' Involving the same questions of law and facts and arising out of one and the same complaint of petitioner Zahid Saleem, the present petition (Criminal Miscellaneous No,3 of 1995) for cancelation of bail and another Criminal Miscellaneous No,5 of 1995 filed under section 561-A, Cr.P.C., both by Zahid Saleem petitioner, shall be disposed of through this single order.
2. Short but precisely relevant background of the case is that Zahid Saleem lodged a complaint under section 406, P.P.C. Read with section 11 of the Frontier Crimes Regulation, 1901 against Shahid Nawaz and Zain-ul-Abideen, respondents/brothers allegedly for the commission of criminal breach of trust regarding a sum of Rs, twelve laces which amount allegedly was entrusted by the complainant to the respondents at Jandola, within the limits of Federally Administered Tribal Areas.
The Assistant Political Agent/Additional District Magistrate (F.C.R.) Frontier Regions, Tank issued a warrant of arrest against Shahid Nawaz Baluch and Zain-ul-Abideen through the Deputy Commissioner, D.I. Khan who marked it to the Assistant Commissioner D.I. Khan, who in turn, forwarded it to the S.H.O. Cann. For compliance. The warrant, dated 29-11-1994 was executed on 30- 11-1994 when S.H.O. Cantt. Arrested Zain-ulAbideen and produced him before Sub-Divisional Magistrate, D.I. Khan. The learned Sub-Divisional Magistrate took cognizance under section 86-A, Cr.P.C. Remanded the accused Zain-ul-Abideen to judicial lock-up and the Political Authorities concerned were asked to furnish record for 14-12-1994. It appears that some application by Major Saleem Nawaz, the brother of the accused, was received by them addressed to the Commissioner D.I. Khan where after the learned Sub-Divisional Magistrate changed his color into that of Assistant Commissioner and transferred the matter for compliance on 7-12-1994 to E.A.C. (Judicial), D.I. Khan in spite of the fact that as Ilaqa Magistrate he already had taken cognizance under section 86-A, Cr.P.C. On 30-11-1994.
3. Zain-ul-Abideen was produced before Mr. Faridullah Khan Wazir, Magistrate 1st Class, D.I. Khan by the police for proceeding under section 86-A, Cr.P.C. The first thing that Mr. Faridullah Khan Wazir did was to release Zain-ul-Abideen on bail against which the cancellation moved by the complainant failed before the learned Sessions Judge, D.I. Khan on 2-1-1995 and hence Criminal Miscellaneous Bail Cancellation Petition No,3 of 1995 before this Court.
4. On the other hand E.A.C. (Judicial) Mr. Shafirullah Khan who by then was seized of the proceedings under section 86-A, Cr.P.C. Summoned the accused Shahid Nawaz and the complainant Zahid Saleem. It is to be noted here that till that time (14-12-1994) accused Shahid Nawaz had never stood arrested. He appeared on 27-12-1994 and the first thing that the learned Magistrate though important to do was the release of Shahid Nawaz on bail. These proceedings taken and the bail order of Shahid Nawaz passed by the Magistrate is challenged under section 561-A, Cr.P.C. By the complainant through the aforesaid separate Petition No,5 of 1995.
5. Quite remarkable is the fact that everybody had taken cognizance under section 86-A, Cr.P.C.
But without going through the section itself. Section 86-A, Cr.P.C. Was enacted by the law-maker with the usual wisdom so that a citizen of Pakistan is not removed in custody to the Tribal Territory without the Ilaqa Magistrate becoming satisfied of the fact that there is a strong or probable presumption that the person arrested committed the offence mentioned in the warrant issued by some authority in the Tribal Area. It is for all such intents and purposes that the Magistrate within whose jurisdiction the arrest of the accused is made, is empowered to hear the case in the same manner as if the offence had been committed within his jurisdiction. Such powers include the power to order the production of evidence. All this would be done by such Magistrate only to see if the man produced before him in custody is linked with the commission of offence with strong or probable presumption. If he happens to come to such conclusion in positive, he shall direct the removal of the arrested person in custody to the Authority in the Tribal Area that issued the warrant. Such removal in custody is mandatory under section 86-A, Cr.P.C. On the other hand, if such Magistrate does not have a strong or probable presumption of the commission of offence by the accused produced before him in custody, he shall obviously refuse the removal in custody of the accused to the Tribal Area and would release him
6. In the instant case, Zain-ul-Abideen accused is arrested and Shahid Nawaz had surrendered in local limits of the area falling within the jurisdiction of Sub-Divisional Magistrate, D.I. Khan. The S.H.O.
Cantt. Had rightly produced Zain-ul-Abideen before Sub-Divisional Magistrate but he avoided disposal and thus the two accused were released by two different Magistrates. The procedure adopted by the lower forums was totally illegal and in utter violation of the provisions of section 86-A, Cr.P.C. This Court, therefore, can take notice of the matter under section 561-A, Cr.P.C. Read with section 439, Cr.P.C. And also can invoke the provision of section 497(5), Cr.P.C.
7. Consequently both the applications are accepted, the impugned orders, dated 3-12-1994 and 27-12-1994 of the two Magistrates of the 1st Class and 2-1-1995 of the learned Sessions Judge, D.I.
Khan are set aside, the to the respondents Shahid Nawaz Baluch and Zain-ul-Abideen Baluch is cancelled. They are taken into custody and directed to be produced before the Sub-Divisional Magistrate, D.I. Khan on 29-3-1995 for proceeding strictly in accordance with section 86-A, Cr.P.C.
He shall not waste the time and further, because record of Political Authority at Tank stands received here which is sent herewith to the Sub-Divisional Magistrate. During such proceedings, the two accused shall remain in judicial lock-up. The learned Sub-Divisional Magistrate D.I. Khan shall proceed independent of what is brought on file of Assistant Political Agent, Tank and may himself summon the witnesses if deemed necessary. The original file of Assistant Political Agent, Frontier Region, Tank be sent to the Court concerned with direction to forward the same to the original quarter when no more required.