' SYED YAHYA ZAHID GILLANI, J.---Noor Jamal petitioner launched repeated legal resisting efforts from pillar to post for getting himself treated according to. Law codified in section 86-A, Cr.P.C.
Against his arrest and detention based on the warrant of Political Authorities at Bara, on the basis of letter addressed to Assistant Political Agent Bara bearing No,1498/PT Bara dated 3-6-2004 (copy on file). In these efforts, the judgment of this Court dated 30-9-2004 in Writ Petition No,1298 of 2004, order dated 14-9-2005 in Criminal Miscellaneous No,51 of 2005 with Criminal Miscellaneous No,52 of 2005 in Writ Petition No,1258 of 2004, judgment dated 21-12-2005 in Criminal Miscellaneous No,182 of 2005 and the judgment dated 22-9-2006 in Criminal Miscellaneous/Q.No,107 of 2006 were passed and their copies on record are worth perusal.
2. Ultimately, Kashif Nadeem Judicial Magistrate-II, Peshawar's order dated 4-1-2006, duly confirmed by the order of learned Sessions Judge, Peshawar dated 20-1-2007, prevailed, and Noor Jamal petitioner was directed under section 86-A, Cr.P.C. To be produced before the relevant Court under the FCR which had issued the non-bailable warrant of arrest against him. This order has been challenged in the present petition under section 561-A, Cr.P.C.
3. This petition instituted on 19-2-2007, was adjourned time to time. Finally, when it came up for hearing on 5-5-2008, Mr. Iqbal Ahmad Durrani Advocate for respondent No,2 informed this Court that the petitioner Noor Jamal has been released by the order of Political Authorities and a Jirga has been constituted under the provisions of FCR of customary resolution of the dispute.
4. Precisely, there are allegation of money dispute in between tribal men which allegedly motivated the abduction of Rehmat Khan about which a case was registered in the settled area at Police Station Badabher vide F.I.R. No,480 dated 28-4-2004 and a complaint was also lodged before APA Bara, Khyber Agency.
5. Since on the date of hearing the petitioner had been released and he was personally present in Court, Mr. Iqbal Ahmad Durrani, Advocate for respondent No,2 submitted that the petition has become infructuous and it may be dismissed accordingly. But learned counsel for the petitioner, Mr. Abdul Samad Khan advocate took a stern stance that his client spent more than two years in detention. He had repeatedly knocked the doors of lower forums and this Court for correct application of section 86-A, Cr.P.C. Mr. Justice Ijaz Afzal Khan, in his judgment dated 22-9-2006, specifically directed the District Revisional Court to decide his matter on merits and not to get refuge in the excuses that the petition has become infructuous. He added that the similar situation has now again emerged. According to this opinion, sicne the action against the petitioner was malicious and without substance, which could not be justified under section 86-A, Cr.P.C. After prolonging the detention of the petitioner to the maximum, he has been released to get the chapter closed without determination by this Court that the arrest and detention of his client was not justified under the law. He said that his client/petitioner is a young educated person who has future prospects of taking part in politics or to appear in competitive examinations for superior services. If his petition is not decided on merits, the order of the forums below will attain finality and would be a permanent impediment in his way being a stigma. He, therefore, prayed for examination of the record and decision on merits. Hence both the parties made their submissions on merits.
6. Learned counsel for the petitioner argued that the case in which the petitioner was arrested, was cooked up as abduction case of Rehmat Khan son of Khalo, from. The settled area, regarding which initial report was registered on 28-4-2004 at serial No,9 of the daily diary of Police Station Badabher, which was later on converted into F.I.R. No,480 of the same police station but the petitioner was not mentioned therein as an accused. Subsequently, a complaint was lodged before APA Bara on 2-12-2004 wherein the petitioner was named as an accused. Consequently the warrant was issued and he was arrested.
7. Since the petitioner was arrested from the settled area and he is the permanent resident of settled area, the process under section 86-A, Cr.P.C. Was compulsory. In this process, the forums below condemned the petitioner without providing him the desired full opportunity to defend himself because his application to summon the official witnesses with record, to augment his defence, was rejected and he had no control or power over the official witness to personally produce them in his defence.
8. Counsel for respondent No,2 replied that the petitioner wanted to prolong the proceedings and there was no need of summoning the official witnesses. Supporting the impugned orders of the trial and revisional Courts he submitted that they are perfect and in accordance with law.
9. Before proceeding ahead, a short review of the case-law is necessary to visualize the parameters of law attracted in this case. Section 86-A, Cr.P.C. Is reproduced below for ready reference.
"S.86-A. Where a person arrested under section 85 is to be removed in custody to any place in the tribal Areas, he shall be produced before a Magistrate within the local limits of whose jurisdiction the arrest was made, and such Magistrate in directing the removal shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be, including the power to order the production of evidence, as if the person arrested were charged with an offence committed within the jurisdiction of such Magistrate; and such Magistrate shall direct the removal of the arrested person in custody if he is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested committed the offence mentioned in the warrant."
10. The mechanism devised in this section, for all practical purposes, postulates a mini trial to determine existence or non-existence of a prima facie case to answer the question that whether the person against whom warrant has been issued by the Political Authorities for arrest in the settled area should be removed in custody for production before the Political Authorities or not.
11. It has been ruled in Ghulam Qasim v. The State reported in PLD 1992 Peshawar 83 that provisions of section 86-A, Cr.P.C. Are mandatory. Since, in this reported case it was ordered to remove a person to tribal territory in compliance with the warrant of arrest without having recourse to said section in letter and spirit, powers under section 561-A, Cr.P.C., were exercised by the High Court to.Quash the order.
12. In another case titled Zarif Khan v. Sessions Judge Peshawar reported in PLD 1995 Peshawar 118, the order of Sessions Jude Peshawar not being in consonance with section 86-A, Cr,P.C. Was interfered in petition under section 561-A,Cr.P.C. And set aside. In this case it has been held that primary object of section 86-A, Cr.P.C. Is to protect the liberty of a citizen and to avoid his false involvement by someone in the tribal territory and the Magistrate 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.
13. In yet another case, titled Haji Muhammad Sharif Khan v. S.D.M. And seven others reported in 1997 MLD page 152 (Peshawar), it has been laid down that the removal of a detenu in custody is to be ordered only if the Magistrate is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested has committed the offence mentioned in the warrant. With reference to the object of section 86-A, Cr.P.C. It has been observed in this case that this section has been enacted only to ensure that a citizen is neither harassed nor insulted nor blackmailed with the mala fide use of hierarchy, that sits away from the territorial jurisdiction of the normal course of law and for beyond the applicability of normal and civilized laws of the land.
14. It has been emphasized in the case Fazal Subhan v. The State reported in PLD 2006 Peshawar page 1 that a Magistrate conducting proceedings under section 86-A, Cr.P.C. Would not act as a post office but was empowered to inquire and record evidence to determine whether the person arrested should be removed from the settled district to tribal area and he was to satisfy himself with evidence produced before him that it raises a strong and reasonable presumption that the person arrested has committed offence mentioned in the warrant. Likewise it has been laid down in the case of Muhammad Abdullah v. Government of Punjab reported in PLD 2007 Lahore page 593 that a Magistrate would direct removal of the arrested person under section 86-A, Cr.P.C. If he is satisfied that the evidence produced before him shows that there is a strong and powerful presumption that the arrested person has committed the offence. During this process the Magistrate is also empowered to decide that whether proper section of law has been applied or not.
15. In the instant case, the Magistrate has recorded the statement of complainant Khalo Khan who charged the petitioner Noor Jamal for abduction and detention of his son Rehmat Khan. He produced two witnesses namely Gulmat Khan and Misri Khan, who were allegedly sent by him to the tribal territory where they had allegedly seen Rehmat Khan detained by the petitioner and a few others. On the other hand, the petitioner got himself examined and testified his innocence on oath. He then prayed for summoning APA and Tehsildar Bara along with record for examination in Court as his defence witnesses. Besides the request made in the statement, an application was also moved to this effect but the application was dismissed by the Judicial Magistrate with the observations that there was no need for accused to produce any official witness at that stage because the Magistrate was not conducting full trial of the case and only an inquiry in terms of section 86-A, Cr.P.C. Was being carried out. It appears that the Magistrate was under the impression that he was to conduct an inquiry of summary nature. He attached much significance to the oral statements of P.Ws. Produced by the complainant, without caring that a few oral statements could be arranged to involve any person in such a case for any motive, to harass, insult, as indicated in the case reported in 1997 MLD page 152 (ibid). In this state of affairs, examination of the desired defence witnesses, along with the record, could help the Magistrate to reach up to a fair and judicious conclusion.
16. Reverting back to the above cited case law, the ruling of Honourable Superior Courts have well interpreted that the Magistrate would not act under section 86-A, Cr.P.C. As a post office. He is empowered to inquire and determine strong probable presumption about the guilt of arrested person and for that matter; an impartial and thorough inquiry is necessary.
17. From the above discussed case-law it, is abundantly clear that during hearing of case under section 86-A, Cr.P.C. 'the Magistrate is bound to satisfy himself about the alleged guilt of the arrested person on the basis of evidence to be recorded by him. By no stretch of imagination it can be concluded that evidence to be recorded by Magistrate would be one side evidence. Providing equal opportunity of producting evidence to both the parties is the legal requirement under section 86-A, Cr.P.C., coupled with the earnest command of principles of natural justice. It would be utter disregard to the established canons of justice if one party is given full opportunity of producing evident of its choice but the opposite party is refused such opportunity without there being valid reasons.
18. I am of the opinion that the ground of Magistrate to refuse request of the petitioner to summon APA and Tehsildar Bara in the witness box, with relevant record, was too weak, unjust and palpably not balanced on the judicial scale. There was no reasons of delay because offices of APA or Tehsildar Bara were not far away and their attendance could be procured within a reasonable time. Moreover, no doubt, the Magistrate was not conducting the trial, but still he had to decide the important issue of removal of the arrested person to political authorities, subject to existence of strong prima facie case, where he was to be dealt with by heirarchy where normal and civilized laws have not been extended, as beautifully explained in the judgment of Peshawar High Court reported in 1997 MLD Peshawar 152 (ibid).
19. In short, by refusing to summon official defence witnesses of petitioner, the Magistrate has denied the petitioner a vested right to defend himself and to be treated equally against the complainant party and he has been seriously prejudiced.
20. Albeit, after long detention of more than two years, now the petitioner has been set at liberty, but since his removal in custody to tribal authority was not based on strict compliance of provisions of section 86-A, Cr.P.C. As interpreted by superior Courts in the case law discussed above, the impugned orders of the two Courts below are found to be not in accordance with law and liable to be set aside under section 561-A, Cr.P.C. To prevent the abuse of process of Court and to secure the ends of justice. Consequently the petition is accepted and the order is accordingly.