MALIK HAQ NAWAZ, J.---The petitioner was booked for an offence under sections 377/337-F, P.P.C. vide FIR No, 32/2015 dated 30/07/2015 of Police Station Yasin.
2. The challan of the instant case was submitted in the Court of ATC No,1 Gilgit. The learned trial Court on 17-02-2016 recorded statements of the father/mother of victim Hassan Akbar and some Jirga members in support of compromise and acquitted him for the charges.
3. Being aggrieved from the orders of learned Judge ATC No, 1 Gilgit, an appeal was filed by the State and the case came for hearing before a DB of this Court comprising of Mr. Justice Muhammad Alam and me.
4. After hearing the parties on 19-09-2016 following order was passed which is reflected in paras 6 and 7 of the judgment. Both paras are reproduced for the purpose of connivance.
5. We heard the parties and perused the impugned judgment. The learned trial Judge has accepted the compromise illegally and passed the judgment in excess of his jurisdiction. Firstly the offence was not one of "Terrorism" and the learned trial Judge wrongly and illegally took cognizance of the case under section 12 of ATA, 1997. The trial Court of jurisdiction even if no application under section 23 of ATA, 1997 has been filed by the either parties. The learned trial court instead of lying off his hand jumped into the case and assumed jurisdiction despite resistance from State counsel accepted compromise and acquitted the accused from charges on the same day by accepting the petition under section 265-K, Cr.P.C., which was seemingly invited by the Judge and disposed within hours of its submission, which shows that the urgency shown was because of some extraneous considerations and not to advance the cause of justice.
6.In view of above, we accept the appeal filed by the State and set aside the impugned judgment of Anti Terrorism Court Gilgit dated 17-02-2016. The accused/respondent is present in Court, who is taken into custody and committed to judicial lock up. However, from the contents of FIR, the provisions of section 6/7 of ATA are not attracted, we order that the same be deleted from the challan and we transfer the case from the Anti-Terrorism Court Gilgit to Court of learned Sessions Judge Ghizer for assuming adjudication and to start trial of the accused. After hearing the parties the following short order was announced on 19-12-2016, which is also reproduced as under:-- "This order is crux of our detailed judgment which will follow on separate paper.
We have accepted this appeal partly. We remand the case back to the Court of Session Judge Ghizer. Impugned judgment and acquittal order stands set aside. Accused, who is present in the Court, is directed to be taken in custody and was accordingly taken into custody. We are direct the police, who took the accused in custody, for presenting him before the Registrar Chief Court, who should grant committal order of the accused for his detention in the District Jial Ghakuch Ghizer. Learned Court of Sessions Judge Ghakuch is directed to resume the trial of the case afresh as in our opinion trial of the case conducted by the Anti-Terrorism Court was on the wrong premises of law.
Appeal allowed accordingly. Full judgment follows on separation paper."
5. As a consequence of above order/judgment the accused was taken into custody and was sent to judicial lockup to face trial.
6. The learned counsel for the petitioner filed the instant bail petition before this Court and in the above bail application in para. 7, it was stated that accused/petitioner is in judicial lockup without remand since his committal. Although the learned counsel at the time of preliminary hearing did not press this crucial point but in the interest of justice, it was thought proper to call the remand papers from the jail authorities and following order was passed on 01.12.2016.
'Heard.
Admitted for regular hearing. The contention raised at bar needs consideration. Superintendent Jail Ghizer is directed to appear in person along with the remand record of accused Zaheer-ud- Din son of Naseer-ud-Din resident of Barkulti, nominated accused of FIR No,32/2015 dated 30.07.2015 of Police Station Yasin. Order of the Court be conveyed to Superintendent Jail Ghizer on telephone as well as through fax. Put up tomorrow on 02.12.2016 for arguments."
9.On 02.12.2006 when the case was called one ASI Naeem Wali, appeared in the Court, though not in time but he chose his own time of about 10.30 a.m. On appearance of ASI Naeem Wali along with remand papers, following order was passed and the case was adjourned for 05.12.2016.
"The case was called at 9:30 a.m. but none was present in compliance of the order of this Court dated 01.12.2016 which were conveyed to Superintendent Jail Ghizer, by the Registrar of this Court on telephone as well as through fax. The case was adjourned till 10:30 am.
At 10:30 am when the case was again called none was mark present and when the order sheet was being dictated, one ASI namely Naeem Wali appeared in person along with the accused and record of the remand papers. He was asked to explain the reason of late appearance in the Court, he stated that due to tyre puncture of the vehicle he became late but in the same breath he resiled from his statement and stated that he has made a false statement in Court.
On 01-12-2016, Superintendent Jail Ghizer was directed to appear in person and as evident from the record the order was faxed to him at 01:05 p.m. which were found available in the remand file of accused Zaheer-ud-Din.
It appears that Superintendent Jail Ghizer willfully defy the order of this Court and did not bother to appear in Court. A show case notice is issued to the Superintendent Jail Ghizer, to explain as to why contempt proceeding should not be issued against him for willful defiance of the order of this Court. Superintendent Jail Ghizer is directed to appear in person on 05-12-2016 at 9:00 am along with reply.
Case to come up on above fixed date for further proceedings."
8. Today Dy. Superintendent Jail is present in person. The remand papers were retained by me in the Court on 02-12-2016. From perusal of remand papers it appears that on 20-09-2016, the accused was committed to judicial lockup for further proceeding and his production before the Court and short order directing to learned Sessions Judge to resume trial of the case was also made a part of committal order. The Jail authorities kept the accused in judicial lockup without trial and without obtaining any remand.
9. As per procedure provided under section 25 of Anti-Terrorism Act, 1997, the record of the disposed off case is submitted to Chief Court within 03 days after announcement of judgment. It seems that the staff of judicial Branch of this Court did not bother to transmit the record of the trial Court to learned Sessions Judge Ghizer and Dy. Superintendent Jail Ghizer even at his own did not produce the accused before the trial Court for obtaining remand.
10. No remand of the accused has admittedly been taken after he was committed to judicial custody on 19-09-2016 on the order of Chief Court and his detention from 19-09-2016, till today was absolutely illegal. Illegal detention in jail after 19-09-2016 till today cannot be converted in to legal one under any pretext imagination. In this background section 344 of Code of Criminal procedure is reproduced as under:- "344. Power to postpone or adjourn proceedings.
1. If, from the absence of witness or any other reasonable cause, it becomes necessary or advisable to postponed the commencement of or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor from time to time, postponed or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused in Custody: Remand. Provided, that no Magistrate shall remand an accused person to custody under this section for a term exceeding 15 days at a time.
2. Every order made under this section by a Court other than a high Court shall be in writing signed by the presiding Judge or Magistrate."
11. The learned counsel for petitioner, when asked to cite any law case in support of his contention kept his lips tight and stated that the detention is illegal, therefore, no case law is required in this regard. The learned counsel was advised to go through the law case of similar nature cases reported in 1985 PCr.LJ 603, 1990 PCr.LJ 1831, PLD 1984 Peshawar 45 and 1979 PCr.LJ 1069.
12. The learned Dy. AG could not rebut the legal as well as factual position.
13. Be this, at it may, but no one could cure the damage done to the accused for his illegal confinement from 19-09-2016 to date and his illegal detention cannot be converted into legal one.
In this view of the matter no option is left with me except to release the petitioner on bail in his furnishing bail bond of Rs, 500000/- (Rs, Five lac) with two solvent sureties each in the like amount to the satisfaction of trial Court.
14. On 02-12-2016 a show cause notice was issued to Dy. Superintendent Jail Ghizer, who submitted his reply and showed his regret and remorse and placed himself at the mercy of the Court.
Contempt notice issued to him is withdrawn and he is directed to be careful in future. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.