AAMER FAROOQ, C.J. -The petitioners are accused persons in case FIR No.1161/2024, dated 25.10.2024, under sections 148, 149, 186, 353, 506 (ii) PPC, read with section 7 ATA, 1997, Police Station Aabpara, Islamabad. They are aggrieved of the order passed by Judge, Special Court-I (Anti- Terrorism), Islamabad, whereby physical custody of 03-days has been granted to the police.
2. Learned counsels for the petitioners, inter alia, contended that the reasons which prevailed with the Special Court-I, Anti-Terrorism, Islamabad while allowing physical custody to the police are against the settled principles laid down by this Court in various cases, including one by this Court in case titled The State through Advocate General, ICT versus Additional Sessions Judge and two others (2023 PCr.LJ 83).
3. Learned Deputy District Public Prosecutor, Islamabad, inter alia, contended that since recoveries ought to be effected from the petitioners, hence order was passed, granting physical custody to the police. It was submitted that petitioners are nominated in the FIR and are directly implicated as well as assigned with separate and significant roles, hence recoveries are to be effected from them.
4. Submissions by the parties have been heard and the documents placed on record examined with their able assistance.
5. The background leading to the filing of the instant petition has been mentioned hereinabove.
The order dated 29.10.2024 has been called in question on the basis that the principles for granting physical custody as contained in the High Court Rules and Orders as well as 2023 PCr.LJ 83 supra have been violated. This Court in the referred judgment, after examining the entire case law on the subject, laid down principles for the grant or refusal of physical custody. The examination of the impugned order shows that the said principles have not been taken into account, hence the order against which the instant petition has been filed is legally not tenable. It is also noted with regret that perhaps the rule that every time when physical custody is granted to the police, order is to be remitted to the Sessions Judge for information and perusal has not been followed which should be complied with in letter and spirit as the Sessions Judge exercises supervisory jurisdiction with respect to all the courts under its jurisdiction and also that the Court acts as a check mechanism.
The order for grant of physical custody is not to be taken lightly inasmuch as liberty of a person is involved and there has to be application of mind while deciding the request of police authorities. In this regard, the police authorities are also to make specific request as to why physical custody of a person is required. As noted, the impugned order does not comply with the requisite law, hence is not tenable.
6. For the above reasons, the instant petition is allowed and impugned order dated 29.10.2024 is set-aside. The above are the other reasons of our short order dated 31.10.2024.