1. ' WAJIHUDDIN AHMED, J.--The petitioner is the mother of one Maqsood son of Ismail, who is claimed to have been arrested at 18-00 hours on 26-10-1995 by the S.H.O. Orangi Police Station. F .I.R.
2. No,218/95 under section 13-D of the Pakistan Arms Ordinance, 1965, is said to have been lodged at 18-50 hours on the same date as above. It is maintained that it was riot earlier than 30-10-1995 that the accused was produced before A.C.M. & FCM - IV, Karachi (West) who remanded him to police custody from 26-10-1995 to 5-11-1995 in terms of section 167, Cr.P.C. When, avowedly, due to alleged recovery of a 30 bore pistol, the cognate offence under section 13-D of the Arms Ordinance was triable exclusively by the Special Court Suppression of Terrorist Activities (STA). Again, on 6-11-1995, the same Court is shown to have remanded the accused to judicial custody up to 10-11-1995. In course of time when the learned IV A.C.M., Karachi (West) was moved for grant of bail, such was declined on the ground that the learned Magistrate had no jurisdiction in the matter. It is an admitted position that even thereafter no challan was submitted before the S.T.A. Court and, in the meantime, there were perhaps other orders of remand by the same learned Magistrate. The subject Constitutional petition was preferred on 8-4-1996. Such coming before us on 24-4-1996, inter alia, the following observations were made:--- "The learned counsel for the petitioner says that the detenu has been interned since 26-10-1995 and no challan has been submitted so far before the concerned S.T.A. Court. It is further urged that the provisions of sections 54 and 173, Cr.P.C. Have also been violated.
3. ' On his part, the learned Additional Advocate-General, Sindh has submitted a report from the concerned S.H.O. And it is maintained by him that interim challan was submitted but refused to be entertained by the relevant Court. At any event, it is pointed out that final challan is ready and is available with the officer, present in Court. Let, in the first instance, the final challan be submitted in Court today itself. Correspondingly the petitioner or the detenu would be free to apply for bail before the concerned Court."
4. ' The petition was again posted in Court on 25-4-1996 and, because no challan was shown to have been submitted even at that time, the same was allowed for reasons to be recorded separately and the detenu was directed to be released forthwith upon the under-noted short order being recorded:-- "In spite of the undertaking rendered before us on 24-4-1996, the officer present did not submit the requisite challan before the concerned S.T.A. Court on 24-4-1996 and that was the position when the case was taken up during the earlier part of the day. However, the learned A.A.-G. Stated that such challan was going to be submitted during the course of the day. Even now, that is to say 1-25 p.m. When we again took up and heard this case, it is merely reported that an officer has gone to submit the referred challan but no firm statement is made whether or not the same has so far been submitted.
5. ' In the circumstances, this petition is allowed, for reasons to be recorded separately. The detenu shall be released forthwith unless required in any other case."
6. ' In so far as the Code of Criminal Procedure is concerned, the applicable provisions are to be found in sections 61, 62, 167, 173 and 344 thereof which, for ready reference, are reproduced hereinbelow:- -- "61. No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court.
62. Officer-in-charge of a police station shall report to the District Magistrate, or, if he so directs, to the Sub-Divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise.
7. 167.--(1) 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 incharge of the police station or the police-officer making the investigation if he is not below the rank of the 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.
(2) 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: ' Provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of,the police.
(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.
(4) The Magistrate giving such order shall forward a copy of his order, with his reasons for making it, to the Sessions Judge.
(5) Notwithstanding anything contained in sections 60 and 61 or hereinbefore to the contrary, where the accused forwarded under subsection (2) is a female, the Magistrate shall not, except in the cases involving Qatl or dacoity supported by reasons to be recorded in writing, authorise the detention of the accused in police custody, and the police officer making an investigation shall interrogate the accused referred to in subsection (1) in the prison in the presence of an officer of jail and a female Police Officer.
(6) The officer incharge of the prison shall make appropriate arrangements for the admission of the investigating police officer into the prison for the purpose of interrogating the accused.
(7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1) be taken out of the prison, the officer incharge of the police station or the police officer making investigation, not below the rank of Sub-Inspector, shall apply to the Magistrate in that behalf and the Magistrate may, for the reason to be recorded in writing, permit taking of accused out of the prison in the company of a female police officer appointed by the Magistrate: ' Provided that the accused shall not be kept out of the prison while in the custody of the police between sunset and sunrise.
8. 173.--(1) Every investigation under this Chapter shall be completed without unnecessary delay, and as soon as it is completed, the officerin-charge of the police station shall through the Public Prosecutor--
(a) forward to a Magistrate empowered to take cognizance of the offence on a police-report, a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person if any, by whom the information relating to the commission of the offence was first given: #TBS 522 Karachi #TBE ' Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.
(2) Where a superior officer of police has been appointed under section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer; and he may, pending the orders of the Magistrate, direct the officer-in-charge of the police station to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reasons thinks fit to furnish it free of cost.
(5) Where the officer-in-incharge of a police station forwards a' report under subsection (1), he shall alongwith the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.
9. 344.--(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, therefore, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such times as it considers reasonable, and may by a warrant remand the accused if in custody: ' 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.
10. ' 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."
11. A bare perusal of the afore-quoted sections would reveal that once a person concerned in or suspected to have committed a cognizable offence is arrested, it is expected that the investigation would be completed within 24 hours of the arrest (section 61, Cr.P.C.). This is in line with Articles 9 and 10 of the Constitution of Pakistan, the first of which guarantees that no person shall be deprived of life or liberty save in accordance with law and the second that every person who is arrested and detained in custody shall be produced before a Magistrate within a period of 24 hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. Correspondingly, all officers-incharge of the concerned police stations are mandatorily required to report to the District Magistrate or, if he so directs, to the Sub-Divisional Magistrate, the cases of all persons arrested without warrant within the limits of their respective stations whether such persons have been admitted to bail or otherwise. The last is the effect of section 62, Cr.P.C. This is followed by section 167 of the Code which postulates that whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours prescribed by section 61 (ibid), and there are grounds for believing that the accusation or information is well founded, the officer-in-charge of the police station or the investigating officer, being not below the rank of Sub- Inspector, shall forthwith transmit to the nearest Magistrate a copy of the entries in the diary relating to the case and shall at the same time forward the accused to such Magistrate. The Magistrate to whom the accused is forwarded, in turn, may from time to time authorise the detention of the accused in such custody as aforesaid for a period not exceeding 15 days. It is also a duty of the Magistrate under reference to order the accused to be forwarded to a Magistrate having jurisdiction in the matter if he himself does not have such jurisdiction and if he considers further detention to be unnecessary. In all circumstances, a Magistrate authorising detention in the custody of the police is required to record his reasons for so doing. What is more, a copy of the order is also to be forwarded by the Magistrate, with his reasons for making it, to the Sessions Judge. These are no trifling matters and, quite plainly, neither the police functionaries nor the concerned Magistrate seems to have been mindful of the duties and obligations cast upon either of them. The custody, accordingly, stands relegated to an unlawful one and must be so found. To be specific, this arises because, in the first place, the accused, in patent disregard of law and Constitutional guarantees, is not shown to have been produced before a Magistrate within 24 hours of his arrest and when produced on 30-10-1995, the abovesaid order of remand is shown to have been passed. Secondly, the aforesaid order of remand was passed Ex Post Facto and, apparently, retroactively on a police report dated 27-10-1995. Thirdly, as required, no information before the Sessions Judge and the District Magistrate was apparently laid. Fourthly, the successive orders of remand, which are presumed to be judicial orders, are non-speaking in 'nature, sans any reasons. Fifthly, the remands in totality have far exceeded the prescribed limit of 15 days in the whole. Sixthly, the concerned police officers failed to transmit a copy of the entries in the diary or to forward the accused to the concerned Court. Lastly, the Magistrate, who himself acknowledged lack of jurisdiction, also likewise omitted to forward the accused before the Court of competent jurisdiction. Reference in support may he made to a Division Bench judgment of this Court in Muhammad Siddiq v. Province of Sindh, PLD 1992 Karachi 358.
12. ' Coming to investigation itself, section 173(1)(a) of the Code enjoins that every investigation under Chapter XIV shall be completed without unnecessary delay and, as soon as completed, the officer- in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused, if arrested, has been forwarded in custody or has been released on his own bond. A communication is also correspondingly to issue of the action taken to the person, if any, by whom the information relating to the commission of the offence was first given. Where, however, investigation is not completed, within a period of 14 days from the date of recording of first information report under section 154, the officer-in-charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate an interim report in the form prescribed stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report unless, for reasons to be recorded, the Court decides that the trial should not commence. In turn, section 344, Cr.P.C.
13. Stipulates that if from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone any inquiry or trial, the Court may,.By order in writing stating the reasons therefor, postpone or adjourn the same on such terms as it seems fit and for such time as it considers reasonable and may, by a warrant, remand the accused, if in custody, provided always that no such remand shall be made for a term exceeding 15 days at a time.
14. Applying sections 173 and 344, Cr.P.C. To this case, it is obvious that no report in terms of section 173 was submitted either, again rendering the continued custody of the accused without lawful authority. Section 344, so far as it goes, never came into play because no challan, interim or final, was ex facie placed before the Court concerned which even if such was done, the Court could remand the accused only in the manner mandated by that section and not otherwise. Relative to the effect of section 173, Cr.P.C., as applied to S.T.A. Proceedings, reference with advantage may be made to a Division Bench decision of this Court in Mooso v. The State, 1996 PCr.LJ 361, whereas pertinent to the mandate in section 344, Cr.P.C., two other decisions of the same Court in Darshan Singh v. The State PLD 1957 Karachi 210, and The State v. Samiullah Khan PLD 1959 Karachi 157.
15. Which have been cited at the bar, may be drawn upon.
16. ' Before parting with the case, we may here touch upon the impact of the above provisions on proceedings having a nexus with the jurisdiction of a Special Court functioning under the Suppression of Terrorist Activities (Special Courts) Act, 1975. Such Act, promulgated as Act X of 1975, is unquestionably a special law and arguably a complete code in itself. However, while section 10 thereof declares that the provisions of the Act shall have effect notwithstanding anything contained in the Code of Criminal Procedure or any other law for the time being in force, the prohibition in section 10 applies essentially to such parts of the Code of Criminal Procedure as are manifestly inconsistent with what is contained in the Suppression of Terrorist Activities Act. To put it more positively, those provisions of the Code which ex facie are not in conflict or otherwise inconsistent with the special law, if otherwise invocable or applicable, may yet be resorted to. At the same time, however, where the 1975 Statute prescribes its own procedure, such is to be preferred to anything similarly provided in the Code.
17. ' Speaking broadly, there are some provisions in the Code of Criminal Procedure which have expressly been drawn upon by the 1975 Act itself and there are others which implicitly may be resorted to in order that the special Act can be fully, effectively and justly implemented. As to explicit mention, section 5 of the Suppression of Terrorist Activities Act mandatorily requires the officer-in-charge of a police station to complete the investigation and forward directly to the Special Court a report under section 173 of the Code within 14 days in respect of a case triable by such Court with a proviso that the Special Court may extend the time within which such report is to be forwarded in a case, where good reasons are shown for not doing so, within the time specified.
18. Any default on the part of an officer-in-charge of a police station, an Investigating Officer or any other person, required by law to perform any functions in connection with the investigation. Which results in, or has the effect of delaying the investigation or the submission of the report, is to be deemed a willful disobedience of the order of the Special Court and dealt with under law accordingly. Likewise, section 5-A of the Act, in applicable cases, requires compliance with section 87 of the Code. In turn, section 6 confers the powers enjoyed by a Court of Session exercising original jurisdiction under the Code upon a Special Court. Besides, in the current state of law upon judicial pronouncements, some provisions in sections 497 and 561-A in the Code have been applied to the proceedings governed by the Suppression of Terrorist Activities Act. On such reasoning, we are constrained to conclude that the requirements of Articles 9 and 10 of the Constitution as read with section 61 of the Criminal Procedure Code cannot be excluded in relation to matters falling within the ambit of the 1975 law. Similarly, the postulates of section 167 concerning the pre-trial juncture of proceedings relative to an accused person have to be given effect to even in such cases as may ultimately come to be lodged before a Special Court under section 5 of the special law. It is only when cognizance is taken by a Special Court under section 5 of a matter covered by the schedule that the Special Court comes to be seized of the proceedings.
19. Accordingly, if before that point of time is reached and a person contrary to Constitutional guarantees or statutory safe-guards is held in unlawful custody, redress, if sought, cannot be denied to him. Having found, as we have already done, that the mandates in Articles 9 and 10 of the Constitution and sections 61, 62 and 167 of the Criminal Procedure Code stood disregarded and the accused denied his valuable legal rights, we ordered him to be set free if not required in any other case, in terms of our short order reproduced above. The foregoing were the reasons for that order.