' Facts, briefly stated, are that vide F.I.R. 40 Police Station Oghi dated 18-3-1993 there was registered a murder case against Hafizur Rehman accused by one Abdur Rehman brother-in-law of Speen Gul deceased. Hafizur Rehman accused was arrested the same day in a 'Bazar' and a .30 bore Pistol the alleged crime weapon was recovered from him which was onwards sent to Arms Expert along with 2 crime empties recovered from the spot and a positive report was received from the Arms Expert. On 19-3-1993 Hafizur Rehman was produced before the Magistrate and he was remanded to police custody for 3 days with direction for production before the Court on 22-3-1993, that on that date the accused was produced with an application that he was ready to make a judicial confession but on appearance before the Magistrate the accused did not make a confession and as such he was remanded to judicial custody till 5-4-1993. On the day the S.H.O.
Applied for his further judicial remand due to incomplete investigation and the Magistrate ordered the accused's judicial custody in prison till 194490 that once again the Magistrate remanded the accused to the judicial custody till 29-4-1993. On 29-4-1993 the accused was produced in Court and was sent to judicial lock-up to be produced on 10-54993 that thereafter on 10-5-1993 Magistrate remanded the accused to judicial custody till 22-5-1993. It is pertinent to point out that the accused was not produced before the Magistrate on 5-4-1993, 19-4-1993 and 10-5-1993 that he was sent to further judicial custody on those dates.
2. Hafizur Rehman accused-petitioner was refused a bail by the Courts below on merits and apparently there could not be taken any exception to those orders due to the ocular evidence furnished by the P.Ws. Referred to in the F.I.R. And one Burhan, a third person, the Arms Expert report, recoveries and motive etc. Learned counsel for the accused-petitioner raised a point that accused has been remanded to judicial custody by the Magistrate, on three specified occasions in the absence of his physical attendance by the Magistrate which amounted to accused's illegal confinement and detention and as such he was entitled to bail as of right. In support of his above contention he placed reliace on an unreported judgment of this Court dated 23-9-1989 in Cr.
M.No,147 of 1998 Raja Muhammad Farid etc. v. State PLD 1989 Pesh. 43, Asif Mehmood alias Kuko and another v. The State and 1992 PCr.LJ 357, (Peshawar). On the other hand it was argued that for remand to judicial custody by a Magistrate the physical attendance of an accused is not a mandatory requirement and that herein the accused has been last remanded to judicial custody by a valid order passed in his due presence and attendance and that even otherwise the accused is not entitled to bail as of right on the so-called ground of illegal confinement, moreso, when found involved in a murder case punishable with death or imprisonment for life. In support reliance was placed on 1993 PCr.LJ 43, PLD 1980 Lah. 127, AIR 1971 SC 178, AIR 1073 SC 850 and 1981 SCMR 267.
3. Mufti Muhammad Idris Advocate, counsel for the accused-petitioner, Qazi Abdul Bari Advocate, counsel for the complainant and Mr. Muhammad Aslam Khan, AA.-G. For the State besides Mr. Saeed Akhtar Khan and Mr. Muhammad Akbar Khan Swati, Advocates were heard as amicus curiae on the subject point.
4. The first point needs resolution is if the Magistrate in the case exclusively triable by a Court of Session was competent to remand the accused to judical custody after the expiry of 15 days or for that matter 17 days as per (Amendment) Act No, XXV of 1992. Now the correct legal position is that (under section 167, Cr. P.C. a Magistrate can authorise the detention of an accused in custody for a term not exceeding 15 days in the whole while under sction 344, Cr. P.C. An accused being in custody can be remanded for a term not exceeding 15 days at a time in case of absence of witnesses or any other reasonable cause necessary or advisable for the postponement or adjourninent of an inquiry or trial. Section 173, Cr. P.C. As amended by Act No, XXV of 1992 provides for submission of an interim report in the form prescribed by the Provincial Government stating the result of investigation till then within 3 days of the expiration of 14 days from the registration of the case through the Public Prosecutor and the Court has to commence the trial on the basis of such interim report unless he decides otherwise that the trial should not so commence for certain reasons. The amendment effected by Act XXV of 1992 has further provided that Officer In charge of the Police Station shall along with interim report produce unofficial witnesses in the case who shall be bound down by the Magistrate for appearance before him or some other Court on the date fixed for trial. Section 190 (3), Cr. P.C. Obliges a Magistrate taking cognizance of an offence triable exclusively by a Court of Session to send the case to the Court of Session for trial without recording any evidence. Now here a question would arise if an offence of murder exclusively triable by a Court of Session in which there has been submitted an interim report in the Court of Magistrate under the proviso to subsection (1) of section 173, Cr.P.C. Within 3 days of the expiration of a period of 14 days from the date of the registration of the case the said interim report would be straightaway sent to the Court of Session for trial without recording evidence by the Magistrate and as such after the expiration of 17 days it shall be the Court of Session to postpone or adjourn the proceedings and to remand the accused in custody or that the Magistrate may withhold the transmission of case to the Court of Session for certain valid reasons and till then the Court of Magistrate shall have the power to postpone or adjourn the proceedings and to remand the accused to custody under section 344, Cr. P.C. In fact the controversy has been resolved by the Supreme Court in a judgment published in 1981 SCMR 267 (Mehr Khan v. Yaqoob Khan and another) and it was held that section 344, Cr.P.C. Continued to refer to inquiry or trial and the postponement of ,the commencement or adjournment thereof was to be considered necessary or advisable for certain valid reasons that the Court of Magistrate shall have the power to postpone or adjourn the proceedings and to remand the accused in custody and the word 'inquiry' was given wider meaning also to include that while taking cognizance of an offence under section 190(1), Cr.
P.C. The Magistrate may still be required to apply his mind to ascertain if the case in question is required to be sent for trial to Court of Session or otherwise and till then that the case is not sent to the Court of Session pending such inquiry it shall only be the Court of Magistrate with power to postpone or adjourn proceedings and to remand the accused in custody under section 344, Cr.P.C.
And the Court of Session shall not be deemed seized of the case in order to exercise power to postpone or adjourn proceedings and remand the accused in custody. Act No, XXV of 1992 has in fact placed the Investigation Agency under obligation not to withhold the submission of challan into the Court but to mandatorily send an interim report within 17 days of the registration of the case and the Court of Magistrate has been empowered to commence the trial on the basis of such interim report or not to commence the trial for certain valid reasons to be recorded. Further a Magistrate taking cognizance upon such interim report in writing of facts of a case triable exclusively by a Court of Session shall send the case to the Court of Session for trial without recording any evidence but he can enquire into the matter if the case is triable by the Court of Session or otherwise and till the despatch of the case to the Court of Session for trial he shall be considered seized of the case with power to postpone or adjourn the proceedings and remand an accused in custody within the meaning of section 344, Cr. P.C. Hence the question is answered that till the sending of the case to the Court of Session it is the Court of the Magistrate to have power to postpone or adjourn the proceedings and remand the accused in custody under section 344, Cr.
P.C. And the Court of Session shall not have the power to adjourn or postpone the proceedings and remand the accused to judicial custody as at the stage the said Court shall not be deemed seized of the case.
5. Here in the case the accused was remanded to custody by the Magistrate but on three occasions without his physical attendance. There has not been referred to a case-law that the physical attendance of an accused before the Magistrate at the time of his remanding to judicial custody is mandatory while on the other hand AIR 1971 SC 178 has laid down a rule that there is nothing in the law which requires the personal presence, of the prisoner before the Magistrate because that is a rule of caution for Magistrate before granting remand at the instance of the police and even if it be desirable for a Magistrate to have prisoner produced before him and to recommit him to further custody a Magistrate can act only as the circumstances permit. The above rule was further followed in AIR 1973 SC 850 and it was held that an order of remand cannot be considered to be invalid 'merely because an accused has not been produced before the Magistrate.
6. Now we proceed to determine if an accused's previous detention being illegal for want of competent remand order could be a ground to release him on bail. On the subject point the unreported judgment of this Court in Raja Muhammad Farid etc. v. State petitioners were released on bail since they were found confined in jail for more than one year without any order of remand of any Court. In PLD 1989 Pesh. 43 accused was released on bail under the third proviso to subsection (1) of section 497, Cr. P.C. For having been detained in custody for a period exceeding two years and since in his case the accused was further found to have been remanded to custody not under the orders and signatures of the Court and such custody was held amounting to illegal detention hence the same was acknowledged as added ground for releasing the accused on bail.
In 1992 PCr.LJ 357 again this Court had released the accused on bail since no judicial remand for custody of the accused had been obtained under section 344, Cr.P.C. For a certain period which amounted to illegal detention although there was subsequently obtained a valid remand order pending the bail petition in this Court but still the Court observed that there was no option with him but to release the accused-petitioner on bail. In the said case there was referred to and placed reliance on an earlier judgment of this Court published in PLD 1989 Peshwar 43 in which the plea of invalid remand order was acknowledged as an added ground for the release of the accused on bail. On the contrary there was referred to a judgment of the Lahore High Court published in 1993 PCr.LJ 43 in which it was held that even if accused's previous detention was illegal for want of competent remand order the same could hardly be a ground to release him on bail when admittedly his further confinement in jail was under a valid warrant issued by the trial Court and accordingly the accused was refused a bail. The above discussion on the point proceeds to resolve the matter that accused's detention for want of competent remand order would, no doubt, amount to illegal confinement and the same can be a valid ground to release him on bail. However one need not go to the extent to hold that there shall not be left any option with the Court to release the accused on bail if held in detention under an invalid remand order although the accused may have been prima facie found guilty of the offence covered by the prohibitory clause contained in subsection (1) of section 497, Cr. P.C. In that situation the Court may refuse bail to the accused- petitioner. Applying the aforesaid ruling to the facts of the case, I would dist. The bail application after having found, as earlier pointed out, that the prosecution has succeeded to prima facie connect him with the commission of an offence of murder punishable with death or imprisonment for life and his remand has also not been found wholly invalid amounting to illegal confinement but that the accused was held in custody under a valid remand order at the relevant stage.