' MUHAMMAD AHSAN BHOON, J.--- Through this constitutional petition, petitioner has challenged the impugned order dated 5-11-2008 passed by the learned Judge Anti-Terrorism Court-1, Multan, whereby, he refused the custody of respondents Nos.2 and 3 for the purpose of physical remand.
2. With the consent of both the learned counsel, this case is being decided as a Pacca case.
3. In support of this petition, learned counsel for the petitioner contends that the petitioner, being complainant of the case, is an aggrieved person within the meanings of law amended from time to time whereby complainant as well as aggrieved person has been granted right of appeal against acquittal; that the impugned order dated 5-11-2008 passed by the learned Judge Anti-Terrorism Court-1, Multan refusing physical remand of respondents No,2 (Muhammad Usman alias Naeema son Dof Jaffar) and No,3 (Rana Usma n son of Riasat Ali), is illegal as investigation was still in progress and recoveries were yet to be effected from them.
4. On the other hand, learned counsel for respondents Nos.2 and 3 has opposed the prayer made above by contending that under section 19(1) of the Anti-Terrorism Act, 1997, investigation of the case under the Act (ibid) is to be completed within a period of seven days and no remand beyond seven days can be granted; that the petitioner has no locus standi to challenge the impugned order as the same can only be challenged by a Law Officer or a Public Prosecutor and remand cannot be granted just to fill the lacuna of the prosecution. He has lastly contended that there is an apprehension of killing of respondents Nos.2 and 3 in a fake police encounter as earlier five co- accused were done to death by the police in such an encounter.
5. We have heard learned counsel for the parties and have also gone through the police record.
6. Brief facts of case F.I.R No,132 of 2008 dated 8-5-2008, offence under sections 302, 324, 353, 186, 427, 148, 149 P.P.C, read with section 7 of the Anti-Terrorism Act, 1997, was registered with Police Station Sarai Sidhu, Khanewal, on the written statement of the petitioner Zawar Hussain, wherein, it was stated that on the fateful day and time he along with other police officials was on patrolling duty at Pull Bagar when they received an information that some unknown persons armed with weapons forcibly snatched wheat from a tractor-trolley on a gun point; that on the receipt of said information, they attracted to the spot and saw, in the head-lights of police van, that eleven accused persons being armed with rifles amongst whom four were identified, were present on the road; that on seeing the police party, the accused persons crossed the police van and after a short while they started firing straight on the police van but the same was saved from their firing; that the petitioner and other members of the police party stopped the vehicle at some distance in front of U.B.L. Qataalpur Branch, when, suddenly, the said accused persons attacked the police party and made a straight firing which hit Akhtar Abbas and Fakhar Abbas constables amongst whom Akhtar Abbas died.
7. It has been averred in the petition that during the course of investigation petitioner and other witnesses appeared before the Investigating Officer who made statements wherein accused/respondents Nos.2 and 3 were specifically nominated being the real culprits, they were arrested; that they were joined with the investigation whereafter both of them went through the process of identification parade wherein they were duly identified by the witnesses, whereafter, the said respondents were produced before the concerned learned Court in order to get their physical remand, the said request was allowed and their five days physical remand was granted; that the police again produced them before the Court on 3-11-2008 for further nine days physical remand but two days remand was allowed; that they were again produced before the concerned learned trial Court on 5-11-2008 for further seven days physical remand as recovery of weapons of offence was yet to be effected from them and they were reluctant to get recovered the arms but vide impugned order dated 5-11-2008 passed by the learned Judge Anti-Terrorism Court-1, Multan, the said request was turned down and both of them were sent on judicial remand.
8. A bare perusal of the impugned order dated 5-11-2008 passed by the learned Judge Anti- Terrorism Court-1, Multan would show that the learned Presiding Officer, while refusing the physical remand, has not given any cogent reason and perhaps has lost sight of the fact that both the respondents No,2 (Muhammad Usman alias Naeema son of Jaffar) and No,3 (Rana Usman son of Riasat Ali), being suspects, were arrested and later on were identified as perpetrators of the heinous crime wherein one police constable lost his life while the other was seriously injured. It is pertinent to mention here that at the time of inspection of spot by the Investigating Officer, 125 spent cases of bullets were taken into possession by him but the recovery of weapons of offence was yet to be effected from the accused/respondents Nos.2 and 3. For the said purpose, the Investigating Officer applied for their physical remand while stating in the application that the said respondents/accused were hardened criminals and desperate offenders, so to fetch further evidence, their physical remand was required but, we are of the view, that without considering that aspect of the case physical remand was refused. We may observe here that grant or refusal of physical custody of an accused must be with judicious application of independent mind, which exercise, has not been done in the instant case.
9. Perusal of the police record reveals that respondent No,2 Muhammad Usman alias Naeema son of Jaffar is involved in eighteen criminal cases of heinous nature a list of which is available at page 24 of the police record and majority of these cases pertains to the offence of dacoity including murder and under the Arms Ordinance. Similarly, at page 23 of the police record a list of 22 criminal cases of heinous nature is also available against respondent No,3 Rana Usman son of Riasat Ali including dacoity etc. While passing the impugned order, the learned Special Judge has not taken into consideration this aspect of the case because, in our view, grant of further remand of the said respondents had become inevitable keeping in view their criminal antecedents. Even otherwise, a bare look at the impugned order would make clear that it is a non-speaking order as no plausible reason has been given in it to decline physical remand of respondents Nos.2 and 3 and it appears that the learned Presiding Officer did not bother even to have a glance at the police record. It reads as under:--- "Despite 7 days physical remand of accused no progress, at all has been shown. Request for further physical remand of accused Muhammad Naeem and Rana Usman is declined. Accused are remanded to judicial. Now they be produced in the Court on 15-11-2008."
10. As far as contention of learned counsel for respondents Nos.2 and 3 that no physical remand can be granted beyond seven days, has no force because provisions of section 21-E of the Anti- Terrorism Act, 1997 is a complete answer to the objection. To better appreciate the point mooted in this petition, it is imperative to quote here the said provision of law which reads as under:--- "21-E Remand.--- (1) Where a person is detained for investigation, the Investigating Officer, within twenty-four hours of the arrest, excluding the time necessary for the journey from the place of arrest to the Court, shall produce the accused before the Court, and may apply for remand of the accused to police custody, or custody of any other Investigating Agency joined in the investigation, for which the maximum period allowed may be fifteen days: ' Provided that, where an accused cannot within twenty-four hours be produced before the Court, a temporary order for police custody, or custody of any other Investigating Agency joined in the investigation nor exceeding twenty-four hours may be obtained from the nearest Magistrate for the purposes of producing the accused before the Court within that period.
(2) No extension of the time of the remand of the accused in police custody, or custody of any other Investigating Agency joined in the investigation, shall be allowed, unless it can be shown by the Investigating Officer, to the satisfaction of the Court that further evidence may be available and the Court is satisfied that no bodily harm has been or will be caused to the accused: Provided that the total period of such remand shall not exceed thirty days.
(3) The Court shall be deemed to be a Magistrate for purposes of subsection (1)." (emphasis supplied).
11. The above quoted provision of law , would show that the Legislature, in its wisdom, has provided fifteen days time for the purpose of physical remand but keeping in view the difficulties of investigation, proviso to subsection 21-E(2) of the Act (ibid) postulates that even period of physical remand can be extended for thirty days.
12. Even otherwise, Anti-Terrorism Act, 1997 is a special law and whenever there is a conflict between the ordinary and special laws it is settled proposition that provisions of special law would prevail having over-riding effect, whereas, in the present case there is no inconsistency between the provisions.
13. We may observe here that as the learned counsel for respondents Nos.2 and 3 has showed an apprehension that the said respondents/ accused may be murdered in a fake police encounter as they want to satisfy their personal venom because one police official had lost his life while the other received injuries in the occurrence in question, therefore, keeping in view the said apprehension we are inclined to direct the Investigating Officer of the case as well as Superintendent of Police (Investigation) concerned to adopt necessary measures to ensure safety of the lives of respondents Nos.2 and 3 coupled with the observation that if anything happens to them then both the said police officers shall be responsible for the harm caused to respondents Nos.2 and 3. So far as contention of the learned counsel for the respondents regarding locus standi of the petitioner is concerned, right of appeal has been granted under section 25 of the Act (ibid) to the accused as well as complainant or any other aggrieved person. In our considered view, the complainant who was a police officer, during performance of his official duty along with his police party, was fired upon by the accused/respondents Nos.2 and 3 in consequence whereof two police constables were seriously injured amongst whom one breathed his last. Admittedly, no alternate remedy is available to the petitioner to challenge the impugned order and that is the reason why the petitioner/complainant has challenged the same in the Constitutional jurisdiction of this Court.
14. In the above resume of facts and law, this writ petition is allowed, the impugned order dated 5- 11-2008 passed by the learned Judge Anti-Terrorism Court-1, Multan, is set aside and the Investigating Officer is directed to produce respondents No,2 Muhammad Usman alias G Naeema son of Jaffar and No,3 Rana Usman son of Riasat Ali before the learned trial Court who is directed to grant seven days physical remand to the Investigating Officer and pass a fresh order in accordance with law.