This judgment will also dispose of the connected Writ Petition No.5348/96, Muhammad Riaz v.
Inspector-General of Police, Punjab, Lahore as both the petitions arise out of the same occurrence.
2. The brief facts are that a case under section 302/34, P.P.C. Was registered against respondents Nos.4 and 5 namely Muhammad Riaz alias Riaz Ahmad and Dawood son of Inayat Ullah and 2 others for the murder of Muhammad Tariq, on 26-8-1995. The case was registered at the report of Rehmat A.I petitioner i.e. The father of the deceased. It was contended in the report that respondents Nos.4 and 5 came on a motor-cycle armed with .222 rifle alongwith 2 unknown persons and started firing at the deceased resulting into his death. Both the respondents forenamed were arrested but out of them respondent No.5 was got discharged by the police, whereas respondent No.4 was discharged by respondent No. l vide his order dated 2-10-1995.
3. It is contended by the petitioner that the order of discharge dated 2-10-1995 made by respondent No.1 is without jurisdiction, arbitrary and capricious. In this regard, it is alleged that respondent No.4 being Head Constable was attached with the Court of respondent No. l and the latter exerted undue influence upon the police to support the evidence against the aforesaid culprit. Likewise it was contended that respondent No. l failed to consider the contents of the F.I.R., statements of the eye-witnesses and the motive alleged for the commission of the crime while making the discharge order. In this connection, it was urged that the contents of the F.I.R. Were supported by the complainant Rehmat A.I i.e. The present petitioner being the complainant in the case. The respondents Nos.4 and 5 were also linked with the murder of the deceased by eye- witnesses namely Abdul Sattar and Abdul Qayyum whose names have been mentioned in the F.I.R.
In the presence of the aforesaid evidence, the learned Magistrate/respondent No.1 fell in error to hold that the evidence collected by the police showed that Riaz Ahmad respondent No.4 was innocent and that there was no evidence to link him with the crime.
4. Lastly it was contended that the case under section 302/34, P.P.C. Was not triable by respondent No.1 and therefore, he could not make the discharge order under section 63 read with section 169, Cr.P.C.
5. The comments from respondents Nos.1 to 3 were called. The respondent No.1 namely Nazir Hussain Warya, Magistrate First Class, Gujranwala submitted in his comments that he had made the discharge order while acting under section 63 read with section 167, Cr.P.C. He further admitted that respondent No.4 was a police employee and had been working with him as Traffic Head Constable. He however, denied the allegation that he had been supporting the aforesaid respondent. On the contrary, he alleged that discharge order was made after going through the material collected by the police, which did not link the aforesaid respondent with the offence and as such instead of granting judicial remand, the respondent was discharged.
6. The respondent No.2, SHO, PS, Baghbanpura and respondent No.3/lnspector-General of Police, Punjab, Lahore contended that Riaz Ahmad respondent No.4 and Dawood respondent No.5 were named in the F.I.R. And were arrested in the case. Out of them respondent No.5 Dawood was got discharged and a petition for judicial remand of respondent No.4 was made to respondent No. 1, but the latter declined the same and made the impugned order. The Inspector-General Police, Punjab also submitted that the investigation was transferred to the Crime Branch, Punjab and as such a part of the prayer of the petitioner stood complied with.
7. In the connected Writ Petition No. 5348/96 it was prayed by Muhammad Riaz petitioner (respondent No.4 in the main petition) that the investigation be transferred from the Crime Branch, which was allegedly acting under the influence of Ch. Muhammad Ashfaq, M.N.A., Toba Tek Singh.
8. The learned counsel for the petitioner Rahmat A.I contended that the discharge order dated 2- 10-1995 was illegal, mala fide and arbitrary. The learned Magistrate allegedly fell in error to appreciate that the contents of the F.I.R. Were supported by Rahmat A.I complainant and two eye- witnesses named above. He did not say a word about those witnesses in the impugned order and made a sweeping observation that the police had failed to collect evidence to link the respondent No.4 with occurrence.
9. Secondly it was contended that since the petitioner had made several applications against the conduct of the Magistrate with the allegation that he had been helping respondent No.4 who was attached with the Court, therefore, the learned Magistrate should have refrained to hear the matter.
10. Lastly it was contended that provisions contained in section 63 or section 169, Cr.P.C. Could not be invoked as a prayer for judicial remand was made after the expiry of 14 days and that the matter should have been adjourned in view of the provisions contained in section 344, Cr.P.C. As to be handled by the Court of competent Jurisdiction, which in this case was the Court of Session. The Magistrate 1st Class i.e. Respondent No. l was not competent to decide about the innocence or guilt of respondent No.4 while disposing of the application for judicial remand.
11. The learned counsel for respondent No.4, however, submitted that the Magistrate was competent to make the order of discharge if he was of the view that there was no sufficient cause for granting the judicial remand. In this connection it was alleged that a person shall not be considered as an accused while the investigation was in progress and that the discharge order was not intended to smother the police investigation which could go on in accordance with law until the police submitted its final report in the case. The effect of the discharge order was not to close the investigation, but to release the accused from custody. Hence it being an executive order could not lightly be interfered. Reliance was placed on 1985 PCr.LJ 244 (Lahore). Likewise it was contended that mere levelling of an accusation against a person in the F.I.R. Would not make such person as an accused within the meaning of Criminal Procedure Code until and unless some evidence implicating such person in the commission of the offence was available. Reliance was placed on 1983 PCr.LJ 298 (AJ&K). It was, therefore, urged that the impugned order was good in the eye of law and it was still open to the Investigating Agency to submit the challan against the accused if they had been able to collect incriminating evidence against respondent No.4, who could be arrested after obtaining order from the Illaqa Magistrate. The writ petition was allegedly meritless.
12. I have considered the foregoing submissions made at the Bar. There is no cudgel with the propositions laid down in the above authorities that mere levelling of an accusation in the F.I.R.
Would not make a person accused nor the discharge order would clog the investigation in any manner. However, each case has to be decided on its own merits. It is to be carefully seen whether the F.I.R. Contains a bald accusation of an offence or the same is substantiated through an evidence. The answer to this question can only be given after the application of judicial mind to the proposition before the Court.
13. Now it is to be seen as to how a person is to be dealt with after his arrest by the police without warrant. In this connection a reference to section 61, Cr.P.C. Will obviate the situation. It says that no Police Officer shall detain in custody a person arrested without warrant for a longer period then under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of 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. This rule has been made a fundamental right of a citizen under Article 10(2) of the Constitution of Islamic Republic of Pakistan, 1973.
Hence it' is necessary that an arrested person has to be produced before a Magistrate within 24 hours excluding the time to reach the Court of such Magistrate. The Magistrate before whom an arrested person is produced, may proceed under section 63 read with section 167, Cr.P.C. To make a special order to release or discharge such person if the police has not been able to show sufficient cause for remanding the accused to police custody. These sections also imply that the investigation is to be completed within 24 hours and if it is not possible then the Magistrate may grant remand of an arrested person subject to a term not exceeding 15 days in the whole. It is thus obvious that under the law a Magistrate is competent to either remand an accused to the police custody subject to a term not exceeding 15 days or he may make a special order to discharge such person. However, in each situation, the Magistrate has to apply his mind consciously after examining the diaries prepared by the police under section 172, Cr.P.C. The next stage comes when the report under section 173, Cr.P.C. Is prepared by the police and sent to the Court of competent jurisdiction for taking cognizance by such Court. The provisions contained in the proviso to subsection (1) of section 173, Cr.P.C. Lay down that, where investigation is not completed within a period of fourteen days from the date of recording of the F.I.R, under section 154, the officer incharge 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. It is, therefore, clear that S.H.O. Of the police station concerned is bound either to submit the final report or an interim report to the Magistrate who shall then take cognizance of the case himself or may send it up for trial to the Court concerned as required by section 190, Cr.P.C. It is, then that the provisions contained in section 344, Cr.P.C. Will be invoked to adjourn the case or to make remand order as envisaged therein. It is to be seen as to how a Magistrate has to proceed if the matter is brought before him for remand when the investigation has not been completed within 24 hours of the arrest of the accused or the maximum period of 15 days prescribed for police remand has expired but no final or interim report has been submitted by the police to the Court concerned under section 173, Cr.P.C. As pointed out above. The cognizance of the case will only be possible after the submission of the report under section 173, Cr.P.C. Thus it is not intended by law that the accused shall remain in police custody after the expiry of 15 days even if the investigation has not been completed. In such a situation the only remedy would be that instead of sending the accused to police custody he should be remanded to judicial custody or if there is no sufficient material for either custody, he may be discharged. Here too the Magistrate has to apply his mind critically to make either of the orders aforementioned.
14. Keeping in view the above touchstone for making a remand order or to pass a discharge order, the fact of the present case are to be analysed. In the instant case the police had exhausted the maximum period of physical remand and had requested to the Magistrate i.e. Respondent No. l for judicial remand of respondent No.4. The Magistrate came to the conclusion that the police has not been able to collect sufficient evidence which showed that respondent No.4 was innocent and as such the discharge order was made. The learned Magistrate i.e. Respondent No.1 however, did not say a word about the allegations in the F.I.R., which were substantiated by the First Informant i.e. The petitioner and were supported by two eye-witnesses named above. All three of them had claimed to have seen the occurrence in their statements recorded by the police under section 161, Cr.P.C. The Magistrate however, was influenced by the affidavits of 152 persons, who had allegedly appeared before the police to say that the respondent No.4 namely Riaz Ahmad was innocent. It is strange that the learned Magistrate did not say a word about the ocular evidence but wrongly concluded that the respondent aforenamed was innocent on the basis of some affidavits produced in defence during the investigation. He even did not wait for the finalization of the investigation and jumped to the conclusion that the accused was innocent. He had not to give his finding regarding the guilt or innocence particularly when respondent No.4 was involved in a murder case under section 302/34, P.P.C. Which was exclusively triable by the Court of Session. The Magistrate i.e. Respondent No.1, therefore, proceeded in illegal manner to determine innocence or guilt of the accused without taking into account the statement of the First Informant supported by two eye-witnesses. It was, therefore, a misleading conclusion tainted with prejudice to refuse judicial remand of respondent No.4 and to make the impugned discharge order. The learned Magistrate i.e. Respondent No. l not only acted with material irregularity but also failed to apply his mind properly even to the facts of the case produced before him through diaries recorded under section 172, Cr.P.C. The impugned order of the learned Magistrate i.e. Respondent No. l being patently illegal is liable to be set aside. This writ petition is accordingly accepted and the order in question is set aside. There is an allegation against the Magistrate that he pressurized the police and as such interfered with the investigation as respondent No.4 was admittedly working in his Court as Traffic Head Constable. This aspect of the matter calls for administrative/disciplinary inquiry which may be initiated by the competent authority of respondent No. 1.
15. The petition to the extent of respondent No.5 is infructuous as he was not a party to the impugned discharge order. The writ petition to his extent is, therefore, dismissed.
16. Now I come to the connected Writ Petition No.5348/96 which is instituted by respondent No.4 for the transfer of investigation from the Crimes Branch on the ground that the same is tainted by mala fide as being influenced by an MNA from Toba Tek Singh. It is merely an allegation without any substance. Even otherwise the investigation stands concluded and as such the writ petition for its transfer would be infructious. It is true that normally the Courts should not interfere with the course of investigation but in exceptional case, where the Investigating Agency proceeds with patent mala fide or in flagrant disobedience of law, the High Court may exercise its corrective jurisdiction available to it under its Constitutional jurisdiction. However, no such exceptional ground has been shown in the instant case so as to attract extraordinary corrective jurisdiction of this Court. The writ petition under discussion is accordingly dismissed.