' Mst. Allah Rakhi petitioner is the mother of one Munawar Hussain who is the accused of some criminal case and is said to have been arrested on 5-3-2000. She tried to get him released but her efforts remained futile. Expressing that her son has been apprehended twenty days before who has not been produced before any Court of law and projecting her apprehension about the extra- judicial killing of Munawar Hussain at the hands of the police, she filed this petition to get him declared as a detenu and to get him released. The comments were called for from the Senior Superintendent of Police who expressed that Munawar Hussain was involved in a case of dacoity registered at F.I.R. No,124 on 7-3-2000 under section 395/412/109, Pakistan Penal Code at Police Station Jhang Bazar, Faisalabad. The investigation of the case was transferred to the S.H.O. Police Station Garh District Faisalabad who showed the arrest of Munawar Hussain on 11-4-2000 in the aforesaid case and produced him before Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Tandlianwala on 12-4-2000 who granted his physical remand and directed for his production before him on 17-4-2000.
2. On 17-4-2000 I directed the aforesaid Police Officer to produce Munawar Hussain accused before the learned Area Magistrate Police Station Jhang Bazar, Faisalabad to obtain his further physical remand. I brought to his notice the provisions of section 167(2) of the Code of Criminal Procedure.
He produced.The said accused before the learned Area Magistrate Police Station Jhang Bazar, Faisalabad and obtained his physical remand. Afterwards the physical remand was not granted and the order of his remittance to the judicial lock-up was passed.
3. I called Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Cr.P.C. Tandlianwala, District Faisalabad. As a part of his training in polite manner, I advised him and made him to understand the importance of section 167 of the Code of Criminal Procedure. Taking exception to the production of Munawar Hussain accused before Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Cr.P.C. Tandlianwala I have thought it proper to give my views with respect to the dispute in hand.
4. The contention of Mst. Allah Rakhi that Munawar Hussain was taken away from her house on 5-3- 2000 need not be brushed aside. It is a common practice with the police that the accused are taken away and are made to sit in the police station who are insulted, humiliated and tortured. I would express that the practice to make the accused persons sit in the police station without showing their arrest in the case diary and the daily diary of the police station is adopted for the following reasons:--
(i) The effort is made to get more time for the investigation of the case by considering that the period of 15 days as mentioned in section 167(2) of the Code of Criminal Procedure is not sufficient to complete the investigation or the Magistrate may not grant that much time.
(ii) The parlays are made with the complainant party and the accused person(s) and the effort is made to grab the money as illegal gratification from the accused persons and in some cases even from the complainant according to the gravity of the case. In this regard even the accused are provided the chance to slip away and in sensational/gruesome cases are even facilitated to leave the country.
(iii) In some cases the accused are eliminated through extra-judicial killings and members of the family are left in the lurch.
(iv) In case the arrest of the accused is shown in the Daily Diary of the Police Station and/or in the case diary, then the case has to be processed with by placing the same before the Area Magistrate who may grant the physical remand/Judicial remand or discharge the accused at the time of production before him. The F.I.R. Has to be got cancelled through the agency of the competent Court in case of submission of challan. It means that the arrest of the accused is not shown to avoid the maintenance of rule of law as the effort to eclipse the legal indulgence of the competent Court is required, desired and made by the Police Officer(s).
(v) The influential persons like political figures, big Zamindars and relatives of the police and other Executive Officers get apprehended their adversaries, rich or poor, to be kept as detenus for show down and also projection of their influence in the area with the help of S.H.O. And his subordinates so that nobody dares question their supermacy. The detenus are got tortured, insulted and humiliated.
5. It is proper stage to reproduce as under the provisions of section 167 of the Code of Criminal Procedure for the sake of proper appreciation of the dispute:-- "Section 167 of the Code of Criminal Procedure, 1898.
' 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 hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrates.
' Explanation.-- For the purpose of this section, in the cases triable by the Executive Magistrate, the expression 'nearest Magistrate' means the Executive Magistrate and in all other cases the Judicial 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 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 authorising 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.
(5) Notwithstanding anything contained in sections 60 and 61 or herinbefore to the contrary, where the accused forwarded under subsection (2) is a female, the Magistrate shall not except in the cases involving Qatl or dacoity supported by reasons to be recorded in writing, authorise the detention of the accused in police custody, and the Police Officer making an investigation shall interrogate the accused referred to in subsection (1) in the prison in the presence of an officer of jail and a female Police Officer.
(6) The officer incharge of the prison shall make appropriate arrangements for the admission of the Investigating Police Officer into the prison for the purpose of interrogating the accused.
(7) If for the purpose of investigation, it is necessary that the accused referred to in subsection (1) be taken out of the prison, the Officer Incharge of the police station or the Police Officer making investigation, not below the rank of Sub-Inspector, shall apply to the Magistrate in that behalf and the Magistrate may, for the reasons to be recorded in writing, permit taking of accused out of the prison in the company of a female Police Officer appointed by the Magistrate; ' Provided that the accused shall not be kept out of the prison while in the custody of the police between sunset and sunrise."
6. A perusal of subsection (2) of section 167 of the Code of Criminal Procedure has made out that the accused person can either be produced before the learned Area Magistrate or before the Duty Magistrate. Even if Munawar Hussain was arrested on 11-4-2000 by the S.H.O. Within the area of Police Station Garh he was bound to produce him before the learned Area Magistrate and in his absence before the Duty Magistrate to obtain his physical remand. It is simply surprising that Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Cr.P.C. Granted the physical remand of Munawar Hussain accused on 12-4-2000 and still directed the Police Officer to produce before him on 17-4-2000 while he was not competent in the matter. Under section 167(4) of the Code of Criminal Procedure a copy of the order granting the physical remand has to be sent by the Area Magistrate to the Sessions Judge which in the instant matter was not sent. To meet such a situation a copy is to be sent to the Sessions Judge, who has to go through the same and if found proper he can suo motu revise such an order under section 439-A of the Code of Criminal Procedure. It is known to all that the main reason for the separation of Executive and Judiciary was the fact that the remands were not properly granted by the Executive Magistrates and sometimes the bail applications were not attended to seriously. I would express that if the same type of working is adopted, it would lay the foundation of injustice in the subordinate Courts. As such an order for the grant of physical remand must be passed with all the seriousness keeping in view the law of the land.
7. I deem it proper to reproduce as under the Instructions about the grant of remand to police custody incorporated in Chapter XXV of Police Rules, 1934:-- "Investigation Appendix No,25.56(1)
(1) Before making an order of remand to police custody under section 167 of the Code of Criminal Procedure, the Magistrate should satisfy himself that--
(1) there are grounds for believing that the accusation against the person sent up by the police is well-founded.
(2) there are good and sufficient reasons for remanding the accused to police custody instead of detaining him in Magisterial custody.
' In order to form an opinion as to the necessity or otherwise of the remand applied for by the police, the Magistrate should ascertain what previous similar orders (if any) have been made in the case, and the longer the accused person has been in custody the stronger should be the grounds required for a further remand to police custody.
' The accused person must always be produced before the Magistrate when a remand is asked for.
(2) The following principles are laid down for the guidance of Magistrates in the matter of granting remands, and District Magistrates are required to see that they are carefully applied--
(i) Under no circumstances should an accused person be remanded to police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of enquiry. A general statement by the officer applying for the remand that the accused may be able to give further information should not be accepted.
(ii) When an accused person is remanded to police custody the period of the remand should be as short as possible.
(iiii) In all ordinary cases in which time is required by the police to complete the enquiry, the accused person should be detained in Magisterial custody.
(iv) Whether the object of the remand is merely the verification of the prisoner's statement, he should be remanded to Magisterial custody.
(v) A prisoner, who has been produced for the purpose of making a confession and who has declined to do so, or has made a statement which is unsatisfactory from the point of view of the prosecution, should in no circumstances be remanded to police custody.
(3) In any case when an accused person is remanded to police custody, the reasons must be recorded in the order of remand, the Magistrate must at once send a copy of his order, with his reasons for making it, to the Sessions Judge to whom he is immediately subordinate.
' If the limit of 15 days has elapsed, and there is still need for further investigation by the police, the procedure to be adopted is that laid down in section 344, Criminal Procedure Code. The case is brought on to the Magistrate's file, and the accused if detention is necessary, will remain in magisterial custody. The case may be postponed or adjourned from time to time for periods of not more than 15 days each, and as each adjournment expires the accused must be produced before the Magistrate, and the order of adjournment must show good reasons for making the order."
8. At this stage I am tempted to express that section 167(2) of the Code of Criminal Procedure provides that the matter about the grant of physical remand is connected with the territorial jurisdiction of the Presiding Officer. A perusal of the said section has made out that either the physical remand is granted by the Area Magistrate or in his absence by the Duty Magistrate working at the same place of posting. However, the efforts are made to get the physical remand from different places as well. Writ Petition No,2453 of 1999 titled as Shakeel Ahmad v. The State was taken up by me at Multan Bench of this Court wherein it was noticed that about the offence committed at Layyah the physical remand was obtained from the Court of a learned Magistrate 1st Class at Lahore. That was on the ground that the Directorate of Anti-Corruption Establishment was located at Lahore. I did not agree with the working of the Anti-Corruption Establishment, Lahore as well as the learned Magistrate 1st Class, Lahore. According to section 5(2) of the Code of Criminal Procedure all offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating inquiring into, trying or otherwise dealing with such offences. To set the law in motion the territorial jurisdiction has to steel-the eminence. The cases under the General Law or under the Special Law like the Prevention of Corruption Act, 1947 are to be treated alike. The case can be registered at a place where the occurrence has taken place and the physical remand has to be granted by a Magistrate of that place the case under the General Law or the Special Law has been registered. I would advise the learned Magistrates working in the subordinate Courts to show vigilance and the skill of their experience while granting the physical remand of the accused person.
9. Mr. Ejaz Hassan Awan, Civil Judge 1st Class/Magistrate Section 30, Cr.P.C., Tandlianwala assured that he would remain careful in future and I have confidence in him keeping in view the mode of his appearance before me.
10. There is no need to further process with this petition which stands disposed of in the aforesaid terms.