' Through instant criminal revision application, DSP Razi Khan Almani, Investigating Officer has sought the following prayers:--
(a) That this Hon'ble Court may be pleased to set aside the impugned remand order dated 12-3- 2014 passed by the learned Judge Anti-Terrorism Court Hyderabad.
(b) That this Hon'ble Court will further be pleased to direct the learned Anti-Terrorism Court Hyderabad to grant further remand of Sikandar Ali Lashari in police custody."
2. Relevant facts spelt out from instant revision application are that on 19-2-2014 brutal murder of a young boy namely Aqib Hussain son of Khalid Hussain Shahani, the District and Sessions Judge, Jacobabad, was committed on road leading to Niaz Stadium Hyderabad and such F..I.R. Was lodged by one Hunain Tariq at Police Station GOR, Hyderabad, vide Crime No. 12 of 2014, under sections 302, 114, 109, 34, P.P.C., sections 6/7, A.T.A.
1997.
3. During the investigation one Malook who remained cook of Mr. Sikandar Ali Lashari, the then District and Sessions Judge, Mithi, was taken into custody as suspect accused and from his statement and interrogation and the CDRs of accused Sikandar Ali Lashari and his driver More Chana collected, during investigation, it has, transpired that accused Sikandar Ali Lashari is involved in the above crime coupled with the motive of commission of the offence as his daughter Miss Keenjhar and the deceased Aqib Hussain were in love affairs with each other. In view of the evidence collected during the investigation, interrogation of accused Sikandar Ali Lashari, the then District and Sessions Judge, Mithi and his family members were required to be made, hence the Senior Superintendent of Police Hyderabad vide letter No. PB/2938 dated 3-3-2014 requested the Hon'ble High Court of Sindh, at Karachi, to accord permission to interrogate accused Sikandar Ali Lashari and his family members along with his Driver More Chana, which permission was accorded by the Hon'ble Chief Justice of Sindh High Court Karachi as is evident from the letter No RHC/PA/1088 dated 3-3-2014, issued by the Registrar of High Court of Sindh, Karachi.
4. On 12-3-2014, the applicant submitted application under section 21/E of A.T.A., 1997 to the learned Judge Anti-Terrorism Court Hyderabad requesting for grant of further remand of accused Sikandar Ali Lashari in police custody, but the learned Judge without appreciating the circumstances of the case and the provision of section 21/E of A.T.A., 1997 in its true perspective, instead of granting remand of accused Sikandar Ali Lashari in police custody, has granted his remand in judicial custody for 7 days. It is also pleaded that the impugned order, would affect the process of investigation of this crime for the reasons that more evidence is to be collected with the cooperation and disclosure of Sikandar Ali Lashari and statement of his daughter Miss Keenjhar, whose whereabouts are known to accused is also to be recorded.
5. Mr. Raja Mir Muhammad advocate filed his Vakalatnama, taken on the record, advanced his arguments before this Court, representing the accused Sikandar Ali Lashari. Conversely, joint vakalatnama of number of advocates filed for the applicant/complainant is also taken on the record. Mr. Pir Asadullah Rashdi advocate advanced his arguments for the complainant side. Mr. Shahid A. Shaikh, A.P.G. Represented the State. We have considered the arguments advanced by both sides and perused the available record with their assistance.
6. The learned A.P.G. Submits that the Investigating Agency has to make recovery of mobile phone containing IMEI number, CDR and SIM etc, which shows that the accused was in contact with his accomplices. It is next contended that the deceased Aqib Hussain Shahani was brutally assassinated on a highway near Niaz Stadium, Hyderabad, in presence of his mother and sister due to his love affairs, developed for Miss Keenjhar, daughter of the accused and it is reported that she has been concealed or shifted to some unknown place and her whereabouts are only known by the accused. The Investigating Agency has shown grave concern about her life, honour and prestige from the hands of her father/accused, as there is every possibility that she will be killed on the name of "honour killing" being apple of discard, therefore, her recovery is essential at an earliest.
7. Pir Asadullah Rashdi advocate, representing the team of the advocates of complainant side, submitted that the learned A.T.C. Judge has shown his special generosity to the accused mainly on the reason that he is a Sessions Judge and paid him due respect, though he has not complained bodily or mental torture from the hands of police. It is next contended that the learned A.T.C. Judge on the next date i.e. 13-3-2014, by adopting discriminatory attitude, granted remand of police custody to co-accused Malook alias Saifal Malook and he has produced the copy of the said order, taken on record. Learned counsel has also drawn our attention to the order passed by the honourable Chief Justice on 5-3-2014 (at page-277 of the Court file), which is reproduced as under:-- "The I.O. May be required to explain instantly as to what disclosures have been made by Mr. Sikandar Lashari, persuading the I.O. To arrest him. As regards the 1.0's request for permission to examine Miss Keenjhar, the I.O may be directed to proceed to record her statement in accordance with law. DIGP Hyder Range is directed to ensure protection and security for Miss Keenjhar, so that no harm may come to her."
' Lastly, learned counsel submits that to facilitate the investigation in a transparent manner, without any discrimination, the trial Court be directed to grant the remand of police custody to the Investigating Agency.
8. Conversely, Raja Mir Muhammad advocate, heading the team of advocates for the accused, at the very outset submits that this Court has no jurisdiction as in view of subsection (6) of section 19 of A.T. Act, an Anti-Terrorism Court shall be deemed to be Magistrate for the purpose of subsection (5), which reads as under:--
(5) Where, in a case triable by [an Anti-Terrorism Court], an accused has been released from police custody [or custody of any other investigating agency joined in an investigation under section 169 of the Code, or has been remanded to judicial custody, [the Anti-Terrorism Court] may, on good grounds being shown by a Public Prosecutor or a Law Officer of the Government, for reasons to be recorded in writing, make an order for placing him in police custody [or custody of any other investigating agency joined in investigation] for the purpose of further investigation in the case."
' Learned counsel has also placed reliance on the following cases:--
(1) Muhammad Imran alias Sawan v. Special Judge, Anti-Terrorism Court, Multan and another (2007 YLR 155).
(2) Allah Nawaz and another v. The State (2010 M LD 1412).
(3) Muhammad Sabir Roshan v. The State (2000 PCr.LJ 1195).
9. In the case of Allah Nawaz (as supra) a Division Bench of this Court has held that neither revisional jurisdiction under sections 435/439, Cr.P.C., nor jurisdiction under section 561-A of the Code can be invoked to challenge an impugned order passed by the Anti-Terrorism Court, however, this does not close the chapter. If no adequate remedy is available or provided under the law, this Court can always use its constitutional authority under Article 199 of the Islamic Republic of Pakistan. It is further being held that Anti-Terrorism Act, 1997 being a sub-ordinate legislation cannot curtail the constitutional jurisdiction of this Court under Article 199 of the Constitution. It is also settled law that discretion is always available with High Court to treat any application or proceeding in appropriate cases, as application under Article 199 of the Constitution, therefore, this criminal revision application is treated as Constitutional Petition and decided accordingly (placitum "C"). The remaining two citations relied upon by the learned counsel for the accused, are not attracting in the peculiar circumstances of the present case.
10. We do agree with the contention of learned counsel that revision jurisdiction under sections 435/439, nor jurisdiction under section 561-A, Cr.P.C. Can be invoked to challenge the impugned order. However, keeping in view the dicta as laid down by this Court in the case of Allah Nawaz, relied by learned counsel for the accused, as mentioned supra, this is an appropriate case, in which extra-ordinary jurisdiction can be invoked under Article 199 of the Constitution, therefore, this revision application is considered as Constitutional Petition and decided accordingly.
11. The operating part of the impugned remand order is reproduced as under:-- "I have gone through the police papers and considered arguments of both the sides are relevant provision of the law. Earlier first remand for 7 days was granted on the ground of further investigation but the police papers show that till today only 164, Cr.P.C. Statement of one Abdul Saleem, Clerk of IInd Additional Sessions Judge is recorded (Photocopies attached). Even no diary after 5-3-2014 till 12-3-2014 is maintained to show that such and such investigation was conducted. Therefore, I am inclined to agree that his arrest and keeping in police custody will increase humiliation. Moreover, the accused has remained as Sessions Judge. Further remand, in police custody is therefore refused and the accused is ordered to be remanded to Judicial Custody, where he can be interrogated and identified in the identification parade and other investigation. If necessary his custody for a specific purpose and short period can be had. So far as section 21-E of Anti-Terrorism Act, 1997 is concerned, these are terrorists Acts of various kinds including anti-state activities, sabotage and espionage on international level but not the present one therefore section 21-E of Anti-Terrorism Act shall not strictly apply looking to facts and circumstances of each case. Remand, in judicial custody for seven days is granted".
12. We would like to evaluate and analyze the grounds upon which police remand was declined by the trial Court vide impugned order as follows:--
(i) First ground of impugned order was the failure of police to maintain police diaries and only statement under section 164, Cr.P.C. Of Abdul Saleem, clerk of II A.D.J. Was recorded; in this context, we are of the view that the trial Court without considering the sensitivity of issue, has acted in haste manner, while the learned court was competent to issue any strict direction or warning to the I.O. In this regard.
(ii) Second observation in favour of the impugned order; that if further remand is granted it will increase humiliation to the accused who remained as Sessions Judge. It is also mentioned that dozens of advocate appeared for accused and filed vakalatnama but only two of his choice were heard; the justification furnished by the court prima facie indicates that the trial Court was influenced from the crowd of advocates as well as from the status of the accused, and the question of increasing of humiliation does not arise at all as accused was already in police custody, therefore, the court should have focus upon the well-settled principle of law that nobody is above the law.
(iii) The other ground considered by the learned trial Court was that police has not permitted the family members and counsel for the accused to meet the accused. Record reveals that neither any verbal complaint was made by the learned counsel for the accused as well as his family members to the trial Court, nor such application was moved in this regard, and in case of alleged refusal, the grant of such permission lies with the trial Court and the learned counsel and family members of accused must have to approach the trial Court for such purpose.
(iv) The last ground was non applicability of provisions of section 21-E of A.T.A., holding that these provisions are for terrorist acts of various kinds including anti-state activities, sabotage and espionage on international level but not the present one, therefore, section 21-E of Anti-Terrorism Act shall not strictly apply looking to facts and circumstances of the case; in this regard, we are not agreed with instant findings of the learned trial court as admittedly, the accused has not made any complaint of bodily harm at the hands of the police, and investigations are still under process and prior to the conclusion of investigations such premature observations regarding non-applicability of section 21-E of A.T.A. 1997, are contrary to basic scheme of investigation.
13. From bare reading of the provisions of section 21-E(1) of A.T.A. 1997, it is clear that the remand of the accused would not be granted less than 15 days. Likewise in clause 2 of said section, it is apparent that remand can be extended if 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 ninety days.
14. Consequently, after considering the above circumstance and provisions of section 21-E of A.T.A., 1997, we are of the considered view that the trial court has failed to appreciate the request made by the applicant Investigating Officer for grant of further police remand coupled with certain grounds, without following the relevant provisions of section 21-E(1)(2) of A.T.A., 1997, therefore, impugned remand. Order dated: 12-3-2014 passed by the learned trial Court granting remand of accused Sikandar Ali Lashari in judicial custody instead of police custody is illegal, arbitrary and against the law, which will affect the smooth, investigation of the above crime, hence, the impugned order is hereby set-aside with the direction to the learned Anti-Terrorism Court to decide afresh the request made by the Investigating Agency strictly on merits and in accordance with law after affording fair opportunity of hearing to both sides. The Additional Registrar of this Court is directed to transmit and deliver the copy of this ,order through special messenger to the trial Court, instantly.