1. , JUDGMENT 0 IMAM ALI G. KAZI, J.--We propose to decide C.P. No.D-292 of 1991, C.P.No.D-325 of 1991, C.P. No.D-339 of 1.991 and C.P.No.D-502 of 1991 filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 and Cr. Misc. Application No.63 of 1991, Cr. Misc. Application No.77 of 1991 and Cr. Misc.
2. Application No.98 of B91 filed under section 491, Criminal Procedure Code by this common judgment as the point of law involved in these petitions are identical. These petitions, are in the nature of habeas corpus petitions.
3. The facts leading to the filing of above Petitions/Applications briefly stated are as under:- C.P.No.D-292 of 1991 (Mohammad Siddiq v. Province of Sindh and others) and C.P.No.D-325 of 1.991 (Mst.Lqbal Khatoon v. Province of Sindh and others).
4. These two petitions have been filed to question the manner of detention of Abdul Sattar Morio and Hatim s/o Abdul Sattar Sheikh, who were arrested on 3-2-1991 by Clifton Police after an exchange of fire wherein bne Agha Javed was killed. FIR No. 49 of 1991 under section 302/324, Oisas and Diyat Ordinance, 1990 and Section 333, Pakistan Penal Code relating to that incident,was registered at Clifton Police Station.
5. Petition No. D-292 of 1991 in respect .Of Abdul Sattar Morio was presented in Court on'5-3-1991 while the other Petition No. D-325 of 1991 in respect of Hatim Sheikh was presented in Court on 13-3-1991.
6. Petitioners complain that both of them after the arrest in above incident are kept in Police custody in the investigation of the said offences for a period exceeding 14 days as permitted by law and are being tortured by Police to extract their confessions. Detenu Hatim Sheikh has been kept in Police custody for a period in excess of one month and is being tortured by Police to extract his confession. The petitioners therefore prayed that the I custody of both the detenus be madq over to judicial custody and they be referred to Civil Hospital Karachi for examination, treatment and certificate for injuries caused to them by the Police while they have been in their custody.
7. During the course of hearing of these petitions, the Respondents claimed that both the detenus are notorious dacoits and were arrested after an encounter with Police wherein one Agha Javed was killed.
8. A report was also filled in Court stating that Abdul Sattar Morio, was arrested on 3-2-1991 under F.I.R.
9. No.49/91 registered under section 302/324, Oisas and Diyat Ordinance read with section 333, Pakistan Penal, Code and. F.I.R. No.51/91 registered under section 13-13, Arms Ordinance at Clifton Police Station. He was sent up for trial in the Special Court (Terrorist Activities), Karachi on 16-2-1991 vide charge-sheet No. 35 and 32 of 1991. It was further stated that he was also arrested in another case FIR. No.245 of 1990 under section 365, Pakistan Penal Code registered at Defence Police Station, Karachi and in that case he was under remand upto 15-3-1991. Lie is said to have been arrested on 9-3-1991 in the investigation of two other crimes registered under F.I.R. No.800/90 under section 365-A/34, Pakistan Penal Code and F.I.R. No.67/91 also under section 365-A/34, Pakistan Penal Code and remained in Police custody under the orders of remand till 24-3-1991 when he was sent up for trial in both the cases. He was again arrested on 24-3-1991 in the investigation of offence under section 302, Pakistan Penal Code registered under F.I.R. No.926/90 and was in Police custody under order of remand upto 4-4-1991. These cases are registered at Police Station, Ferozabad, Karachi.
10. It was stated that Hatim Sheikh was again arrested in the investigation of F.I.R. No.34, registered under section 365-A/34, Pakistan Penal Code on 25-3-1991. And Police obtained his remand thrice for period between 25-3-1991 upto 9-4-1991 from S.D.M., Liaquatabad and finally he was sent up for trial by Gulberg Police Station in the Special Court (Terrorist Activities)-1, Karachi.
11. C.P. No. D-339 of 1991 (Bilal Sheikh v. Govt. Of Sindh and others).
12. This Petition has been filed by the detenu through his mother Mst. Salma. According to the allegations made in the Petition, he was arrested on 5-2-1991 by C.I.A. Police and kept in custody at C.I.A. Centre upto 4-3-1991 where he was mercilessly tortured. He was kept in that Cell with the sole object of extracting a confession from him implicating top leadership of the Pakistan Peoples Party.
13. The Petitioner, however, was coerced to make confession implicating -himself as well as some other members of Pakistan Peoples Party and his friends who were made co-accused in the case.
14. He was produced on 5-3-1991 before the Court and on very first opportunity he filed a handwritten application informing the Trial Court that his confession was not voluntary and he had retracted from it. It is further complained that. ,while being in confinement in Central Jail Karachi, he was kept with "Ara Danda Bairi" and "Shackles" and was confined in a closed, .Ward. It is further complained that on 9-3-1991 the District Magistrate, Karachi (South) had passed an order. Authorising his detention for 30 days commencing from 9-3-1991 at Central Prison at Karachi under section 3(1) of the Maintenance of Public Order Ordinance, 1960. He was, therefore, additionally detained under such orders in the Central Jail Karachi. The Superintendent, Central Jail Karachi, iii violation of detention order, handed over his custody to one Mr. Ayaz Khan, Inspector C.I.A., Karachi, who brought him to C.I.A. Centre on 12-3-1991. Since then he is in their custody which necessitated filing of this Petition on 17-3-1991. The Petitioner has questioned the validity of the order of the dentition passed by District Magistrate, transfer of his custody from Central Jail to C.I.A. And his confinement with "Shackles" (Ara Danda Bairi). He has also sought relief for being treated for the hurt caused to him by Police. The Petitioner is however, facing a trial in the Court of Special Judge No.1 (Suppression' of Terrorist Activities) at Karachi.
15. C.P.No. D-502 of 1991.lAhmar Choudhry v. Govt. Of Sindh and other5 1.
16. This Petition has been filed. By detenu Ahmar Choudhry through his father Khalid Latif. According to the allegations made in this petition, the petitioner was arrested on 29-12-1990 by Sub-Inspector C.I.A. Police Karachi and kept in illegal confinement till 8-1-1991 when his arrest has been shown in the investigation of F.I.R. No.10/91 of Police Station Kalan Kot, Karachi. It is alleged that while he was in custody of C.I.A. He was inhumanly tortured and coerced to make a confession implicating himself, his friends and top-- leadership of Pakistan Peoples Party. Ultimately, he could not withstand such torture and made confession implicating himself in a number of murder cases which were according to the confession carried out at the instance of certain leaders of P.P.P. The detenu when produced before Special Court No.1 (Suppression of Terrorist Activities) retracted from the said confession and has been challaned in a series of cases and sent to Jail custody on 28-1- 1991. The petitioner while he was in jail under orders of the Trial Court was taken out by C.I.A. Police who obtained his remand to Police custody from District Magistrate Karachi (South). The petitioner has therefore filed this petition to question the order of remand passed by District Magistrate, Karachi (South); and his transfer from Jail to C.I.A. Center and has also asked for treatment by a Doctor.
17. Cr. Misc. Application No.63 of 1991 (Muhammad Asbraf v. State and others).
18. This application under section 491, Criminal Procedure Code has been filed by Muhammad Ashraf for the release of his brother Muhammad Akram who according to the facts stated therein was arrested by Chakewara Police Station in Crime No. 370 of 1990 at the instance of one Muhammad Sulcman Brobi. The detenu 'is -said to have been involved in 5 other cases for ~W the same reason by different police Stations of Karachi (South). Ultimately the same reasonalongwith others was sent up to stand trial in 5 different cases. The detenu Subsequently it is alleged that on 5-2-1991 due to the influence of Muhammad Suleman Brohi the detenu along with Muhammad Akram, Punjabi were taken in custody by Officers of Police Station Kalri and produced before District Magistrate (South) who granted their remand to Police custody for a period of 14 days though they were undertrial prisoners in judicial custody. Since then the detenu and the co- accused are being tortured mercilessly by the Police. Onthe premises set forth above the petitioner prayed that the detenu taken from Karachi Central Jail on 5-2-1991 and kept in the Police custody till 18-2-1991 be declared to have been detained illegally and that he may be brought before this Court to be remanded to judicial custody.
19. A report has been riled by Muhammad Amir Gondal, A.S.I., Kalri Police Station, Karachi (South) in Court on 17-2-1991 wherein it is stated that the detenu, was taken in Police custody on 5-2-1991 and remained in such custody till 18-2-19911 for investigation. Police had obtained remand at the request of S.S.P. Karachi (South) from District Magistrate Karachi (South) as he was required in the investigation of 3 crimes of different Police Stations of Karachi. It was further pointed out that certain unlicensed arms and ammunition were recovered from the residence of detenu on 14-2- 1991 and F.I.R. No.75/1991 registered at Police Station Risala. The accused has been remanded to Police custody by A.C.M. Risala till 24-2-1991 and according to him, the detenu is lawfully detained by him.
20. Cr.Mise Ap[plication No.77 of 1991 Watanzada v.
21. S-H.O. Police Station Site and others This application filed by the petitioner under section 491, Criminal Procedure Code questions the detention of his younger brother Sarfaraz Khan by the Police. It is alleged that on 7-3-1991 at about 1-00 a.m. In the night a Police party consisting of about 20 to 25 persons in civil clothes came at the house of the petitioner and took the petitioner, his younger brother Sohrab Khan, and the detenu in custody. On 8-3-1991 the petitioner and his brother Sohrab Khan were released while they detained his brother Sarfaraz Khan in --their custody. It is alleged that till riling of this Application on 11-3- 1991, the detenu contains to be illegally detained by the Police.
22. On 12-3-1991 when the matter was placed in Court, notice to the Advocate-General was ordered to be issued-for 18-3-1991. On 18-3-1991Assistant Advocate-General Sindh appeared and stated that detenu Sarfaraz Khan was arrested in connection with investigation of Crime No.69 of 1991 under section 382/34, Pakistan Penal Code registered o . n 2-3-1991 It was further clarified by theassistant Advocate-General that the name of the saiddetenu is not entioned in the F.I.R. Itself nor any of his description given therein. It was ordered that the detenu be produced in Court along with Police papers on 21-3-1991.
23. On 21-3-1991 the detenu was produced when he complained of maltreatment by the Police and was, therefore, directed to be examined by the Medical Officer, Civil Hospital, Karachi. It was further noticed that he was arrested on 10-3-1991 and was produced before A.C. And S.D.M. Site who granted his remand to Police custody upto 18-3-1991 and allowed further remand upto 25-3-1991.
24. The application seeking remand of the detenu to Police custody filed by the Police did not disclose any cogent ground for grant of such remand and therefore A.C. And S.D.M. Site who had granted remand was directed to appear in Court on 25-3-1991 along with relevant papers. The A.C. And S.D.M. Site appeared on 30-4-1991 and his statement was recorded. Mr. Lqbal Nafees Khan, the A.C.
25. And S.D.M., stated before us that on 11-3-1991 S.H.O. S4e had filed an application seeking remand of accused Sarfaraz Khan, present in Court, who was shown to have been arrested in Crime No.67 of 1991 of that Police Station. The Police had sought remand of the accused on the ground that investigation was in progress and other persons involved in the crime were to be arrested and some case property was to be recovered. He allowed his remand to Police custody upto 18-3-1991 when again the same Police Officer produced the accused before him for obtaining further remand in the same case. Same grounds were shown for obtaining further remand. He allowed them further remand for 7 or 8 days. He stated that he was aware of the provision of section 167, Criminal Procedure Code and knew certain criminal circulars containing instructions and was also aware of decisions of the superior Courts on the subject. He knew that the remand of an accused person was not to be given mechanically. He had examined the case, diary of the case before allowing remand but sufficient progress in in--,ti2ation, ,)f the offence according to the diaries was not made by the I h P lice. It was disclosed the-rein that Investigating Officer was busy in some other affairs and, on that account progress in investigation was not made. He, therefore.
26. Overlooked the deficiency of the Police in investigation of the crime and granted them further remand. He admitted that during the first 6 days of the period of remand Police did not even care to hold an identification test of the accused through the complainant. He admitted that he, in fact, committed an error in granting such remands as he thought that the Police was busy in other administrative affairs. Ultimately, the detenu was released on bail by Police on 25-3-1991 on execution of personal bond.
27. Cr. Misc. Application No.98 of 1991 (Maj. (Retd.) Zahid Hussain v. The State)
28. An application addressed to the Chief Justice, High Court of Sindh, by petitioner Maj. (Retd.) Zahid Hussain, was received by post on 25-3-1991 complaining that he was arrested on 20-1-1991 at the Airport and continues to be in Police custody since then illegally. The Chief Justice directed that his application be registered as a Petition under section 491, Criminal Procedure Code and fixed in Court. The application was placed in Court on 28-3-1991 when it was admitted to regular hearing.
29. On 1-4-1991 Syed Sarfaraz Ahmed, Addl. Advocate-General Sindh, appeared along with Abdul Jabbar, Addl. S.H.O., New Town Police Station and stated that the petitioner was in custody at Police Station New Town, Karachi under a valid order of remand passed by A.C.M. XIII, District Karachi (East) in investigation of Crime No. 163 of 1991 of that Police Station. Memo of arrest was read over in C6urtand it was found to be unsatisfactory. The petitioner was, therefore, ordered to be produced in Court on 2-4-1991 along with the 'entire record ~ relating to remand orders obtained by Police.
30. On 2-4-1991 the petitioner was produced by one Adbul Jabbar, Addl. S.H.O. In Court. Statements of the petitioner and Abdul Jabbar -were recorded in .Court and it .Transpired that the petitioner was no more required in any case by the Police. We had therefore directed that he be set at liberty forthwith.
31. The statement of the Petitioner recorded in Court disclosed that he -as detained continuously from 20-1-1991 on reaching Karachi Airport from Dubai and was arrested in several cases and let off in each case by the Police under Section 169, Criminal Procedure Code. We therefore directed that a not, ice be used to Inspector Shafi ]Rind of Airport Police Station, Mohammad Nazir S.H.O. Shahra-e- Faisal, Police Station, S.H.O. Shah Faisal -Colony, Manzoor Malik formerly S.H.O. New Town Police Station, Muhammad Akrain present S.H.O. Of New Town Police Station and Mr.Laikhraj Rathi, A.C.M.
32. XIII Karachi (East) along with entire record of orders granting remand to Police custody from January 1991 upto date as all of them appeared to be concerned. With arrest/detention of the petitioner. We also directed the petitioner and the Advocate-General Sindh to appear on 23-4-1991.
33. Petitioner Maj. (Retd.) Zahid Hussain, in his statement stated that he belongs to Azad Kashmir and has served Pakistan Army for about 19 years andretired as a Major in 11982. After his retirement he entered politics and. Was doing his private business. He reached, Karachi Airport from Dubai on 20thJanuary, 1991 and when he reported at the counter of Immigration, Department, the Officer sitting at the counter after examining his passport took him to his office at Airportand handed him over to a Police Officer byname Shabbir Ahmed T hat Police Officer asked him to sign a paper reporting that his baggage was losthe never received his baggage till date. He was then taken to Police Station, Karachi Airport ,,,where he was confined for 3 or 4 days. He was then taken 'to Police Station Shahra-e-Faisal. And kept there till 5-2-1991 and then shifted to Shah Faisal Colony Police- Station. He was again shifted to Airport Police Station on 6-2-1991 and, again taken away by Shahr.a-- e-Faisal Police, where from he was shifted to New Town Police Station and he was produced by that Police Station in Court. He had written an application in his own handwriting and quietly passed it on to a person who visited that Police Station and requested him to post the same. He further stated t4at Police officers of those Police Stations had informed him that he was being detained under the orders of Senior Superintendent of Police Mr. Suleman SyedMuhammad. He was also taken to him on several occasions. Police Officers generally questioned him regarding the Gulf War.
34. Mohammad Shafi s/o Doda Khan Rind was examined in Court and he stated that he had arrested Maj. (Reid.) Zahid Hussain on 23-1-1991 from outside Terminal No.2 of the Karachi Airport as a suspect in Crime No.278 of 1990 relating to the commission of a murder. Name of any accused person was not given in the FIR, but he had arrested him on the basis of some information. He produced him before Mr. Abdul Jabbar Abbasi, S.O.M. Airport on 24-1-1991 and obtained his remand to police custody for 14 days. On the expiry of the period of remand for 14 days he filed a report under Section 169, Criminal Procedure Code and released him. During his entire period of detention for 14 days he did not even conduct any identification test, no recovery of any crime weapon was made from him and was merely being interrogated for the said period. He denied that the petitioner was handed over to him by Immigration Police immediately on his arrival at the Karachi Airport on 20-1-1991. He also denied that after releasing him as stated above he had handed over his custody to Police Station Shahra-e-Faisal.
35. Mohammad Nazir, S.H.O. Of Police Station Shahra-e-Faisal when examined by us in Court stated that on 23-1-1991 Mohammad Shafi, S.H.O. Airport had handed over the custody of the petitioner to be kept at the Police Lock-up at his Police Station. He remained in that Police Lock-up till 5-2-1991 when he received oral orders from D.S.P. Airport to shift the petitioner to Police Station Shah Faisal Colony. He therefore was shifted to that Police Station. According to him he was neither concerned with his arrest nor his detention in any of the Police Stations but had merely complied with the oral orders of the D.S.P. And forwarded him to the other Police Station. Rao Mohammad lqbal, Station House Officer of Shah Faisal Colony Police Station, was examined in Court who stated that the custody of petitioner was handed over to' him by an Assistant Sub-Inspector of Shahrah-e-Faisal Police Station and he had locked him up in .The Police Lock-up and made such entry in the register.
36. The petitioner remained in Police Lock-up till 6-2-1991 when S.I.P. Mohammad Hussain of Police Station Airport came to that Police Station and took him away. Abdul Nabi Abbasi, Inspector FIA Immigration, when examined in Court admitted that on 20th January, 1991 he was Flight Inspector Incharge of the Shift. He stated that the petitioner arrived in Karachi by Emirates Flight that landed at about 9-30 P.M. On that date. He had received a communication from Intelligence Bureau, Government of Pakistan, to the effect that in case the petitioner arrives at the .Airport he may be detained and his custody be handed over to the Bureau. On arrival of the Petitioner I he secured his Passport and one Hamid Hussain Abidi, an officer of the Intelligence Bureau, was present there and he took him away. He produced such receipt issued by Mr. Hamid Hussain Abidi, 'Assistant Director Intelligence Bureau.
37. Mr.Laikhraj Rathi, A.C.M. XIII Karachi (East) %Nas examined in Court and he stated that on 8-2-1991 he had received an application at about 6-00 p.m. At his residence from the Police seeking remand of the petitioner to Police custody. He had allowed the Police to keep him in custody for 6 days. Agair op 13-2-1991, when he was available at the Police Station he received an application for remand at 7-30 p.m. The Police had stated in that application that they needed further remand for the purpose of interrogation of the petitioner. Although, he had asked them to produce the case diaries but the Police could not produce the same. They had not collected any evidence but needed time for his interrogation. He granted them remand till 18-2-1991. He had seen the petitioner in Police Station who was sitting in another room where he had gone subsequently.
38. Again on 19-2-1991 the New Town Police filed another application relating to the investigation of Crime No.3 of * 1991 of that Police Station. The Police in that case too wanted remand of the petitioner to Police custody for the purpose of interrogation of the accused and investigation of that offence. He allowed them his remand for 4 days on that ground. This order was also passed at the Police Station. Police repeated their application in the same case on 23-2-1991 for his remand to Police custody for the purpose of his interrogation for 10 days. He allowed such remand. Again on 8-3-1991 New Town Police filed another application for obtaining his remand in Crime No.324 of 1990 for the same purpose. This application was presented to him at his residence at 7-00 p.m. And he allowed them his remand for 11 days. Again another application was filed by the same Police on 24-3-1991 for obtaining remand of the petitioner in Crime No.163 of 1991 and he allowed them 7 days remand. This application was filed on that day at 7-00 p.m. At his residence. Again an application was filed on 31-3-1991 and two days, remand was allowed at the Police Station. Two days later police filed an application under Section 169, Criminal Procedure Code intimating that petitioner was let off tinder the order of High Court.
39. Almost all the Police Officers who arrested the petitioner in 'one or the other ease, stated that they were doing so under instructions from the Senior Superintendent of Police Mr.Suleman Syed Mohammad. Mr.Suleman Syed Mohammad was examined in Court and admitted that the petitioner had seen him while he was in custody at New Town Police Station and complained of some torture. All the Police Stations concerned in this case happened to be within his territorial jurisdiction. He was, according to his own statement, informed by petitioner that he was kept in custody tit various Police Stations under him and was actually arrested by 5 different Police Stations and released under section 169, Criminal Procedure Code. In spite of such case he very innocently stated, "I did not conduct any inquiry for his repeated arrest and release". He further stated that he did not take any steps in spite of the fact that he came to know that the petitioner was arrested on 23th January, 1991 and was in custody till February, 1991 when he met him. This indeed is a sorry state of affairs where a Senior Officer who claims to have been retired from Army service and joined Police service, having come to know about repeated arrest of a citizen of Pakistan prefers to close his eyes.
40. In above cases the alleged detenu were either set at liberty by us or were sent up for trial before competent Courts, and as such no further action was called for. However, we found that in some of the cases detenus were arrested by the Police in investigation of one crime, kept in their custody under orders of remand granted under Section 167, Criminal Procedure Code by Magistrates and on expiry of ,maximum period of remand re-arrested in other cases and thus continuously kept in custody of Police without any limit of time by resorting to above provision of Criminal Procedure Code. This clearly amounted to an abuse of power by the Police invested to the murder the law. We also noticed that the Magistrates while granting remand of the accused persons in police custody had acted mechanically and violated the settled principles laid down by superior Courts for grant of such remand. It is a well --known fact that in every Police Station in Karachi there-, are large number of cases . Registered under various Sections of Pakistan Penal Code and other laws which remained undetected., In such cases neither the name of accused nor his description are given.
41. Police call such FIRs as the "Blind FIRs". It appears that police in Karachi is using -,such FIRs as a - vehicle of oppression against the citizens by-arresting them indiscriminately in some of these cases and then releasing them only to be re-arrested in other cases of the same class In the above-stated circumstances we decided to hear these cases at length to determine the following points which prominently arise in the above cases and which in our opinion needed an admonition pronouncement, for guidance of Police and Magistracy:- (a)What are the powers of Police Officers arrest person in the investigation of a case? b) What are the power of the Magistrates to grant remand of a person arrested by the police in the investigation of a case and how such power is to be exercised :an a person already remanded to judicial custody under orders of a trial Court be ordered by another Magistrate to be taken out of that custody and remanded to police custody in the investigation of another case?
42. Besides hearing the learned Advocates for the petitioners in above cases, we also heard Mr. Aftab Ahmed Akhund, the Advocate-General, Sindh and MrAbdul Hafeez Lakho, Advocate, who was called to assist the Court as another case.
43. Mr. Abdul Muieeb Pirzada, Advocate appearing for the petitioners in qo.D-292/91 and C.P. No.D- 325/91 contended that both the detenus in two petitions were arrested by Police in the investigation of a crime and sent up for trial before the Special Court (Terrorist Activities), Karachi and were in judicial custody under orders of the Trial Court. They were taken out of judicial custody and' put under police custody under orders of other Magistrates for investigation of other, offences.
44. According to learned counsel the detenus could not, under the circumstances, be ordered to be remanded to police custody while they were already in judicial custody, without obtaining such orders from the trial Court under whose orders they were kept in judicial custody. In support of his such contention he referred to cases reported in 1972 SCMR 182, AIR 1037 Sindh 251 and'1969 PCr.LJ 786.'Altematively he contended that power of a Magistrate to, grant remand under section 167, Criminal Procedure Code is a judicial function of a Magistrate and he can only grant remand strictly. In compliance of the provision of Section 167, Criminal Procedure Code, Rules and Orders of the High Court on the subject. In support of his latter contention he referred to cases reported in 1984 Criminal Law Journal 2588, 1969 Pakistan Criminal Law Journal 873. According to him both the Magistrates And the Police Officers who had detained the detenus in these two cases have violated fundamental rights of the detenus as contained in Articles 9, 10 and. 14(2) of the Constitution of Islamic Republic of Pakistan. . Mr. Khawaja Naveed, Advocate appearing for 'the petitioner in Petition 'No D-339/91 and C.P. No.D- 1 502/91 generally adopted the arguments advanced by, Mr-Abdul Mujeeb Pirzada, Advocate. The other counsel appearing for the petitioners in the remaining cases also did not advance any different arguments in their respective cases.
45. MrAftab Ahmed Akhund, the learned Advocate-General Sindh, contended that normally a Police Officer who arrests a person without warrant in the investigation of a cognizable offence is expected to complete the investigation within 24 hours as is provided by section 61 of the Criminal Procedure Code. When the. Investigation cannot be completed within 24 hours. Police Officer is required to apply to the nearest Magistrate for obtaining remand authorising him to keep such person either in his custody or in judicial custody. According to him a Magistrate is empowered to pass order under Section 61, Criminal Procedure Code read with clause 7(aa) of Part 3 of the 3rd Schedule to the Criminal Procedure Code while Section 167 of the Criminal Procedure Code merely lays down the procedure and the grounds for the purpose. There is no other Section in the Criminal Procedure Code that either prohibits or limits the powers of a Magistrate in such matters and a Magistrate can competently grant remand of a person who is already in judicial custody of a Criminal Court under Section 344, Criminal Procedure Code for the purpose of trial in another case.
46. In support of his contention he relied on the cases of Ghulam Rabbani and 3 others v. The State and another reported in PLD 1971 Lahore 741, case of State v. Sukh Singh and others reported in AIR 1954 Rajisthan 290, case of Habib Ahmed v. The State and another reported in PLD 1972 Lahore 359, case of Mai, (Retd.) Javed Mawaz v. Abdur Rasheed reported in 1991 Pakistan Criminal Law Journal Head Note No.88 on page 63 (he has also produced the .Copy of this judgment) and the case of State v. Fateh Mohammad reported in 1972 SCMR 182., He pointed out that. The ,judgment in the case of Mohammad Hayat and another v. The State, published in 1969 Pakistan Criminal Law Journal 786, has been dissented from and not followed in the cases of Ghulam Rabbani and 3 others v. The State and another, reported in PLD 1971 Lahore 741, and the case of Habib Ahmed v.
47. The State, reported in PLD 1972 Lahore 359. Similarly the other case of Dhaman Hiranand v. The Emperor, reported in AIR 1937 Sindh 251, was dissented from in the case of State v. Sukh Singh and others, 'reported in AIR 1954 Rajistan 290.
48. MrAbdul Hafeez Lakho, the learned counsel who assisted us as anther case in these petitions pointed out that a police officer can arrest any person mentioned in Section 54, Criminal Procedure Code without any order or a warrant of arrest issued by a Magistrate. A person so arrested can only be kept in custody of a Police Officer for a period of 24 hours and by such time it is expected of him, to complete the investigation of the case. However, in a case where investigation cannot be completed within a period of 24 hours as fixed by Section 61, Criminal Procedure Code and according to him there are grounds for believing that acquisition of such person or information about commission of an offence are well founded, a police officer who arrests a person shall forthwith produce him before the nearest Magistrate along with copy of the entry -in the case diary as required by Section 167, Criminal Procedure Code. The Magistrate, under that provision of law can authorise the detention of an accused person in such custody as he may think fit for a period not exceeding 15 days on the whole and in cases where a Magistrate considers further detention unnecessary he has to order that the accused be forwarded to a Magistrate having jurisdiction to try the case instead of granting further remand. In any case the Magistrate who authorises detention of a person in custody of the police has to record his reasons for doing so and forward a copy of his order with reasons for granting such remand to the Sessions Judge. Elaborate instructions have been formulated on such aspect by all the High. Courts in Pakistan besides guidelines provided by various. Judgments of superior Courts. Magistrates while exercising their powers to allow remand of a person have to strictly follow such instructions. Federal It capital and Sind Courts Criminal Circulars were published by the, erstwhile Chief Court of Sindh for the guidance of Criminal Courts and subordinate Officers in matters of remand and other relevant topics. The circulars were, however, replaced by the circulars embodied by the High Court of West Pakistan after the formation of One Unit and are contained in Chapter 7, Volume III of the High Court Rules and Orders. After dissolution of the One Unit, the latter circulars will continue to be in force. He referred to the case reported in 1984 Pakistan Criminal Law Journal 2588 where such rules and guidelines on the subject as provided by the judgments of the superior Courts have been reproduced. He also referred to the case of Ch. Zahoor Illahi reported in 1975 Pakistan Criminal Law Journal 1413 where instructions issued by the Government of Punjab for guidance of Magistrates with regard to remand have been reproduced and elaborated.
49. Entire scheme concerning powers of remand of an accused person from the stage of investigation till he is actually sent for trial in a Criminal Court, he pointed, out is contained in sections 167 to 173 of the Criminal Procedure Code. Once a case is challaned the power of granting remand of the undertrial prisoner for the purpose of trial of the case is given in Section 344, Criminal Procedure Code. He further elaborated such provisions of law by referring to the case of Nazir Ahmed reported in PLD 1987 Lahore 236. As regards the third question he stated that an undertrial prisoner who is already in judicial custody under the orders of the Trial Court cannot be transferred to police custody without obtaining such orders from the Trial Court. In support of his such contention he referred to the case of Mahmood Ali Kasuri, Bar-at--Law reported in PLD 1977 Lahore 1400 and the case of Ziauddin reported in PLD 1976 Lahore 93.
50. In order to examine the extent of powers of a Police Officer to arrest a person during the investigation of a cognizable offence without warrant, it is necessary to look at the provision of law in this regard. Contained in the Criminal Procedure Code.
51. Chapter V of the Criminal Procedure Code starting from Section 46 and ending with Section 67 is the relevant chapter that deals with the powers of an officer of police to arrest a person without warrant in the investigation of a cognizable offence.
52. Sections contained in Chapter V of the Criminal Procedure Code deal with the mode of arrest of a person, use of force when arrest is. Resisted (section 46); power of a Police Officer to enter a place to arrest a person .(section 47); procedure in case easy .Ingress into a place cannot be obtained for the purpose of arrest (section 48) and power. Of -a Police Officer to liberate himself if after he enters a place to arrest a person is detained therein (section 49). Once a person is ,arrested by a Police Officer. His person can be searched and articles other than his clothing can be taken by the Officer and kept in safe custody (sections 51-52). A Police Officer under Section 53, Criminal Procedure Code can also source a weapon of offence incase. It .,is found to be with him ' at. The time of arrest. In case a weapon of offence is secured from his person such weapon has to be forwarded to the Court before whom he is to be produced (section 59). The Sections referred to here in above appear in Part-A of Chapter V of the Criminal Procedure Code. Section 50 and section 53, in this part are important. Section 50, Criminal Procedure Code is reproduced below:-- "50. No unnecessary restraint .--The person arrested shall not be subjected to more restraint than is necessary to prevent his escape. A Police Officer under section 50, Criminal Procedure Code is prohibited from using unnecessary restraint over a person after he is arrested. The provision clearly envisages a total restraint on the powers of a Police Officer to. Use force or to subject a person arrested to any sort of torture. Restraint under this Section can only be used if the person arrested tries to escape. In case a Police Officer exceeds his authority and violates such restrictions he can only expose himself to both criminal and civil liabilities under the law in -addition to disciplinary action by the department. Similarly ,when an officer of the Police secures a weapon of offence from a person on his arrest under Section 53 of the Criminal Procedure Code, such weapon has to be delivered to the Court before whom arrested person is required to be produced. This is another safeguard afforded by law to protect a person under arrest from foisting of any weapon on him by the Police. Part 'A' of Chapter V in view of above generally deals with the manner -of arrest, search, of the person arrested and securing of articles or weapons of offence-Part 'B' of the Chapter deals with power of a Police Officer to arrest certain persons as mentioned here in below.
53. Section 54, Criminal Procedure Code authorises a Police Officer to arrest a person without an order or warrant from a Magistrate under nine situations mentioned in its nine sub-clauses. First sub- clause is relevant and is reproduced below:-- "54. When Police may arrest without warrant.--(l) Any Police Officer may, without an order from a Magistrate. And without a warrant, arrest- -firstly, any person who 'has been concerned in any cognizable offence or against whom a reasonable complaint has been made or credible information has, been received, or a reasonable suspicion exists of his having been so concerned."
54. It will thus be seen that under the first sub-clause of Section 54(1), Criminal Procedure Code a person can be arrested without a warrant in the following circumstances :~- (a)If he be concerned in any cognizable offence.
55. (b)Against whom. a reasonable complaint has been made.
56. (cAgainst whom credible information has been received that he is concerned with commission of such offence.
57. (d)If reasonable suspicion exists about him being so concerned.
58. It is -true that a Police Officer has been conferred sufficient powers to arrest a person in the investigation of a cognizable offence if he b. ' e concerned with commission of such offence. But such a power can be exercised only in' those cases where a Police Officer is possessed of some evidence. Indicating involvement of a person under the four situation., mentionedsection 54(1)criminal Procedure Code.
59. In most of the cases under consideration before us we noticed that the Police Officers arrested the persons without collecting any material connecting them with commission of the offences mentioned in the pending "Blind F.I.Rs.". Such persons were being kept in custody without legal justification as no material was shown to us which could reasonably connect their arrest in those cases. Not only that in Cr. h4isc. No.98 of 1991 we were shocked to note that the Petitioner was arrested by the Police on a mere verbal order of some agencies and his arrest was continued under similar verbal order from time to time. The Petitioner's arrest was shown one after the other in number of "Blind F.I.Rs.". It is equally disgusting to note that a senior Police officer examined by us in the case, in spite of knowledge of above unjustified arrest of Petitioner took no action to mitigate the suffering of the Petitioner. Such acts of arrest can only be termed as unlawful being directly the result of arbitrary exercise of power vested in Police Officer under the law. We are also of the view that Police Officer responsible for such acts cannot claim any protection under the law as these acts cannot by any reasoning be described as bona fide and in appropriate proceedings they can be punished for these excesses. We however leave it to the Government of Sindh to deal with such delinquent officers and take appropriate disciplinary action against them and the aggrieved persons will also be free to take any action according to law that they may be advised.
60. It is abundantly clear from the provisions contained in the Criminal Procedure Code that once a person concerned or suspected to have committed a cognizable offence is arrested by a Police Officer it is expected of him that he would complete the investigation without any loss of time and at best complete the investigation within 24 hours of his arrest as laid down in Section 61 ibid. Every Officer incharge of a Police Station is required by Section 62, Criminal 1 Procedure Code to report to the concerned District Magistrate of if directed by him to the Sub-Divisional Magistrate about the arrest of persons without warrant within their territorial limits. Such reports when made by incharge of a Police Station to the District or Sub-Divisional Magistrates is not a matter of sending greetings to them but report is sent to such Magistrates so that they can scrutinize the arrests made by Police Officers and find out if the action can be justified in law. They are expected to carefully examine and even inspect Police lock-ups to prevent abuse of power by Police and illegalities committed by them in effecting arrest by themselves. If the District Magistrates in the Province act diligently, keep the record of arrests by Police under their vigilance we are sure that many cases of excesses committed by the Police will come to an end.
61. I . We will now examine the scope of the power of a Magistrate to remand a person accused of a cognizable offence to Police or judicial custody beyond a period of 24 hours permitted by Section 61, Criminal Procedure Code for the purpose of completing the investigation as contained in section 167, Criminal Procedure Code, which is reproduced below:-- "167. Procedure when investigation cannot be completed in twenty-four hours.--(I) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 61, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the Police Station (or the police-officer making the investigation if he is not below the rank of Sub-inspector) shall forthwith transmit to the nearest' Magistrate a copy of the entries in the diary hereinafter prescribed 'relating to the case, and shall at the same time forward the accused to such Magistrate.
62. The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdiction to try the case or (send) it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to 'a Magistrate having such jurisdiction.
63. (Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the (Provincial i3overnment) shall authorise detention in the custody of the police).
64. (3)A Magistrate authorising under this section detention in the custody of the police ,shall record his reasons for so doing.
65. (4)The Magistrate giving such order shall forward a copy of his order, with his reasons for making it, to the Sessions Judge."
66. On a plain reading of 'the above provisions it would appear that section 167, Criminal Procedure Code. Is in the nature of an exception to section 61 ibid. While section 61 prohibits detention of a person in the Police custody, arrested without a warrant, beyond a period of 24 hours. Section. 167 authorises such detention by the Police beyond 48 hours up to a minimum of 15 days subject to the order of aMargaret in case where Police is unable to complete he investigation within 24 hours of the arrest., The provision of section 167, Criminal Procedure Code being in the nature of an exception and also mounting to putting restriction on the right of personal I ' liberty granted under the Constitution has to be very strictly construed and unless an the requirements of Section are complied a remand cannot be granted-It will be noticed 'that the production of an accused person under custody of a Police officer along with entries made by them in the diaries, before a Magistrate is and any requirement of law. The purpose be Nind production of a person before the Magistrate for obtaining remand is that he can notify to the Magistrate if any excess has been committed against him by the Police in violation of provision contain in sections 50 or 53, Criminal Procedure Code or any other illegal action taken by Police for the purpose of extorting confessions or any other act. A Magistrate before whom a person under arrest is produced for remand is expected to put specific questions on all such aspects to ensure that Police does not commit illegal acts or use unfair excessive force. Entries in. The case diaries are required to be produced by the Police Officer so that the Magistrate can apply his mind and ascertain the extent and type of custody required on the basis of available evidence and evidence that is to be collected. In case maltreatment is alleged and confirmed on an enquiry the Magistrate shall not in such case grant remand to Police custody. in addition to the provision contain in Section 167,, Criminal Procedure Code, High Courts in Pakistan have been issuing Circulars from time to time to safeguard the liberty of a citizen and enjoining upon the Magistrates to act with due caution so that the liberty of a citizen is not jeopardized.
67. Reported decisions of the superior Courts have by now elaborately dealt with such powers. A Magistrate while hearing application for grant of remand of an accused person performs judicial functions. The accused through his lawyer or a friend or relatives is entitled to raise objection E to the passing of such orders. It is therefore necessary for a Magistrate to pass orders only in open Court. A Magistrate is not expected to pass orders granting remand of accused persons in a mechanical manner. 'He has to examine very carefully the justification for depriving a citizen of his liberty which can only be. Done if material justifying such action is available o n record.
68. We have examined the applications. Submitted by Police Officers to obtain remand of persons arrested by them in the above cases and have noticed that these applications were written by Head Moharrar of Police Station and were stereotype in nature. They hardly disclosed the grounds for grant 'of remand. The Magistrates have dealt with such applications in a casual and mechanical manner and in some cases even granted remand of 14 days straight away. A Magistrate is expected to act stringently in matters of grant of remand and it will always be iii the interest of justice that remand of an accused person either to Police or judicial custody during the investigation is granted for the minimum possible time required for completing the investigation of a case expeditiously.
69. We would like to mention here that in every case where a Magistrate grants remand to Police or judicial custody of an accused person under section 167(1), Criminal Procedure Code, he is required by its subsection (4) to forward a copy of such order with his reasons to the Sessions Judge. A District Magistrate is to be informed of apprehensions of persons by Police in exercise of their powers under Section 54, Criminal Procedure Code while a Sessions Judge has to be kept informed by Magistrates who allow remand persons for the purpose of investigation beyond a period of 24 hours. A Sessions Judge too like a District Magistrate- as pointed out here in above is expected to keep-- vigilance on exercise of such powers by Magistrates.
70. We were at great pains to note that Mr.Lekhraj Rathi, A.C.M.XIII Karachi (East), in the case of Major (Retd.) Zahid Hussain made himself available at the Police Station or even at Police lock-up and repeatedly granted his remand in more than one alleged offences. None of the applications submitted to him justified grant of such orders. Mr. Lekhraj Rathi, A.C.M.XIII Karachi (East). As stated above, was examined by us in Court and he stated hat he had passed orders of remand at Police Station. By granting remand of Major (Retd.) Zahid Hussain at Police Station at odd hours of the day and night, Mr. Lokhraj Rathi, A.C.M. XIII Karachi (East), has indeed acted contrary to the spirit of law embodied in Section 167, Criminal Procedure Code. It will be dangerous to entrust such officers with judicial powers and in this case we hope that the Government of Sind will take appropriate action against him.
71. We hope that the Magistrates in the Province of Sindh while considering request under Section 167, Criminal Procedure Code for the purpose of remanding accused person to Police or judicial custody will be careful enough to exercise such power in strict compliance of the provision contained in section 167, Criminal Procedure Code and Circulars issued in this behalf by the High Court of Sindh. In case any deviation is made by any of the Magistrates in this respect such Magistrates will be exposing themselves to the peril of having committed violations of mandatory provisions of law.
72. We now propose to advert to the last question, whether a person remanded to judicial custody by a Trial Court under Section 344, Criminal Procedure Code for the purpose of trial can be taken. In the custody of Police for the purpose of investigation of another case.
73. It is only a Magistrate of first class who can remand a person accused of a cognizable offence for a period beyond 24 hours to Police custody for the investigation of an offence as no Magistrate of III and II Case unless specially empowered is competent to pass such orders. The ordinary powers of a I Class Magistrate are contained in Schedule III of the Criminal Procedure Code. Item No.7(aa) of No.3 of that Schedule empowers a I Class Magistrate to grant remand, while Section 167, Criminal Procedure Code merely regulates exercise of such power. Such a Magistrate has powers to grant remand of an accused person to Police custody if he happens to be a Magistrate stationed at a place which is the nearest to the place of arrest of a person although he may not be having jurisdiction to Iry such a person for the offence for which he had been put under arrest by Police as provided by Section 167(2), Criminal Procedure Code. This Section does not contain any restriction on -the powers of a Magistrate to grant- remand of a person required in the investigation of a cognizable offence while he may already be in jail custody under orders of a Trial Court facing trial for another offence. In case any other view is taken a person who may be in jail custody as an undertrial prisoner remanded under Section 344, Criminal Procedure Code by a Trial Court is found to have been involved in commission of other offence as well, such a person can get scot free leading to hazardous consequences. For the above reasons we hold that an undertrial prisoner if required by Police in the investigation of another offence can under orders of Magistrate under Section 167, Criminal Procedure Code be remanded to ' Police custody. By taking this view we are supported by the G decision contained in the case of * the State v. Sukh Sing and others reported in AIR 1954 Rajisthan 290, case of Ghulam Rabbani and 3 others v. The State and another reported in PLD 1971 Lahore 741 and the case of State v. Fateh Mohammad published in 1972 SCMR 182.
74. In a case where a person is already in jail custody as an under-trial prisoner under orders of a trial Court and he is required by Police in the investigation of some other case, a Police Officer cannot on his own arrest such prisoner and take him. Out of judicial custody even for 24 hours, which he may otherwise be competent to keep him under Section 54, Criminal Procedure Code. In such a case he will be required to approach a magistrate intimating him that. The person in judicial custody is required by him in the investigation of another case. The Magistrate to whom such a request is made may in that case not insist for his physical production he being already in judicial custody. This will however not absolve the, Police from their responsibility to produce entries in the case diaries before the Magistrate for the purpose of obtaining remand and the Magistrate before whom such a request is made will be under duty to ascertain if the request made by the Police can be sustained on the basis of material available in the diaries. By taking such view we are supported by the decision in the case of Mehmood Ali Kasuri v. Punjab Government published in PLD 1977 Lahore 1400.
75. Before concluding we would like to place on record that the conduct of Police Officers in the above cases was found to be most disappointing. The repeated arrest and release of persons in "Blind F.I.Rs." without first collecting material showing their reasonable connection with the cases, could hardly be treated as bona fide act of Police Officer in exercise of lawful authority vested in them by law. We have already highlighted the consequences of such action on the part of Police in the case of Rabia Begum v. Government of Sindh and others C.P. No.D-375 of 1991 and it is not necessary to repeat them here.
76. It must be remembered that Police and Magistracy play a vital part at initial stages of administration of justice. In case these agencies fail to perform their duties in strict compliance of law people may lose faith in them. This will not only create a serious setback in the process of administration of justice but will also adversely affect the establishment of rule of law in the country.
77. With the foregoing conclusions the Petitions and Criminal Miscellaneous Applications mentioned above stand disposed of.
78. A copy of this judgment may be sent to the Government of Sindh for taking appropriate action. In the light of above observations.