' JAVED IQBAL, J.--- This is a Constitutional petition preferred on behalf of Din Muhammad under Article 199 of the Constitution of Islamic Republic of Pakistan (hereinafter referred to as the Constitution) with the following prayer:-- "(i) to declare that order, dated 4-11-1996 of respondent No, I is illegal, improper, unlawful and violate of Constitutional and consequently null and void;
(ii) to direct the respondents to produce said two persons namely Riaz Gul and Azizullah before this honorable Court and they be transferred to judicial custody so that their fives are saved;
(iii) to direct respondent No,4 not to transfer their custody to police;
(iv) such other relief that may be deemed appropriate be also granted along with costs."
2. Briefly stated the facts of the case are that Riaz Gul son of Muhammad Jan and Azizullah son of Muhammad Murad, who are first cousins of the petitioner were arrested by police of Police Station Satellite Town, Quetta, in connection with Crimes Nos.271, 272, and 273 of 1996 and Crime No,11 of 1996 of Police Station Dera Bugti on or about 26-9-1996. After completion of investigation Riaz Gul and Muhammad Murad were remanded to judicial custody on 10-10-1996 and sent to District Jail, Quetta, but were re-arrested by the police on the purported orders of District Magistrate, Quetta, dated 24-10-1996 and they were subjected to maltreatment and torture by police so that statement of their own choice could be extracted. Being aggrieved the petitioner filed a Constitutional Petition (No,.341 of 1996) which was dismissed by this Court on the basis of categoric and unqualified statement by the learned Additional Advocate-General that they were no more required in any other case except the registered one, but contrary to his undertaking District Magistrate again allowed remand of the detenues on 4-11-1996 with mala fide intention and in disregard of the undertaking given by learned Additional Advocate-General and mechanical exercise by remanding Riaz Gul and Muhammad Murad to police custody being unlawful and unconstitutional is liable to be set aside as the action of District Magistrate, Quetta is in violative of the settled principles of law and relevant provisions of Cr.P.C.
3. It is mainly contended by Mr. Amanullah Karnani, Advocate that the District Magistrate, Quetta has no lawful authority conferred upon him to issue remand order and transfer the custody of detenues which was done with mala fide intention and ulterior motive. It is next contended that admittedly there is no case registered against the detenues and they have undergone the remand period for the cases already registered. It is argued that the District Magistrate has acted illegally and without lawful authority and the custody of the detenues could not be handed over to police, on different occasions for different cases.
4. Chaudhry Ejaz Yousaf, Additional Advocate-General appeared on behalf of State and toed the line as adopted by learned District Magistrate while furnishing his parawise comments and contended that the custody of the detenues was granted to Police Station Dera Bugti in case F.I.R.
No,11 .Of 1996 under sections 302/324/435/427/147/148 and 149, P.P.C. For which a written request was received from District Magistrate Dera Bugti. It is contended that detenues were again produced for further investigation on 29-10-1996 by Dera Bugti Authorities for remand but it was refused for want of jurisdiction by District Magistrate. It is also contended that no maltreatment whatsoever was made and no such complaint was made by detenues while appearing before the concerned Magistrates, who granted remand and moreso, no application was moved to any higher authority through Superintendent Jail. It is also contended that the detenues were required in different heinous offences and for the purposes of investigation the remand was given in accordance with law, and relevant provision of Cr.P.C., and no illegality whatsoever has been committed. It is also mentioned that the detenues were arrested from the vehicle alongwith three klashnikovs with silencer, 8 loaded magazines and 4 empty magazines which were concealed in an artificial cavity and as such vide order, dated 24-10-1996 they were handed over to Dera Bugti Police for investigation in case F.I.R. No,11 of 1996 got registered under section 30213241435/427/147/148/149, P.P.C. At Police Station Dera Bugti and investigation was completed at Quetta and detenues were not transferred out of territorial limits of Quetta District and further remand was refused due to want of jurisdiction which is indicative of the fact that prescribed legal procedure was followed in letter and spirit. It is also mentioned that different cases were registered at different police stations and investigation was to be completed and as such there was no other way out but to hand over the custody of detenues to police from jail.
5. We have carefully examined the respective contentions as adduced on behalf of petitioner and for State in the light of relevant provisions of law and available record. Let we make it clear at the outset that Mr. Amanullah Kanrani, Advocate has not pressed his petition as remand period was already exhausted but he contended that the fundamental rights as guaranteed by the Constitution should not be infringed by Government functionaries on flimsy grounds and they should not be allowed to violate the prescribed procedure as enumerated in Code of Criminal Procedure and prayed that strict notice he taken for the grave violation and issuance of necessary direction to the delinquents to remain careful and vigilant in future and lawful procedure should not be violated.
In so far as the provisions as contained in sections 61, 167 and 344, Cr.P.C., are concerned the same are free from any sort of ambiguity and do not call for any interpretation as it would merely he a scholarly exercise. The pith and essence of the provisions as contained in the above referred to sections is that where a person is arrested without warrant his detention cannot cross the limits of 24 hours and before expiry of the said stipulated period (which is mandatory) he should be produced before nearest Magistrate who may pass order for his remand under section 167, Cr.P.C., but his detention cannot be exceeded more than 15 days under such remand and moreso, the accused may be referred to a Magistrate having jurisdiction to adjudicate upon the matter and such Magistrate while exercising his powers as conferred upon under section 344, Cr.P.C., remand the detenue into custody for a term not exceeding 15 days at a time. Whatever may be the case the grant of remand should not be a mechanical exercise and it must be ascertained by the Magistrate concerned that the accusation is well-founded and remand would render substantial assistance in investigation of the matter. The question pertaining to remand was examined in PLD 1968 Pesh. 140 and it was observed as follows:-- "It is indeed gravely disquieting to note that in the absence of any evidence or circumstances which could not justify even a 'suspicion muchless proof against the respondents for complicity in the kidnapping, the local police should have felt impelled to ask for several remands including police custody, and the judicial conscience of the Magistrate should have been so easily moved as to grant the remands contrary to the statutory duty cast on him under section 167, Cr.P.C. To take the trouble to study the police diaries and to see for himself as to what are the accusations against the accused and what is the evidence which the police has been able to secure to justify the granting of remands. The right to personal liberty is one of the most precious rights of the subject which has even during the foreign rule been very jealously guarded by the Courts against any invasion. Under the present Constitution, a citizen has a Constitutional guarantee of personal liberty and under Article 2(i) of the Constitution he has the right ' ... To be treated in accordance with law, and only in accordance with law ... ' The detention of a citizen by the police on mere ' suspicion' is to be very strongly deprecated and the granting of remands by the Magistrates without looking into the police Ziminis and satisfying themselves whether there are grounds for believing that the accusation or information against the accused is well-founded is not only to be condemned, but would be taken a serious notice of by this Court. The arrest of a citizen without any legal justification and his detention through unjustified remands besides being illegal creates a sense of injustice and insecurity in the minds of the people and no greater mischief than this can be imagined."
6. The provisions as enumerated in sections 61, 167 and 344, Cr.P.C. Were also examined in case titled Muhammad Siddiq v. Province of Sindh PLD 1992 Kar. 358 and relevant portions whereof are reproduced herein below for ready reference:- "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 Procedure Code to report to the concerned District Magistrate or 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 in charge of that police station to the District or Sub-Divisional Magistrate is not matter of sending greetings to them but report is sent to such Magistrate so that they can scrutinise 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.
' We will not 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.--- (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-in-Incharge 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 hereafter 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 authorize 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 no jurisdiction to try the case or (send) it for trial, and consider 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 authorizing under this section detention in the custody of the police shall record his reason 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.'
' 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 maximum of 15 days subject to the order of a Magistrate in cases where police is unable to complete the investigation within 24 hours of the arrest. The provision of section 167, Criminal Procedure Code being in the nature of an exception and also amounting to putting restriction on the right of personal liberty granted under the Constitution has to be very strictly construed and unless all the requirements of section are compiled 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 mandatory requirement of law. The purpose behind 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 provisions contain in section 50 or 53, Criminal Procedure Code or any other illegal action taken by police for the purpose of extorting confession of any other act. A Magistrate before whom a person under arrest is produced for remand is expected to put specific question 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 contained 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 Magistrate to act with due caution so that the liberty of a citizen is not jeopardized.. 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 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 on record.
' 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 straightaway. A Magistrate is expected to act stringently in matters of grant of remand and it will always be in 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.
' 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 a persons by police in exercise of their powers under section 54, Criminal Procedure Code while a Sessions Judge has to be kept informed by Magistrate who allow remand of persons for the purpose of investigation beyond a period of 24 hours. A Sessions Judge too like a District Magistrate as pointed out hereinabove is expected to keep vigilance on exercise of such powers by Magistrates.
' 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 that 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. Lekhraj 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 Sindh will take appropriate action against him.
' We hope that the Magistrate 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 Magistrate in this respect such Magistrates will be exposing themselves to the peril of having committed violations of mandatory provisions of law.
' 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.
' 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 IIIrd and IInd Class 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 try 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 under-trial 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 under-trial prisoner if required by police in the investigation of another offence can under order of Magistrate under section 167, Criminal Procedure Code be remanded to police custody. By taking this view we are supported by the decision contained in the case of the State v. Sukh Singh and others reported in AIR 1954 Rajasthan 290, case of Ghulam and 3 others v. The State and another reported in PLD 1971 Lah. 741 and the case of State v. Fateh Muhammad published in 1972 SCMR 182.
' 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 Lah.
1400."
7. In the light of abovementioned discussion it can be inferred that once a person is sent to judicial custody, his custody cannot be handed over to police subsequently and successive remand cannot be given in different cases, but if the cases are registered at different places or different police stations remand can be given after completion of necessary formalities which are mandatory in nature and should not be ignored and it must be kept in view that where an accused person is in custody it is necessary that trial Court should be kept aware regarding his remand and prior approval whereof would be necessary. There is no bar in the provisions as contained in sections 167 and 344, Cr.P.C. That custody of an accused person cannot be handed over to police if he is required for the purpose of investigation in a case different from one in which he had already sent to judicial custody. It has been observed with grave concern that the procedure as enumerated in sections 61 and 167, Criminal Procedure Code is not being complied within letter and spirit and, we feel it essential that once again directions should be issued to all concern for compliance of the mandatory requirement as enumerated in the provisions as contained in sections 61, 167 and 344, Cr.P.C. It would not be out of place to, mention here that time and again such directions were issued by various judicial authorities but there was a little response from police and Magistracy. We are, inclined to follow the directive as issued by Lahore High Court 1984 PCr.LJ 2588 and the same are circulated for its strict adherence:-- "(1) During first 15 days, the Magistrate may authorize the detention of the accused in judicial custody liberally but shall not authorise the detention in the custody of the police except on strong and exceptional 'grounds and that too, for the shortest possible period;
(2) The Magistrate shall record reasons for the grant of remand.
(3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. To the Sessions Judge concerned;
(4) After the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety.
(5) After the expiry of 15 days, no remand shall be granted unless, the application is moved by the police for the grant of remand/adjournment.
(6) The application moved by the prosecution/police after the expiry of 15 days of the arrest of the accused, be treated as an application for adjournment under section 344, Cr.P.C.
(7) Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted.
(8) The Magistrate shall not grant remand/adjournment in the absence of the accused.
(9) The Magistrate should avoid giving remand/adjournment at his residence.
(10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment/remand.
(11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same.
(12) The Magistrate shall examine police file before deciding the question of remand.
(13) If no investigation was conducted after having obtained remand, the Magistrate shall refuse to grant further remand/adjournment.
(14) The Magistrate shall not allow remand/adjournment after two months (which is a reasonable time) of the arrest of the accused unless it is unavoidable.
(15) In case, complete challan is not submitted, the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses.
(16) If the challan is not submitted within 2 months, the Magistrate shall report the matter to the Sessions Judge of the District and also bring the default of the police to the notice of Superintendent of Police of the District.
(17) The Magistrate shall not grant remand mechanically for the sake of cooperation with the prosecution/police.
(18) The Magistrate shall always give reasons for the grant of remand and adjournment.
' The Magistrates should realize that they are answerable and accountable to the High Court for the illegalities and irregularities done by them and that the High Court under section 439, Cr.P.C. Is quite competent to examine the correctness of orders passed by them and in case they violate the instructions given by High Court, serious action may be taken against them."
' A copy of this order be sent to Secretary, Home Department, Government of Balochistan, and Inspector-General of Police, Balochistan, with the direction that the abovementioned verdict should be followed in letter and spirit and the provisions as contained in sections 61 and 167, Cr.P.C. Should not be misused and it should be assured that successive remands authorizing the physical custody of an accused person is discouraged. The petition is disposed of accordingly.