Accused-petitioner Ayub was admitted to bail in a murder case by the learned Additional Sessions Judge, Haripur on 1-11-1990. At the request of Mst. Mehtab Jan widow of the deceased this bail was later on recalled by me on 2-6-1991 and the accused was committed to custody. An application has been moved on 13-7-1991 on behalf of the accused petitioner that after 2-6-1991 no judicial remand for custody of the accused has been obtained under section 344, Cr.P.C. And the petitioner is under illegal detention since thereafter.
2. I have heard Mr. Saeed Akhtar Khan, Advocate, for the accused petitioner, Mr. Abdul Hamid Qureshi, Advocate, for the lady complainant and Mr. Muhammad Aslam Khan, AA.-G. For the State.
A perusal of the record would indicate that on the cancellation of his bail on 2-6-1991 by this Court the accused was arrested forthwith. Thereafter, on 9-7-1991 the petitioner moved an application before the Ilaqa Magistrate that he has not been produced before any Court for obtaining a judicial remand as required by section 344, Cr.P.C. Since after his aforesaid detention. The learned Magistrate on this called an explanation of the Superintendent Jail. He made a report on 10-7-1991 and stated that since after the detention of the accused on 2-6-1991 he was not produced before any Court for remand.
3. In this background of the case it would be advisable to reproduce the text of section 344 of the Code of Criminal Procedure:--- "344. Power to postpone or adjourn proceeding.-- (1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone 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, postpone 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 if in custody.
Remand. Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen 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.
Reasonable cause for remand Explanation. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand."
This section connotes that in a given situation when it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it think fit, by an order in writing, stating the reasons, therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit and for such time as it considers reasonable, and may by a warrant, remand the accused if in custody. This section further states that no Magistrate shall remand an accused person to custody under this section for a term exceeding 15 days at a time and such an order shall be in writing and signed by the Presiding Judge or Magistrate.
4. In the instant case admittedly no remand of the accused under section 344, Cr.P.C. Had been taken after he was committed to custody on 2-6-1991 on the order of this Court. The petitioner's detention in jail without an order under section 344, Cr.P.C. Of a Court of competent jurisdiction would be, therefore, absolutely illegal. The learned counsel for the accused in this view of the matter has placed reliance on the following case-law as reported in 1985 P Cr. L J 603, 1990 P Cr. L J 1831, PLD 1989 Pesh. 43, 1979 P Cr. L J 1069 and an unreported judgment of this Court delivered by my brother Mr. Justice Nazir Ahmad Bhatti, J. On 23-9-1989 in Criminal Miscellaneous No.147 of 1989.
All these judgments cited at the Bar speak on the importance of the subject and are unanimous on the point that in case of absence of a proper remand order under section 344, Cr.P.C. By a competent Court the detention of an accused person shall be illegal.
5. The argument put forth by the learned counsel appearing on behalf of the complainant party, that an application like this should have been initially filed before the Court of a Magistrate is of no consequence. I am told that after the illegal confinement of the accused in custody for quite some time the local police has obtained his judicial remand on 9-10-1991 for the first time which had expired on 24-10-1991 and thereafter another order was obtained till 6-11-1991.
6. Be this as it may. But it would not be able to cure the damage which had been already done to the accused-petitioner by his illegal confinement in jail on and after 2-6-1991 and that period of illegal detention cannot be converted into a legal detention by subsequently obtaining a remand order on 13 9-10-1991 which had been in fact procured in view of the pendency of the instant petition before this Court. In this view of the matter, there would be no option with me but to release the accused-petitioner on bail, on his furnishing security bonds in the sum of Rs. One lac with two sureties each in the like amount and to the satisfaction of Ilaqa Magistrate.
7. Since the local police did not care to obtain orders for judicial custody of the petitioner from a Court of competent jurisdiction as required by law, the Inspector-General of Police, N.-W.F.P. May be asked to fix responsibility for the non-compliance of the mandatory provisions of law on the police officer who was required to do so and to proceed against him in the interest of service discipline in accordance with law-rules. 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.