MUHAMMAD TARIQ ABBASI, J.---This single order shall disposed of the above captioned petitions, as similar questions of law and facts are involved in the both.
2. The facts are that a case FIR No. 434 dated 25.12.2016, under Sections 324/109, P.P.C., at Police Station Batkhela, District Malakand, was got lodged by Majrooh Shahid Khan, with the precise allegations that Muhammad Riaz son of Abdul Haq had caused a firearm injury to him and that the said accused had committed the alleged occurrence, at the abetment of Riaz alias Rajoo son of Noor Hussain (present petitioner). In the said case, the petitioner was declared as a proclaimed offender, hence his perpetual non-bailable warrant of arrest was issued by the learned Sessions Judge/District Qazi, Batkhela, District Malakand. Umar Jan, Head Constable of Police Station Batkhela, District Kalakand, for execution of the warrants, had arrived at Jhelum and with assistance of the local Police, the present petitioner was arrested and produced before the learned Judicial Magistrate, Jhelum. In the said learned court, the proceedings under Section 86-A of Criminal Procedure Code (hereinafter referred to as the Code) were carried on and till completion of the codal proceedings for transfer of the petitioner, to the Police Station Batkhela, vide order dated 31.03.2017, his lodgment in District Jhelum was ordered. The petitioner, through an application under Section 86 of the Code, had requested the learned Sessions Judge, Jhelum, that while receiving bail bonds, he may be released, so that he may be able to approach the competent court at District Malakand, but the learned Sessions Judge, through order dated 05.04.2017, had declined the said request. Consequently, the matters in hand.
3. Under Article 246(b) of The Constitution of Islamic Republic of Pakistan, 1973, District Malakand has been declared as Provincially Administered Tribal Area. The said Article reads as under:--
246. Tribal Areas. In the constitution---
(a) "Tribal Areas" means the areas in Pakistan which, immediately before the commencing day, were Tribal Areas, and includes---
(i) the Tribal Areas of [Balochistan] and the [Khyber Pakhtunkhwa]; [*] (ii)the former States of Amb, Chitral, Dir and Swat; (iii)omitted *1 (iv)omitted * * *1
(b) "Provincially Administered Tribal Areas" means--- (i)the districts of Chitral, Dir and Swat (which includes Kalam), [the Tribal Area in Kohistan district] Malakand Protected Area, the Tribal Area adjoining [Mansehra] district and the former State of Amb; and (ii)Zhob district, Loralai district (excluding Duki Tehsil), Dalabandis Tehsil of Chagai District and Marri and Bugti tribal territories of Sibi district; and
(c) "Federally Administered Tribal Areas" includes (i)Tribal Areas adjoining Peshawar district; (ii)Tribal Areas adjoining Kohat district; (iii)Tribal Areas adjoining Bannu district; [(iiia)Tribal Areas adjoining Lakki Marwat district;] (iv)Tribal Areas adjoining Dera Ismail Khan district; [(iva) Tribal areas adjoining Tank district;] [(v) Bajaur Agency;
(va) Orakzai Agency;] (vi)Mohmand Agency; (vii)Khyber Agency; (viii)Kurram Agency; (ix)North Waziristan Agency; and (x)South Waziristan Agency.
Therefore, when in consequence of a warrant of arrest, issued by the learned court of the said area, the petitioner was arrested and brought before the learned Judicial Magistrate, Jhelum, he should have completed the proceedings, as required under Section 86-A of the Code, which speaks as under:-- 786-A. Procedure for removal in custody to Tribal Area. Where a person arrested under Section 85 is to be removed in custody to any place in the Tribal Area, 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.]"
4. Section 86 of the Code, prescribes a procedure, when an accused is arrested in the above mentioned circumstances. For convenience, the said provision is reproduced hereinbelow:- "86. Procedure by Magistrate before whom person arrested is brought. (1) Such Magistrate or District Superintendent shall, if the person arrested appears to be the person intended by the Court which issued the warrant direct his removal in custody to such Court: Provided that, if the offence is bailable, and such person is ready and willing to give bail to the satisfaction of such Magistrate, District Superintendent, or a direction has been endorsed under Section 76 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent shall take such bail or security, as the case may be, and forward the bond to the Court, which issued the warrant: [Provided further that, if the offence is not bailable or no direction has been endorsed under Section 76 on the warrant, the Sessions Judge of the Sessions division in which the person is arrested may, subject to the provisions of Section 497 and for sufficient reasons, release the person on an interim bail on such bond or security as the Sessions Judge thinks fit and direct the person to appear by a specified date before The Court which issued the warrant and forward the bond to that Court.]
(2) Noihing in this section shall be deemed to prevent a police-officer from taking security under section 76."
5. The learned Judicial Magistrate, Jhelum, through proceedings under Section 86-A of the Code had lodged the petitioner in District Jail, Jhelum and under Section 86 of the Code, the learned Sessions Judge, Jhelum was quite competent to exercise jurisdiction, as provided under the above mentioned second proviso to the above said provision i.e. Section 86 of the Code, but he had refused to exercise his powers.
6. In the above mentioned case, the petitioner was not the principal accused, rather cited as an abettor. Admittedly, at the time of commission of the occurrence, the petitioner was not available, at the spot. It is also evident from the record that Majrooh Shahid Khan son of Gull Zareen, the complainant of the above said case is an accused in FIR No. 17 dated 09.01.2013, registered under sections 395/412, P.P.C., at Police Station Sadder Jhelum, at the instance of Abdul Haq, wherein the present petitioner is a prosecution witness. In this way, the stance of the petitioner, that the above mentioned case, at District Malakand was got lodged with mala fide, in order to prevent the petitioner's party, from pursuing the case registered at District Jhelum, should not be thrown to winds.
7. All the above mentioned facts and circumstances, were sufficient for the learned Sessions Judge, Jhelum, to exercise jurisdiction, provided under second proviso to Section 86 of the Code, hence his refusal from exercising the said powers was totally unjustified.
8. Resultantly, the instant petitions are accepted, the order dated 05.04.2017, passed by the learned Sessions Judge, Jhelum is set aside and the application under Section 86 of the Code, preferred by the petitioner, is allowed. It is directed that subject to furnishing of bail bonds, amounting to Rs.2,00,000/-, with two sureties each, in the like amount to the satisfaction of learned Sessions Judge, Jhelum, he be released from the jail. The petitioner is directed that within 15 days from the release, he should approach the competent forum at Batkhela, District Malakand, failing which the law shall take its own course.