ERUM SAJAD GULL, J.---Through this petition, the petitioner has impugned the order dated 28.05.2016 passed by the learned Additional Sessions Judge, Faisalabad whereby the petitioner was directed to be produced along with the record by the Investigating Officer before the learned Illaqa Magistrate for physical remand.
2. The learned counsel for the petitioner has contended that the order impugned is an illegal order as the petitioner was sent to the judicial lockup vide order dated 17.05.2016 passed by the learned Judicial Magistrate; that it was the prerogative of the learned ADPP to request for the physical remand of the accused but he never moved any application for the remand of the petitioner hence, respondent No,4Muhammad Sufyan has no locus standi to move the said application; that when the police does not require the accused and has not requested for any physical remand, then the said accused cannot be handed over to the police for physical remand. The learned counsel in support of his arguments has relied upon "Bahadur and another v. The State and another" (PLD 1985 Supreme Court 62), "Malik Hakim Khan v. The State and others" (2016 PCr.LJ 402) and "Abdul Hassan v. The State and others" (1969 SCM R 215).
3. Arguments heard and record perused.
4. The petitioner was sent to the judicial lockup by the order of the learned Judicial Magistrate on 17.05.2016 as the police did not require the petitioner for physical remand. While sending the petitioner to the judicial lockup, the District Public Prosecutor or any other representative 'of the State did not raise any objection. Admittedly, the order of the learned Judicial Magistrate dated 17.05.2016 has not been assailed by the State instead has been assailed by the complainant of the FIR in his private capacity. The law is clear as laid down under section 167, Cr.P.C. That a person in his private capacity could not apply for the police custody of an accused.
5. As reiterated above, instant petition is allowed and the order impugned dated .28.05.2016 passed by the learned Additional Sessions Judge, Faisalabad is set aside.