' The facts giving rise to this Habeas Corpus Petition are that one Ghaus Bakhsh of village Bosan Utar, District Multan, lodged F.I.R. No,1/93 at Police Station Alpa alleging that the petitioner has killed his only son Muhammad Shafi by firing at him with an automatic pistol. The Alpa Police arrested the petitioner on 10-1-1993 and the case is still under investigation.
2. The petitioner's grievance is that his remand to judicial custody granted by M.I.C. Expired on 17-6- 1993, and that without producing him before any Court/Magistrate on or after 17-6-1993 he was being detained in jail which tantamounts to illegal detention, therefore, he be set at liberty or in the alternative be released on bail.
3. On the other hand learned Additional Advocate-General assisted by learned counsel for the complainant submitted that the petitioner is accused of committing offence of murder, therefore, he should not be released on account of omission on the part of police to produce him in Court on 17-6-1993 for obtaining his remand since the omission is of technical nature and rectifiable. Further argued that the record shows that on 17-6-1993 the Duty Magistrate directed to bring the petitioner from jail and produce before him on 27-6-1993 and that this order be treated as remand order, authorising detention of the petitioner in jail till 27-6-1993 under section 344, Cr.P.C. According to the learned Additional Advocate-General an order under section 344, Cr.P.C. Could legally be passed in the absence of the accused as has been held in Raj Narain's case AIR 1971 SC 178.
4. I have considered the contentions of the learned counsel for the parties carefully. In the Code of Criminal Procedure, 1898, there are two sections which deal with remanding an accused to custody namely sections 167 and 344. The former section deals with grant of remand to police custody and the latter deals with grant of remand to judicial custody. Section 167, Cr.P.C. Enjoins that if investigation is not completed within 24 hours, the period fixed by section 61, Cr.P.C., the S.H.O. Shall forthwith transmit a copy of the entries in the case diary to the nearest Magistrate and "shall at the same time forward the accused to such Magistrate". It would be seen that this section (which is in consonance with Article 10 of the Constitution of Pakistan (1973) contemplates that an order remanding an accused to police custody shall be passed in the presence of the accused. Section 344, Cr.P.C., on the other hand lays down that if a Court thinks fit to postpone or adjourn the inquiry, it shall do so by stating in writing the reasons therefor and "may by a warrant remand the accused if in custody" for not exceeding 15 days. To my mind, this section also requires the presence of the accused while remanding him to judicial custody. The reason is that the word "remand" means to recommit to custody, and if at the time of passing the order committing the accused to jail requires his presence, then his recommitment would also require his presence. It is well- established principle that where an authority seeks to curtail the liberty of a subject, it must strictly and scrupulously observe the forms and rules of law. When a Court is moved for remanding an accused to custody it is duty of the Court to inform him about grounds of his arrest and the accused has a right to oppose his remand and also ask for his release on bail (personally or through a counsel of his choice) and this right is enshrined in Article 10 of the Constitution of Pakistan. This right can be exercised if the accused is present in Court at the time of considering the question of his remand.
5. Raj Narain's case (supra) proceeds on peculiar and distinguishable facts. In that case, Raj Narain was arrested under section 107/112, Cr.P.C. On 20-8-1970. His remand to police custody was to expire on 28-8-1970 at midnight. Before this he was sent from Di4trict Jail, Lucknow to Central Jail, Dehli for being produced before the Supreme Court. The case was heard on 27-8-1970 and adjourned. The Supreme Court ordered, when clarification was sought by jail authorities, that he (Raj Narain) be remanded back to the custody to which he belongs (District Jail, Lucknow) and that if fresh, remand order is not received by the Superintendent Jail by midnight, the petitioner shall be set at liberty. But, time was so short that remand of Raj Narain was obtained without producing him in Court. This was challenged. The learned Chief Justice of India, in the circumstances, held the remand order as valid observing in para. 7 of the judgment:-- "There is nothing in the law which required his personal presence before the Magistrate because that is a rule of caution for Magistrates before granting remands at the instance of the police.
However, even if it be desirable for the Magistrate to have the prisoner produced before them, when they recommit him to further custody, a Magistrate can act only as the circumstances permit."
' In para. 8 of the judgment it was observed:-- "Indeed, similarly Courts trying cases may find it necessary to order a remand in the absence of an accused e.g. When an accused is so seriously ill that the trial has to be adjourned and he cannot be brought to Court and in such case the order made without production of accused in Court will not be invalid."
Of course in an unavoidable situation, such as natural calamity or as pointed out in the above observation due to serious illness of an accused, when his production in Court is not possible, then his remand may be granted in his absence for one or two dates but to say that it is always permissible to obtain remand of an accused under section 344, Cr.P.C. Without producing him in Court is perilous and a highly dangerous proposition for it would put the fundamental right of liberty of a citizen to jeopardy.
6. In order to find out the cause for not producing the accused in Court in this case, I had sent for the Magistrate namely Ch. Muhammad Aslam alongwith the record who allegedly had passed the order dated 17-6-1993 (relied upon by Additional Advocate-General) on the file. It is amazing that he denied to have signed this order and asserted that his signatures have been forged. He appears to be right in saying so. It means that no valid order at all existed for detaining the petitioner in judicial custody after 17-6-1993. Mr. Javaid Noor, S.S.P., Multan who happens to be present in Court was asked, as to why the petitioner was neither produced before the Court nor any proper application for obtaining remand was made to Court by the police, replied that this case was being investigated by Crimes Branch and that its file has been received back in the district only 3/4 days ago. This explanation hardly answers the objection. It is, however, for him to get hold of the Police Officer for deriliction of duty in dealing with this murder case.
7. There is yet another important feature of the case. The record shows that from 16-2-1993 onwards on each date when the petitioner was produced before the Magistrate a stereotype application running in 4/5 lines (URDU TEXT) signed by S.I./A.S.I. Was moved to the Magistrate for obtaining either for completing investigation or for checking of challan by legal branch and the Magistrate also granted the remand simply writing the words . It may be pointed out that granting of remand to custody is a judicial function. Section 344, Cr.P.C. Enjoins that reasons for remand should be stated in the remand order. I am constrained to say that the police had not submitted any complete/incomplete challan for many months without a reasonable cause and the Magistrate had been remanding the petitioner at the police request in a mechanical manner. Their Lordships of the Supreme Court in Mehar Khan's case 1981 SCMR 267 held:-- ".... It may be observed that in a case in which neither complete nor an incomplete challan (as envisaged by Rule 25.56 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 Procedure Code."
In view of the above observation of Honourable Supreme Court also, I find that in this case the police has not submitted any complete or incomplete challan against the petitioner, therefore, neither cognizance of the case under clause (b) of subsection (1) of section 190, Cr.P.C. Had been taken by the Magistrate nor he could legally remand the petitioner to custody under section 344(1), Cr.P.C.
8. In the above circumstances, I have no option but to hold the detention of the petitioner as illegal and since the petitioner is accused of substantive offence, his trial would take its due course, therefore, I ordered release of the petitioner on bail subject to his furnishing bail bond in the sum of Rs,30,000 with two sureties each in the like amount to the satisfaction of the Additional Registrar of this Court by a short order and these are reasons therefor. Copy of this order shall be sent to S.S.P., Multan and District Magistrate, Multan for taking necessary action against the officers working under them for deriliction of duty in this case.