Javaid Khan petitioner was reported against with two others at Police Station Lodhran for having committed the murder of Khan Muhammad on the night between 24th and 25th December, 1981, in the vicinity of village Wahi Daud Khan. According to the prosecution the deceased was taken in grips by Farooq and Arif co-accused of the petitioner and the fatal blow was delivered to him by the petitioner with hatchet. Consequently a case was registered at Police Station Lodhran at the asking of Muhammad Ramzan complainant on the third day of occurrence. During the investigation the petitioner as well as his co-accused were arrested. Arif accused was admitted to bail by this Court, vide order dated 5th April, 1982 and Farooq was granted bail by my learned brother Muhammad Munir Khan, J., vide order dated 11th July, 1982. The petitioner was, however, declined the same relief by me on 2nd October, 1982.
2. The petitioner this time has come up for the grant of bail on the grounds that he is being detained in Jail since 18th December, 1981 and despite lapse of one year and five months neither the complete nor incomplete challan has so far been put in Court and that the last remand order for detaining the petitioner was obtained from the Ilaqa Magistrate on 18th November, 1982 thereafter he was neither produced in any Court nor his remand to judicial custody was obtained according to law, as such, his detention has become illegal, and thus he deserves to be released on bail.
3. Learned counsel for the State, on the other hand, has not disputed the facts narrated by the learned counsel for the petitioner but has opposed the grant of bail on the ground that the petitioner is accused of committing murder of Muhammad Khan by giving him fatal blow with hatchet, and the offence being punishable with extreme penalty, the case of the petitioner falls within the prohibitory clause of section 497, Cr. P. C.
4. 1 have considered the submissions of both the learned counsel with care, in the light of the relevant provision of law as well as the case-law cited at the bar.
5. The only question for determination in this case is whether the detention of the petitioner is illegal at present ? According to section 167 an accused who is detained in connection with the investigation of a case can be remanded to the police custody for a period of 15 days in the whole.
Thereafter, if the investigation still continues then under section 344, Cr. P. C. a Magistrate if he thinks that there exists reasonable cause to postpone commencement or adjourn, the inquiry or trial he may for reasons to be recorded commit the accused (including accused of an offence of murder) to custody from time to time not exceeding fifteen days, at time. The legal position has been elaborately explained by the Supreme Court of Pakistan in case Mahar Khan v. Yagoob Khan and anothher . The relevant observation is reproduced below with advantage :- "Para. 19: but it may be observed that in a case in which neither complete nor an incomplete challan (as envisaged by rule 25.26 of the Police Rules, 1934), has been submitted before a Magistrate, he cannot be assumed to have taken cognizance of the case under clause (b) of section 190 (1), Cr. P.
C., just as he would not be assumed to have taken cognizance of a case under clause (a) of section 190 (1), Cr. P. C. When no private complaint has been lodged before him. The result would be that in such cases the Magistrate would not have the power to remand the accused to custody under section 344 (1) of the Criminal Precedure Code."
6. The case of petitioner who is accused of the offence of murder has not so far been sent to Court of Sessions as contemplated by subsection (3) of the section 190, Cr. P. C. Of course, after the case has been sent to Sessions Court the detention of the petitioner could be ordered by the Sessions Judge. In the instant case it is admitted that neither complete nor incomplete challan as envisaged by paragraph 25.26 of Police Rules 1934 read with section 190 subsection (1), Cr. P. C. Has been submitted to the Court of the Magistrate and the question of sending the same to the Court of Sessions does not arise. It is regrettable that the last remand order obtained from Magistrate in respect of the petitioner dates back to 18th November, 1982 authorising detention of the petitioner till 1st December, 1982, and that in the absence of a complete or incomplete challan. After that, the petitioner was neither produced any Court not any remand order committing him to custody under section 344. Cr. P. C. Has been obtained. In view of the dictum laid down in above cited authority the detention of the petitioner after 1st of December, 1982 has become illegal.
7. It is more than clear from the above quotation that in the absence of the submission of a complete or incomplete challan the Magistrate is not empowered to pass a remand order under section 344 subsection (I) committing an accused to custody. But in the instant case no order whatsoever legal/illegal at all exits authorising detention of the petitioner in jail from lst December, 1982 onward, as has been indicated above. In the circumstances, I hold that at the present, detentioi of the petitioner in jail is illegal and I am left with no option but to admit him to bail subject to his furnishing security in the sum of Rs, 10,000 with two sureties in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Lodhran, and direct that as and when challan against the petitioner is submitted to the Magistrate and he decides to send the case to the Sessions Court he shall pass proper order for committing the petitioner to custody. This bail order shall remain valid till then.
This petition stands disposed of accordingly. 1981 SCM R 2671 1