' GHULAM MUSTAFA MENGAL, J.---This criminal bail application under section 497, Cr.P.C. Has been filed by the applicant General (R) Syed Pervaiz Musharraf for grant of bail in case F.I.R. No,26 of 2009, dated October 13, 2009 under section 302/34, P.P.C. Registered with Police Station, Dera Bugti.
2. The facts of the case are that in pursuance of the order passed by this Court on October 7, 2009, the complainant Mr. Jamil Akbar Khan Bugti through Mr. Sohail Ahmed Rajpoot, Advocate submitted an application in Police Thana Dera Bugti on the basis whereof F.I.R. No,26 of 2009 has been registered on October 13, 2009, under section 302/34 P.P.C. In respect of the occurrence dated 25/26th August, 2006 wherein the Chief of the Bugti tribe and the President of Jamhoori Watan Party Mr. Muhammad Akbar Khan Bugti along with others were killed. It has been alleged that the applicant by conspiring with co-accused Ex-Prime Minister Shaukat Aziz, Ex-Federal Interior Minister Aftab Ahmed Khan Sharpao, Ex-Chief Minister, Jam Muhammad Yousaf, Ex-Governor, Owais Ahmed Ghani, Ex-Interior Minister, Shoaib Ahmed Nousherwani and the other government officials including the Provincial Cabinet and the government institutions got killed Akbar Khan Bugti and others through government machinery in the mountains.
3. In pursuance of above F.I.R., the applicant submitted an application for grant of bail before the Special Judge, Anti-Terrorism Court-I, Quetta (the trial Court) which has been rejected on June 11, 2013 whereafter, the instant application has been filed before this Court.
4. Learned counsel for the applicant while referring to the order dated June 13, 2013 passed by the learned Special Judge, Anti-Terrorism Court, Islamabad stated that the applicant has been arrested in the instant case and his judicial remand was sought by Mr. Sardar Khan Inspector, a member of the Crime Branch Investigation Team. While arguing the application on merits, learned counsel stated that nothing incriminating is available on record to connect the applicant with the commission of the alleged offence and the case of the applicant falls within the ambit of further inquiry. Learned counsel further stated that the co-accused have already been granted bail and on the basis of rule of consistency, the applicant is also entitled for grant of bail.
5. Learned Special Prosecutor, Malik Sultan Mehmood and Mr.Shai Haq Baloch learned Assistant Advocate General, while opposing the application, stated that sufficient incriminating material is available on record connecting the applicant with the commission of a non-bailable offence punishable with death or imprisonment for life. According to the learned counsel the rule of consistency will not apply to the case of the applicant as, the co-accused are on interim bail, which was granted/extended by this Court and after remand of their applications to the trial Court, the matter is still pending before the trial Court for confirmation or otherwise.
6. Learned counsel for the complainant Mr. Sohail Ahmed Rajpoot, while adopting the arguments of learned Special Prosecutor further added that the applicant is not in custody within the territorial jurisdiction of this Court and as such, the bail application is not maintainable. Learned counsel stated that despite directions of the trial court as well as Special Judge, ATC Islamabad for shifting the custody of the applicant, so far, no efforts have been made by the police to shift the custody of the applicant within the jurisdiction of the trial Court.
7. Heard the learned counsel and perused the available record. Learned counsel for the applicant argued the application at length on merits, but we are not considering the same since the question of jurisdiction is involved, which we propose to attend herein below.
The learned trial Court has rejected the bail application of the applicant vide order dated June 11, 2013 on the following grounds:- "Keeping in view the above arguments record perused. The supplementary challan of the case submitted by Crimes Branch reflects that the name of petitioner along with others i,e, Owais Ghani (Ex-Governor of Balochistan), Shaukat Aziz (Ex-Prime Minister of Pakistan), Samad Lasi have been kept in column No,2 as to have been not arrested, further DSP Crimes Branch has submitted that the petitioner is not yet under arrest in this case, In view of the above stated facts and provision of law, it is held that application under section 497, Cr. P. C. Would only be competent when an accused is shown under arrest and detained by an officer Incharge of police station whereas, in light of clear statement made by the public prosecutor and DSP Crimes Branch before this Court the application under section 497 Cr. P. C.
Rejected being pre-mature."
The order dated June 13, 2013 of the learned Special Judge, Anti-Terrorism Court, Islamabad, reads as follows:-- "Sardar Khan IP Crimes Branch Quetta Balochistan has moved an application seeking judicial remand of the accused on the ground that accused is already in sub-jail in case F.I.R. No,131/2009 under section 344/34 P.P.C. Read with section 7 ATA of Police Station Secretariat Islamabad, The request seems genuine, hence accepted. Accused, though has not been brought today before the Court due to security problems, be kept in judicial lock-up and be produced before the court on 27-6-2013. However, Investigating Officer is directed to make necessary arrangements for transfer of the accused at the earliest."
8. Subsequent to the above orders, supplementary challan has been submitted against the applicant before the trial Court. The trial Court has issued directions to the Investigating Officer to produce the applicant before it on July 30, 2013. The learned Special Judge, ATC Islamabad has also issued directions to the 1.0. To make necessary arrangements for transfer of the accused.
Though the learned Special Judge, ATC Islamabad has not specifically identified where the accused has to be transferred, it can only mean to transfer him to the jurisdiction of the trial Court at Quetta.
In view of the warrants of the applicant having been issued by the trial Court after the arrest of the applicant in the instant case and submission of supplementary challan, the Investigating Officer was bound under section 173, Cr.P.C. To forward the custody of the applicant to the trial Court.
9. Since both the Special Judge, ATC Islamabad and the trial Court have specifically directed that the applicant be transferred, we may refer to section 173(1)(a), Cr.P.C. Which reads as follows:-- "(1) Every investigation under this Chapter shall be completed, without unnecessary delay, and, as soon as it is completed, the officer Incharge of the police-station shall, through the public prosecution?
(a) Forward to a Magistrate empowered to take cognizance of the offence on a police-report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody [Emphasis added] or has been released on his. Bond, and, if so, whether with or without sureties."
' There are three essentials of a challan/report submitted by the police under section 173, Cr.P.C.
Before a trial Court, which includes description of the offence, production of the accused and the evidence to prove the offence. The trial Court can start the trial only when all these three are produced before it. Reference in this regard is made to the case of Arshad Hussain v. State, PLD 2001 Karachi 211, wherein it has been held as follows:-- "Substantially there are the following three essentials of a challan produced by the police before the trial Court, or a report under section 173, Cr. P. C. They include a description of the offence committed, production of the person who has committed the offence, and the evidence/witnesses to prove the offence. The trial Court can start trial only when all these three are produced before it. An investigation is not complete till the person, who committed the offence, is available with the investigating agency for production before the trial Court."
10. That under section 167, Cr.P.C. An accused required in more than one criminal cases when arrested will be deemed to have been arrested in all the cases registered against him. There is no legal bar for interrogating an accused person with regard to the allegations against him in another case. It is rather desirable that when a person required or accused in more than one cases or where more than one F.I.Rs, are registered against him is arrested and remanded to physical custody, then he should be interrogated about the allegations against him in all the cases.
Reference in this regard is made to the case of Razia Pervaiz v. Senior Superintendent of Police 1992 PCr.LJ 131.
' Though under section 167, Cr.P.C. Different cases against an accused can be investigated by keeping him at one place. However, once the investigation has been completed and challan/police report submitted under section 173, Cr.P.C, the physical custody of the accused has to be forwarded to the jurisdiction of the concerned Court. That once such custody has been acquired by the Court concerned, it can proceed with the trial and pass all ancillary orders including the grant of bail. The concept of considering the grant of bail to an accused after his arrest by a Court which does not has his physical custody is alien to the law.
11. In the present case the applicant has as yet not been produced before the trial Court. Section 497(1), Cr.P.C. Reads as follows:-- "When any person accused of non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, [Emphasis added] he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.
' The applicant though arrested in the instant case, has not yet been produced in custody/brought before the trial Court or within the territorial jurisdiction of the trial Court, therefore, the trial Court had rightly rejected the application as being premature. Since the applicant is not in custody within the jurisdiction of this Court, the application is not maintainable.
12. For the above reasons, the bail application is rejected. The applicant may repeat his bail application before the trial Court after shifting of his custody within the territorial jurisdiction of the trial Court, which the trial Court shall decide on its own merits accordingly.