' This is a petition filed by Syed Azmat Ali Shah son of Syed Niamat Shah and Aurangzeb son of Ghulam Rasool residents of Ghazi Hamlet and Pipliala respectively for their release on bail under section 497, Cr.P.C. Read with section 344, Cr.P.C.
2. The background of the case, in the light of F.I.R. No,153, dated 30-8-1997 of Police Station Ghazi, District Haripur, is to the effect that Pir {{PAGE BLUR}} Sabir Shah, M.P.A. In his Vehicle No, BLN 1848 alongwith his companions on 30-8-1997 was returning from a marriage ceremony in village Pipliala to Ghazi, When at 21-10 hours he reached near the gate of Intermediate College located on Pipliala Road, the vehicle was fired at from behind. Some inmates including Pir Sabir Shah are stated to have been injured and a case under section 324/34, P.P.C. Was registered against unknown assailants.
3. Numerous persons like Malik Muhammad Younis, Malik Abdur Razzaq and the present petitioners were arrested. First two were released on bail by this Court on 15-1-1998 while the application of Syed Azmat Shah and AurangZebc' the petitioners was rejected. The present petitioners filed; another Bail, Application. No,2 of 1998 before this Court on 25-3-1998, claiming that their. , detention was unlawful within the contemplatiOn, of:section 344, Cr.P.C., Such application was also dismissed by this Court on' 1 -44998 holding that as the challan stood submitted before the trial Court, the matter:be' agitated before such Court. The learned1SpeCial Judge/Sessions Judge, Haripur vide his order dated 22-4-1998 has rejected the application on the main. ,ground that the detention even if illegal for some time had stood regularized, when the accused were produced before the Court of competent jurisdiction at a subsequent stage and when such Court passed orders under section 344, Cr.P.C. The petitioners have again approached this Court.
4. A reference to the record would indicate that the F.1.11, liaving,been registered On 30-8-1997, be present petitioners .Azmat Shah and Antangzeb were arrested on 12-9-1997 'and, 8,4L1,997,,respecti*ely..Incotriplete challan was prepared otf8-10-1997 while cornplete dial= on,31- 10-1997. On 20-1-1998 the petitioners *ere sliiftedlo Central Jaile..D.I.Khan,Trom 12-9-1997 and 0-9- 1997 up' to 20-1-1998 the- kidicial custody of the accused ,was. Obtained from the judicial/Raga Magistrate and the last remand was-obtained 15-1-.19981:Puring the stay of the petitioners3in Central 'Prison;i1),I.Ithan, -.Three remands were obtained on 28.1-1998, 104-1998 and 24-2-199g:from the:Judicial MagistrateAt Haripur when such accused'. Were produced before such Magistrate ,k ;in the above background, the questions to be determined in the present petition are as to whether the petitioners had been producealhefore the Court of competent jurisdiction, as to whether the remands were granted hy the Cgurt of competent jurisdiction, as to which is the. Court of competent junstliettgtz,,and as tO,Y,/hether the prolonged unlawful detention of the petitioners stood regularized tit; a subsequent, stage when they: were produced before the Special .Figige/Sessiqns Judge, Haripur who thereafter granted Jemand to the petitioners.
6 MuMnag AIi Tahirkheli, learned counsel' for the petitioners placed rellineetiiiini'lvfdIattim' ad Ali v.
The State 1985 Per.1.601.1'fLattottytiniere accused in murder case was kept in detention without orderklibiniaGCtitirtJef competent jurisdiction,. Flkwaktteld.That the Bete nAn w?Sedilsgailanti,,e accused was 'directed to op, reiRsed on bail. The Court, had 6/en gone ICI the extent of '01TOG/1.1& MaNW {{PAGE BLUR}} observing that prima facie it was a case of wrongful confinement punishable under section 343, P.P.C. Next he sought support from another case Allah Ditta v. The State 1991 PCr.LJ 408 where, at the time of remand the accused was not produced before the Court and was directed to be produced on the next day simply on a "Robkar". The Lahore High Court, once again relying upon the previous authority of Muhammad Ali declared the detention of the accused as without lawful authority and the accused was granted bail.
7. - Similar question was taken up and dealt with accordingly in Ram Narayan Singh v. The State AIR 1953 SC 277. This view was followed by Karachi High Court in Darshan Singh v. The State PLD 1957 Kar. 212 which was upheld by a Full Bench of the same Court in State v. Samiullah Khan PLD 1959 Kar.
157. All the aforesaid cases were once again taken guidance from by Karachi High Court in Kanwar Khalid Younus v. The State 1993 PCr.LJ 437. It was observed that powers under section 344, Cr.P.C.
Can only be exercised by a trial Court. It presupposes the placing of material before the Court so that the remand could be granted or refused in the light of such material or in case of refusal, the Court may commence the enquiry.
8. All the above questions tend to create confusion only when the investigation is not completed by the Investigating Agency and challan is not submitted, within the mandatory period of fifteen days.
The law contemplates a perfectly smooth sailing and the confusion arises only when the legal formalities are ignored and the efficiency of completing the enquiry within 15 days and the submission of challan accordingly, is not shown. Obviously, when an accused person is arrested, he is bound to be produced before the Magistrate within a period of 24 hours with reference to section 61 of the Cr.P.C. Beyond such period the police cannot detain a person on its own authority and hence has to seek permission from a Magistrate under section 167, Cr.P.C. Such remand under section 167, Cr.P.C. Cannot be obtained for a period of more than 15 days. If after 15 days the investigation is not complete, the material is bound to be produced before the trial Court under section 344, Cr.P.C. To enable the Court . To commence the enquiry. At this stage the Court has the discretion to allow remand on any reasonable or sufficient grounds. This principle of giving adjournments is required to be followed so strictly and so sparingly that even the sine die adjournment was considered illegal in Tariq Javed Butt v. The State 1997 M LD 2101. It carries logic because once a case is adjourned sine die, the accused is never produced before the Court thereafter and no remand is obtained to justify his detention. It must be appreciated that grant of adjournment and remand is never to be taken in routine and it must be granted or refused by positive application of mind to the facts and circumstances of each case. It is so because it involves the liberty of a citizen whose each and every day of detention must be accounted for.
9. The case of Mehr Khan v. Yaqoob Khan 1981 SCM R 267 is another important authority on the subject. It was in fact relied upon by both the parties.
' It dilated upon the provisions of section 190(1) and section 190(3) of the Cr.P.C. As it stood after the deletion of commitment proceedings. A difficulty was felt to visualise as to how a Magistrate could postpone, commence or adjourn an enquiry after the doing away of commitment proceedings.
The Hon'ble Supreme Court held that such difficulty is eliminated when it is comprehended that the Magistrate taking cognizance of an offence is still required to apply his mind to ascertain if case in question is one he is required to send for trial to Court of Session or if he could try it himself.
Application of mind in such way was interpreted to be an "enquiry" with reference to section 344, Cr.P.C.
10. The difficulty does not arise when a case is triable by the same Magistrate before whom an accused is required to be produced within 24 hours. In that case all the orders required to be passed either under section 61 or under section 167 or under section 344, Cr.P.C., are passed by one and the same Court. It also created no confusion when the committal proceedings were intact and the Court authorised to take cognizance of the offence used to be the same which could hold a regular enquiry as well. It became a little bit confusing now when the Court authorised to take cognizance under section 190(1), Cr.P.C. Had no authority to hold trial and to send the case up to the Court of Session which has the authority to hold trial. Now a Magistrate is not required to hold an enquiry but that does not mean that he is to act, in the words of the Supreme Court, merely as a Post Office and automatically send the case for trial to a Court of Session simply because a.
Section relating to an offence exclusively triable by a Court of Session has been mentioned by the police in the challan or any private complaint, as the case may be. He is required to apply his mind to the genuineness of charge and such application of mind is an enquiry now with reference to section 344, Cr.P.C.
11. The Hon'ble Supreme Court further went on to observe that the difficulty has arisen in the interpretation of section 344(1), Cr.P.C. Because it has not been suitably amended by the Law Reforms Ordinance and its wording remained the same as it were before the omission of Chapter XVIII. A careful perusal of the section would indicate that the power of remand under subsection (1) of section 344, Cr.P.C. Has been conferred on Magistrate as well as the presiding Judges of other Courts like Courts of Sessions. A Court of Session also cannot pass an order under section 344, Cr.P.C. Unless a case has been sent to it by a Magistrate under section 190(3), Cr.P.C. The ruling before us has given a guideline as to what are the Courts which are competent to take cognizance and at what occasion. We understand and hold that in cases triable by Magistrate, the Court competent to take cognizance is that of a Magistrate who can pass all the orders under sections 61, 167 and 344, Cr.P.C. In cases in which the cognizance can be taken by the Magistrates of the 1st Class but such Magistrates are not competent to hold trial, they can pass orders under sections 167 and 344, Cr.P.C. Up to the time the challan is not sent up to the higher Court or the Court of Sessions which is competent to hold the trial. Once the case is sent up for trial to the Court of Session, all the orders passed thereafter under section 344, Cr.P.C. Shall be passed by the trial Court.
12. Mr. Saeed Akhtar Khan learned counsel for the complainant though had no cavil with the above proposition of law yet had reservations about the production of the accused before the Court at the time of the passing of order under section 344, Cr.P.C. And also that any irregularity done by the police or by the Magistrate in granting remand to the accused at one stage or stages can be regularised ultimately if the accused is produced before the Court of competent jurisdiction. He placed reliance on a Single Bench case of this Court in Hafizur Rehman v. The State PLD 1993 Pesh.
252. It was held therein that the production of accused before the Magistrate for obtaining remand was not mandatory. The Court relied upon a case of Raj Narain v. Superintendent Jail, New Delhi reported in AIR 1971 SC 178, which was further followed completely in M. Sambasiva Rao v. Union of India AIR 1973 SC 850; the basic authority being AIR 1971 SC 178.
13. The close study of the case of Raj Narain AIR 1971 SC 178 would reveal that in that case the accused had stood transferred to the custody of the Supreme Court but when the Magistrate was resorted to for the purposes of obtaining the remand of the accused, the Magistrate attempted to call the accused to be produced before him , practically from the Supreme Court. In such circumstances the Supreme Court of India observed that the object of production of the prisoner before the Magistrate was more than answered by his production before the Supreme Court because the prisoner had the protection of his interest transferred from the Magistrate to the Supreme Court. It was further observed that sufficient compliance with the requirement of law would have been if information to accused, to Jail Authorities and to the Supreme Court had been furnished by the Magistrate with reference to section 344, Cr.P.C. We believe that had the custody of the prisoner been not transferred to the Supreme Court in connection with some hearing, the Supreme Court of India would not have had made such observations. The very findings of the Court would indicate that there was some object of production of the prisoner before the Magistrate but such object was considered to have been more than answered by his production before the Supreme Court. Meaning thereby that there is some object in producing the accused before the Magistrate at the time of remand. From such observations it is further indicated that in production before the Magistrate, the accused has some protection of his interest involved, which, in the circumstances was considered to have been transferred to the Supreme Court which held that the object of such production stood more than answered when the accused had already been transferred to the Supreme Court and was before it. We believe and hold that had the accused been not physically transferred before the Supreme Court, it would not have objected to the production of the accused before the Magistrate at the time when the latter granted the remand.
13. In the state of affairs that prevails in our country, we observe quite frequently that laws are ignored and flouted in general and all the more flouted in certain specific cases. The liberties of citizens are now given secondary importance and at times the least importance. In such circumstances, it is necessary that the accused be physically produced before the Magistrate so that he is in a position every time to appreciate the plight of a detenu. It becomes all the more necessary when the submission of challan does not take place within the time specified by the general as well as special laws. The grant of remand in routine and on "Robkars" without the accused being physically produced before the Magistrate would amount to violating the very object behind the enactment of section 344, Cr.P.C. It is held that the physical production of accused before the Magistrate at the time of remand is mandatory unless, prevented by any act of God beyond the reach and power of any one concerned.
14. The next case relied upon by the learned counsel for the complainant was that of Ghulam Abbas v. The State 1993 PCr.LJ 43, another Single Bench Judgment from Lahore High Court. This was in support of the argument that the previous irregularities regarding remand or remands could be regularised by subsequent order passed in accordance with law. In this case the accused was not produced before any Court for almost a period of one year with effect from 29-7-1990 to 30-6-1991.
His lawful remand subsequently in the year 1992 was considered to be legal and further considered to have had regularised the previous irregularities.
15. We would not subscribe to the aforesaid view taken by the learned Single Bench of Lahore High Court because the liberties of citizens require always to be protected and any irregularity committed regarding the liberty of a citizen should not be taken as a routine matter to be regularised under section 537, Cr.P.C. We observe that the Hon'ble Judge was also shocked to notice the contention of the learned counsel that the prisoner had been in judicial lock-up for the above given period without any remand order having been passed by any competent Court. The District Magistrate was directed to hold an enquiry. We believe that when such a serious notice was taken by the Court of such a serious irregularity, it ought not to have been regularised at the same time.
16. To say that one lawful remand at a much belated stage or at a subsequent stage operates to regularise all previous illegality, would amount to putting judicial implimator on a statutory violation committed by a Police Officer or by a Magistrate qua sections 167 and 344, Cr.P.C.
Regularisation by Court of such detention would tantamount to compromising the liberties of citizens at the altar of expediency. It would tantamount to giving premium to the submission of the challan without any quantum of delay enjoyed by the Law Enforcement Agencies and would ultimately be a total negation of statutes contained in sections 167 and 344, Cr.P.C.
17. 1996 PCr.LJ 1455 (Lahore) relied upon by the learned counsel for the complainant was a case where it was held that at the time of arguments the detention of the accused stood regularised and hence an order to be passed under section 491, Cr.P.C., was declined. It is to be noticed that the accused was not released because there was no bail application before the Court but in the light of our observations if the illegality was drastic, the Hon'ble Judge could have converted the petition under section 491, Cr.P.C. Into a bail application.
18. PLD 1997 Pesh. 173 Mst. Rambail Bibi v. Mir Alam was a case where the question involved was not with reference to section 344, Cr.P.C. But was with reference to late submission of challan under section 173, Cr.P.C. Learned counsel for the complainant developed the argument that in the above case, it was directed that for late submission of challan the S.H.O. Concerned be taken to task. The learned counsel wanted us to make a similar order against those who had committed illegalities and irregularities in the present case because, according to him the benefit of someone's illegality should not be given to the accused. We totally disagree with such analogical deductions because taking action against a faultering official might be right at its place but it does not at all compensate the accused who had been kept in detention unlawfully. The benefit of such unlawful detentions must always go to the accused or to the detenu who otherwise has a right to be dealt with in accordance with law.
19. Learned counsel for the petitioners made another very important submission which is taken up last though it was alleged in the foremost. The learned counsel claimed that the instant one was a case registered under the provisions of Suppression of Terrorist Activities (Special Courts) Act, 1975 and that under sections 4 and 5 of the Act, the one and the only Court which was competent to take cognizance was the Special Court under the Act and that no Magistrate of the 1st class had any jurisdiction either to act under section 167, Cr.P.C. Or under section 344, Cr.P.C. And that no Magistrate could exercise any powers under section 190(1), Cr.P.C. Or under section 190(3), Cr.P.C.
20. It is to be appreciated with great concern that the instant case is one registered under a special law which gives exclusive jurisdiction to a special Court for the trial of scheduled offences. The jurisdiction of normal Courts of law is totally ousted by section 4 of the Act, regardless of what is contained in the Code of Criminal Procedure. We further advert to section 5 of the Act that defines the taking of cognizance. It provides that the officer-in-charge of a police station shall complete the investigation and forward directly to the Special Courts a report under section 173 of Cr.P.C.
Within 14 days in respect of a case triable by such Court. It is to be specifically noted that the provisions of submission of challan before a Magistrate of the 1st class or before Ilaqa Magistrate is completely ousted, meaning thereby that for the purposes of scheduled offences, the Court of a Special Judge constituted under the Act, is a Court of original jurisdiction as a Magistrate would have, been for a case registered under normal law and triable by such Magistrate.
21. In view of the provisions of sections 4 and 5 of the Suppression of Terrorist Activities Act, we hold that the Court of a Special Judge under the Act has got the exclusive jurisdiction to deal with the matters involving scheduled offences and is a Court of original jurisdiction. All the remands etc., therefore, must be obtained from the. Special CQUrt and from no other Court at all. An example of other Special Courts can be given like that of a Special Judge Customs, Taxation and Anti- Smuggling which is Court of original jurisdiction and before whom the first information report is directly placed and before whom the complete challan is directly submitted and before whom an accused is produced within 24 hours of his arrest, directly.
22. In the light of what we have observed above, it is held that in the instant case the Court of competent jurisdiction is the Court of original jurisdiction which is exclusively the Special Judge under Suppression of Terrorist Activities Act. We further hold that from the date of arrest on 12-9- 1997 and on 8-9-1997 the petitioners were never produced before the Special Judge untill 24-2- 1998. Their detention was, therefore, without lawful authority. We further hold that from 28-1-1998 to 24-2-1998 during their stay at D.I.Khan Jail, they were never produced before the Court which was violative of the very object of section 344, Cr.P.C. And lastly, that no illegality in this behalf could be legalised or regularised by any subsequent order passed at a belated stage even by a Court of competent jurisdiction.
23. The detention of the petitioners being unlawful, in the circumstances, both are directed to be released on bail provided a bond in a sum of Rs,80,000 with two local, reliable and resourceful sureties is furnished to the satisfaction of the trial Court/Special Court, Haripur.