' Petitioner's two sons are involved in case F.I.R. No, 667 of 1998, dated 21-12-1993 for an offence under section 395, P,P,C., registered at Police Station Yazman and through this Constitutional petition, has challenged the orders, dated 6-2-1999 and 9-2-1999 of Magistrate fiction 30, Yazinan, where under the accused have been sent to further judicial remand on the request of the I.O./S.H2O. Because investigation is still pending before the S.P. C.I.A. During the pendency of this petition, the accused have been sent to further remand till 10-3-1999.
2. It is contended by the learned counsel for the petitioner that as neither complete nor incomplete challan has been submitted, therefore, respondent No,3/ Magistrate Section 30, Yazman, District Bahawalpur, so far, has not taken cognizance of the case under section 190(1) of Cr.P.C., and, consequently, he can neither postpone or adjourn nor pass an order of remand under section 344(1), Cr.P.C. Reliance has been placed on Mehar Khan v. Yaqub Khan and another (1981 SCM R 267), wherein it has been held that "in a case in which neither complete nor an incomplete challan (as envisaged by Rule 25.26 of Police Rules, 1934) has been submitted before a Magistrate, he cannot be assumed to have taken cognizance of the case under clause (b) of section 190(1), Cr.P.C., just as he would not be assumed to have taken cognizance of a case under clause (a) of section 190(1), Cr.P.C., when no private complaint has been lodged before him. The result would be that in such cases, the Magistrate would not have the power to remand the accused to custody under section 344(1) of the Criminal Procedure Code." It has also been held in this judgment that "for the same reason, a Court of Session to which a case has not yet been sent by a Magistrate under section 190(3) and which has, therefore, not yet taken cognizance thereof under section 190(1) cannot obviously commence trial of that case. Evidently, therefore, it cannot postpone or adjourn the trial and, consequently would not be competent to pass an order of remand under section 344(1), Cr.P.C." The learned counsel for the petitioner has also relied upon The State v.
Samiullah Khan and others (PLD 1959 (W.P.) Karachi 157) (Full Bench), Awal Khan v. The Superintendent of Police, Attock and 13 others (1989 PCr. LI 909). (Lahore), wherein it has been held that Magistrate can be said to have taken cognizance of offence only when he decides to proceed against the offender with a view to determine his guilt, mere moving the petition by police before Magistrate for discharge of accused would not amount to taking cognizance of offence by Magistrate. In the last, the learned counsel has referred to Kanwar Khalid Younus v. The State (1993 PCr.LJ 437) (Karachi), wherein it has been held that power under section 344, Cr.P.C., can be exercised by the Trial Court only after the receipt of the challan.
3. The learned Assistant Advocate-General as well as learned counsel for the complainant, while vehemently opposing the petition, have submitted that the Magistrate can pass orders of sending the accused to judicial remand from time to time during the pendency of an inquiry and also during the continuance of investigation by the police. They have also referred to Mehar Khan's case (supra), specially the part of the judgment whereby the word "inquiry" has been discussed by the Hon'ble Supreme Court. They have incorrectly placed their reliance on it because the Apex Court, while discussing the provisions of sections 190(1)(3) and 344(1), has held that a Magistrate is not required to send a case automatically for trial to a Court of Session because a section relating to an offence exclusively triable by a Court of Sessions has been mentioned by the police or the complainant, in the challan or in a private complaint, and he is, in fact, required on having taken cognizance of such a matter to inquire into the case and to apply his mind to whatever material is placed before him, by the police or the complainant, in order to determine, whether the allegations made in the police report, private complaint or information received by him, make out a prima facie case triable exclusively by a Court of Session and such an "inquiry" undertaken by a Magistrate to determine as to whether or not the case is triable exclusively by the Court of Session, would, now, constitute an "inquiry" within the meaning of the word as defined in clause (k) of section 4, Cr.P.C.. And used in section 344(1), Cr.P.C., and the Hon'ble Supreme Court has held that during the pendency of this inquiry, a Magistrate can postpone or adjourn the same under section 344(1), Cr.P.C., and he, therefore, would have the power to remand the accused to judicial custody from time to time till he finally sends a case for trial to the Court of Session. This does not help either the State or the complainant at all because in the instant case, no "inquiry" has been undertaken by the Magistrate. He has merely given a further judicial remand because of the pendency of the investigation by the police. The learned A.A.-G. Has also relied upon Hafeezur Rehman v. The State (PLD 1993 Pesh. 252), which is not applicable to the facts of the present case and is distinguishable. Reliance on Safia Bibi v. The Superintendent of Camp/Central Jail, Lahore and another (1996 PCr.L.I 1455) (Lahore) also does not help the case of the complainant because in this judgment also, a learned Single Judge of this Court has held that a trial Magistrate cannot remand an accused under section 344, Cr.P.C., to judicial custody without first taking cognizance of the case under section 190(1)(b), Cr.P.C.
4. In the present case, neither complete nor incomplete challan has been submitted before the Magistrate, who has granted judicial remand of the accused from time to time merely on the ground that the investigation is pending before the Superintendent of Police, C.I.A. 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 section 344, Cr.P.C., an accused being in custody can 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 adjournment of an inquiry or trial. The word "inquiry" does not mean any investigation being conducted by the police and as held by the Hort:1)1e Supreme Court in Mehar Khan's case (supra), the "inquiry" means an inquiry undertaken by a Magistrate to determine as to whether the case is triable by him or by the Court of Session and during the pendency of this "inquiry", he has been held to be empowered to postpone the trial and to remand the accused to judicial custody from time to time. Ln the instant case, no such inquiry is pending before the Magistrate. The above discussion also shows that under section 344, the trial Court is empowered to remand the accused and postpone or adjourn the trial only after the cognizance has been taken by the Court. In the instant case, neither complete nor incomplete challan has been submitted before the Magistrate, therefore, as held by the Hon'ble Supreme Court in Mehar Khan's case (1981 SCM R 267), he cannot be assumed to have taken cognizance of the case under section 190(1)(b) nor can he be assumed to have taken cognizance under section 190 (1) (a), as no private complaint is lodged before him, therefore, he was not empowered to remand the accused to custody under section 344(1), Cr. P . C .
' In view of the above mentioned, the writ petition is accepted and lie impugned orders passed by the Magistrate for grant of judicial remand and of sending, the accused to jail are declared to be without lawful authority and illegal, and the detention of the accused, Muhammad Anwar son of Allah Yar Bhatti, Ghulam Abbas son of Allahyar Bhaui, Fazal Ahtnad son of Ghukimt Qadir Bhattn Rab Nawaz son of Muhammad Hanif, Tariq Mahmood son of Bashir Ahmad and Alclaar Ali son of Hidayat Ali in New Central Jail, Bahawalpur, and Borstal Jail, Bahawiliani, is declared to be illegal and respondents Nos.1 and 2, Superintendent, New Central Jail, Bahawalpur, and Superintendent, Borstal Jail, Bahawalpur, are directed to set them at liberty at once. However, this order will not operate, if, in the meanwhile, any incomplete or complete challan has been submitted before a trial Court and the said Court, on the receipt of such incomplete or complete challan, has passed an order of grant of judicial .Remand of the abovementioned accused.