstances be remanded to police custody.
16. ' In the case of Ghulam Sarwar v. The State 1984 PCr.LJ 2588 the question was thoroughly examined and it has been observed at page 4 as under:-- ' The High Court rules contain the necessary instructions. The superior courts have also laid down principles in this behalf for the guidance of subordinate Courts. It is really unfortunate that the Magistrates are playing with the liberty of human being in routine. They think as if they are accountable to none. For their guidance, I propose following principles, which are in accordance with law, High Court Rules and Orders and case law laid down by superior Court.
17. ' During first 15 days, the Magistrates may authorize the detention of the accused in judicial custody liberally but shall not authorize the detention in the custody of the police except in strong and exceptional grounds and that too, for the shortest possible period.
(2) The Magistrate shall record reasons for the grant of remand.
(3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. To the Sessions Judge concerned.
(4) After the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case, the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety.
(5) After the expiry of 15 days, no remand shall be granted unless, the application is moved by the police for the grant of remand/adjournment.
(6) The application moved by the prosecution/police after the expiry of 15 days of the arrest of the accused, be treated as an application for adjournment under section 344, Cr.P.C.
(7) Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted.
(8) The Magistrate shall not grant remand/adjournment in the absence of the accused.
(9) The Magistrate should avoid giving remand/adjournment at his residence.
(10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment/remand.
(11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same.
(12) The Magistrate shall examine police file before deciding the question of remand.
(13) If no investigation was conducted after having obtained remand, the Magistrate shall refuse to grant further remand/ adjournment.
(14) The Magistrate shall not allow remand/adjournment after 2 months (which is a reasonable time) of the arrest of the accused unless it is unavoidable.
(15) In case, complete challan is not submitted, the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses.
(16) If the challan is not submitted within 2 months, the Magistrate shall report the matter to the Sessions Judge of the District and also bring the default of the police to the notice of Superintendent of Police of the District.
(17) The Magistrate shall not grant remand mechanically for the sake of co-operation with the prosecution/police.
(18) The Magistrate shall always give reasons for the grant of remand and adjournment.
18. ' The above principles can also be followed by the Accountability Court with necessary changes and subject to the provisions of the Ordinance while granting the remand to the accused persons.
19. ' On perusal of remand proceedings, it is manifest that the learned Judge has not conducted himself in accordance with law in granting the remand of the petitioners therefore the Accountability Judge should be careful in future while granting remand to the accused persons.
20. ' Above are the reasons of our short order dated 26-3-2007 by which we had disposed of the petition in the following manner:- "Heard advocate for the petitioners, DPGA and perused the record of the case very carefully.
21. ' For reasons to be recorded separately, bail is granted to the petitioners Nos. 1 and 2 (hereinafter referred to as petitioners) in the sum of Rs,5,00,000 (Rupees five lacs only) each on furnishing solvent surety with PR bond in the like amount to the satisfaction of the Nazir of this Court. The petitioners are directed to cooperate with the police in the investigation. The prosecution is also at liberty to move application for cancellation of bail if some tangible evidence is collected against the petitioners.
22. ' The learned DPGA has stated that the petitioners' passports may be ordered to be deposited with the Nazir of the Court so that they may not leave the country. The learned Advocate for the petitioners has stated that petitioner No,1 is businessman therefore he has to go abroad for his business trips. He undertakes that whenever he intends to leave the country, he will seek permission from the Court. As regards the petitioner No,2 Muhammad Waqar Abbasi, the learned Advocate for the petitioners has stated that he is a public servant therefore he cannot leave the country without obtaining the permission from the concerned department in the circumstances, the petitioner No,1 is directed to obtain permission from the Court whenever he leaves the country.
23. ' The learned advocate for the petitioners has stated that the petitioner No,2 Muhammad Waqar Abbasi is an A.S.I. Therefore he cannot arrange surety of Rs,5,00,000, hence his surety amount may be reduced to Rs,3,00,000 (Rupees Three Lacs only) Order accordingly.
24. ' The petition is allowed in the above terms."
25. ' A copy of the Judgment be sent to Accountability Courts Karachi and Hyderabad for information and compliance.