' ABDUL HAMEED DOGAR, J.---In this Revision Application the applicant has called in question the legality, propriety and correctness of order dated nil of Mr. Hakim Ali Abbasi, learned Special Judge, Anti-Terrorism Court, Karachi Division, whereby he granted remand on the application of DSP Amanat Javaid of CIA, Karachi, in police custody from jail custody (in Crime No,357/1996 of Police Station Ferozabad, Karachi-East) for 7 days from the date of taking into custody.
2. The facts leading to the filing of the above application are that the above-referred case with regard to the murder of Justice (Retd.) Nizam Ahmed and his son Nadeem Ahmed was registered on 10-6-1996 at the abovementioned police station. Police had arrested one Muhammad Bilal Shaikh in the said case and had submitted Charge-Sheet No,124 of 1997 on 14-9-1997 before the Court of learned Special Judge (Suppression of Terrorist Activities), Karachi-Central, wherein one Ahmed Shah was shown as absconder.
3. On 2-2-1999 an interim amended charge-sheet was submitted in the above case before the abovementioned STA Court, wherein Muhammad Babar Sindhu and Akhtar Jawed Pirzada were shown in custody and applicant, Shafique Baba and two unidentified accused persons were shown as absconders. The applicant was allowed pre-arrest bail in the said case on 12-3-1999. Criminal Miscellaneous Application No,184 of 1999 with regard to cancellation of bail before arrest, granted to the applicant, was filed before this Court which was dismissed as not pressed on the statement of learned Assistant Advocate-General on 18-5-1999. Thereafter, the applicant had been appearing before the said Court and proceedings were being conducted in Central Prison, Karachi, where the last date of hearing was 15-5-1999 and the matter was adjourned to 29-5-1999. It was on 15-5- 1999, SSP submitted an application of Investigating Officer DSP Amanat Javid before the STA Court that as per opinion of the PDSP Legal, Karachi, section 7 of the Anti-Terrorism Act, 1997 (hereinafter to be referred to as the "Act") has been added. Hearing of that application was adjourned to 29-5- 1999. It was further revealed that on 10-5-1999 DSP Amanat Javaid of CIA, Karcahi moved an application in the Court of Mr. Hakim Ali Abbasi, Special Judge for Anti-Terrorism Court, Karachi Division with regard to grant of remand to applicant in police custody from jail custody for 14 days in Crime No,357 of 1996 of Police Station Ferozabad, Karachi-East, who allowed the same for 7 days, but with effect from the date of taking his custody. Subsequently on 16-5-1999, Sunday, the Central Prison, Karachi was opened and custody of the applicant was handed over to the said DSP, CIA and the applicant was detained at Civil Lines Police Station, Karachi. A habeas corpus under section 491, Cr.P.C. As Criminal Miscellaneous No,221 of 1999 was filed on 17-5-1999 and in the parawise comments SSP and DSP, CIA admitted to have obtained the remand in police custody of the applicant. The case of the applicant further is that he was maltreated and tortured with a view to extract a confessional statement of their own choice and such was the reason for obtaining his police custody. According to the applicant, he was not shifted to Aga Khan Hospital in spite of orders passed by this Court in Criminal Miscellaneous No, 221 of 1999. It was on 19-5-1999, he was shifted to the hospital in injured condition while he was bleeding profusely from the mouth.
4. We have heard Mr. Farooq H. Naek, the learned counsel for the applicant and Mr. Muhammad Iqbal Raad, the learned Advocate-General, Sindh, for the State at length and have gone through the record and proceedings of the application including the order.
5. The learned counsel for the applicant mainly contended that the impugned order is bad in law and on facts and has been passed by the learned Special Judge while exercising the jurisdiction illegally and with material irregularity. According to him passing of an order on a simple application of DSP, CIA without having any case or challan before him the learned Court has seriously erred in doing so and the entire exercise was without lawful authority. Learned counsel has referred to section 13(3) of the Act, whereby an administrative Judge is to be appointed by Government in consultation with the Chief Justice of the High Court where more Anti-Terrorism Courts than one have been established in any area. Accordingly as per notification dated 4-5- 1999, issued by Government of Pakistan, Ministry of Law, Justice and Human Rights, Judge, Mr. Rahmat Hussain Jafri was appointed as administrative Judge and Mr. Hakim Ali Abbasi was designated as Judge, Special Court Anti-Terrorism No, VII, Karachi. According to this provision of law all cases triable under this Act pertaining to the said area shall be filed before the administrative Judge and such Judge may either by the cases himself or assign any case or cases for trial to any other Anti-Terrorism Court. The learned counsel further contended that from the said provision of law it transpires that Mr. Hakim Ali Abbasi has acted without lawful authority and the orders were coram non judice. He further submitted that according to subsection (1) of section 19 of the Act, investigation in respect of case triable by Anti-Terrorism Court shall be completed within 7 days and according to subsection (4) while granting orders for detention of an accused in police custody under section 167, Cr.P.C., the Court shall record reasons for such authorisation or refusal and according to subsection (5), it is only on the application from a Public Prosecutor or a Law Officer of Government showing good grounds to Anti-Terrorism Court may make an order for placing him in police custody for purpose of further investigation in the case. He further contended that none of the above-referred provisions of law have been complied with while granting remand, as such it is illegal on the face of it. He contended that admittedly the STA Court, where the present case is challaned, was not approached by the concerned police for obtaining police remand.
According to rules 119 and 922 f Prison Rules, Jail cannot be opened on holidays and Sunday being the public holiday, the custody was illegal and without lawful authority. He lastly submitted that the incident in this particular case has taken place on 10-6-1996, whereas the Act as such cannot be applied with retrospective effect and the Anti-Terrorism Court has no jurisdiction in the matter at all. In support of his contentions he relied upon the case-law reported in (1) 1993 PCr.LJ 221, (2) 1998 PCr.LJ 2588 and (3) NLR 1999 Appeal Cases (sic).
6. On the other hand, the learned Advocate-General, Sindh, vehemently opposed the contentions of the applicant's counsel and contended that since DSP, CIA, Karachi has applied for grant of remand in police custody under section 167, Cr.P.C. Read with section 7 of the Act, as such Anti- Terrorism Court of Mr. Hakim Ali Abbasi was justified in allowing the remand. On subsection (5) of section 19 of the Act, he argued that the DSP of Police is a Public Prosecutor as defined by rule 27:4 of Police Rules.According to him section 32 of the Act has overriding effect.
7. On 25-5-1999, when this matter camp up before us, the learned Advocate-General at the very outset submitted an application under section 561-A, Cr.P.C. Wherein he has stated that respondent cannot expect a fair and impartial judgment from this Bench, therefore, a reference may be made to the Hon'ble Chief Justice for withdrawal of present matter from the file of this Bench to another Bench. The contents of the application are reproduced hereunder in extenso: "APPLICATION UNDER SECTION 561-A, CR.P.C.
' It is respectfully submitted on behalf of the official respondents that they cannot expect a fair and impartial judgment from this Hon-ble Bench of the Hon'ble High Court of Sindh.
' It is, therefore, prayed that this Hon'ble Bench may be pleased to send this Criminal Revision to the Hon'ble Chief Justice to place the same before any other Bench of this Hon'ble Court.
' It is prayed in the interest of justice.
' Karachi. (Sd.)
' Dated 25-5-1999. Advocate-General, Sindh."
8. Upon receiving the application from the learned Advocate-General it was pointed out to him that no observations were made from the Bench which show or suggest that justice will not be done. He was also apprised of the fact that even any .Observations made by the Bench or their very nature is always tentative and Court is always open to be persuaded to a different view. Upon this the learned Advocate-General stated that this application may be kept on record which was accordingly brought on record.
9. We regret to say that irrespective of the question of impropriety of the learned State Counsel's attitude, we find it impossible to accede to the request/choice and demand of the learned Advocate-General in view of the authoritative dicta of the Hon'ble Supreme Court in the case of Hamid Sarfaraz v. Federation of Pakistan, reported in PLD 1979 SC 991. The relevant dicta is reproduced hereunder: "It is the undisputed privilege and duty of the Chief Justice, whether of a High Court or of the Supreme Court, to constitute Benches for the hearing and disposal of cases coming before his Court, and no litigant or lawyer can be permitted to ask that his case be heard by a Bench of his choice."
10. We are also fortified by an unreported Division Bench decision of this Court in Criminal Bail Applications Nos. 212 to 215 of 1998 in the case of Jahanzeb and others v. The State.
11. This matter was heard by us on 22nd, 24th and 25th of May, 1999 and it is at the verge of completion, therefore, in the light of the Hon'ble Supreme Court's dicta we reject the request made by the learned State Counsel and proceed with the matter. The learned Advocate-General proceeded with the matter and continued his arguments.
12. The learned Advocate-General further went on to argue that by not recording the reasons as required under subsection (3) of section 167, Cr.P.C. And subsection (4) of section 19 of the Act are mere technicalities and failing to enumerate reasons for the same would not make the impugned order illegal. He lastly contended that judicial remand of the applicant has further been obtained from 22-5-1999 to 30-5-1999 by the Administrative Judge Mr. Rahmat Hussain Jafri of Anti- Terrorism Court No,1 and interim challan has been submitted before the said Court on 24-5-1999.
He also argued that the previous investigation of the case conducted by DSP Nazeer Ahmed Tanoli was found defective and, therefore, subsequent investigation was carried on through D.S.P. Amanat Javaid. In support of his submissions he relied upon (1) PLD 1987 SC 13, (2) 1997 SCMR 2008, (3) PLD 1994 SC 281 and (4) 1994 SCMR 2442. In rebuttal to the arguments of the learned Advocate- General, the learned counsel for the applicant referred to (1) PLD 1950 Lahore 111(b) and (2) PLD 1971 SC 252 at page 306(aa).
3. At the very outset it will be appropriate to reproduce the impugned order, which reads as follows:-- "Order ' The application made by the D.S.P., C.I.A. For grant of remand from judicial custody to police custody is allowed and the remand for the date of taking his custody.
(Sd.)
10-5-1999."
14. On the face of it, it is clear that the order was passed on 10-5-1999, much before the transfer of custody of the applicant from Central Prison, Karachi to CIA Police, Karachi. It was not denied on behalf of the respondent that the physical custody of the applicant was handed over to DSP Amanat Javaid on Sunday, the 16th May, 1999.
15. It will be pertinent to note that the Anti-Terrorism Courts for different areas in Karachi Division were established on 6-5-1999 vide Notification No,F.13(a)/97-A-III(B) and Mr. Rahmat Hussain Jafri was appointed as Administrative Judge of such ATC Court, whereas Mr. Hakim Ali Abbasi was appointed as Presiding Judge of ATC Court No,7 and started functioning with effect from 8-5-1999.
It is further evident from the above order that it does not contain any reason. It is further pertinent from the order that no reason whatsoever has been assigned therein as required under subsection
(3) of section 167, Cr.P.C. And subsection (4) of section 19 of the Act. Subsection (4) of section 167, Cr.P.C. Further requires that a copy of the remand order shall be forwarded with reasons to the Sessions Judge. Here in this case a mandatory provision of law does not appear to have been complied with either by sending a copy to the Sessions Judge concerned or to this Court, being the Court of appeal. It is further obvious from the order itself that the applicant was not produced before the learned Judge at time of passing the impugned remand order. The impugned order further reveals that CIA Police was authorised to take the custody of the applicant from Central Jail, Karachi on any occasion favourable to them, which again does not appear to be in consonance with the law. From the line of argument adopted by the learned Advocate-General, it appeared that only those days will be counted in which the applicant was subjected to interrogation.
According to him, 3 days, during which the applicant was not interrogated, would not be included in remand period of 7 days.
16. There is no denial of the fact that the respondent or the police obtaining remand of the applicant was not aware about the pendency of the case before the Court of Special Judge (Suppression of Terrorist Activities), Karachi-Central. Knowing it fully well the police instead of obtaining remand from the said STA Court, approached the learned Special Judge, Anti-Terrorism Court, Karachi for the said purpose, which to say the least was in violation of a decision of a Division Bench of this Court reported as 1993 PCr.LJ 221. The applicant was on bail granted to him by the learned Special Judge (Suppression of Terrorists Activities), Karachi-Central and application for cancellation of his bail was withdrawn by State and the same had been dismissed accordingly by this Court. It was appropriate for the learned Special Judge (Anti-Terrorism) Court, Karachi to have directed the police to approach the learned trial Court in view of afore-cited judgment.
17. We are also fortified by the decision in case of Ghulam Sarwar and another v. The State, reported in 1984 PCr.LJ 2588. The relevant observations are reproduced hereunder for the sake of convenience: "6. Before parting with judgment, I would like to add that it has come to my notices that particularly in cases exclusively triable by the Court of Session Magistrates are allowing remand and adjournments in violation of the mandatory provisions of section 167, Cr.P.C. And section 344, Cr.P.C.
Although section 167(4), Cr.P.C. Requires that the Magistrates shall forward a copy of the order of remand to the Sessions Judge, yet they do not care to do the needful. The Magistrates authorise the detention of the accused in police and judicial custody as a matter of course in token of co- operation with the police. They do not realize that they are conducting judicial proceedings and that grant of remand is also a part of judicial proceedings. The High Court Rules contain the necessary instructions. The superior Courts have also laid down principles in this behalf for the guidance of subordinate Courts. It is really unfortunate that the Magistrates are playing with the liberty of human beings in routine. They think as if they are accountable to none. For their guidance, I propose following principles, which are in accordance with law, High Court Rules and Order and case-law laid down by superior Courts:--
(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 persecution/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.
(Underlined is ours).
(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 2 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 the orders passed by them and in case they violate the instructions given by this Court, serious action may be taken against them. Let a copy of this order be sent to District Magistrates/Superintendents of Police and Sessions Judges of all the Districts in Punjab. They would ensure that the instructions given by me in the matter of remand/adjournment are fully complied with by the Magistrates. The Sessions Judges concerned would bring non-compliance of these instructions by the Magistrates to the notice of the Registrar/Additional Registrar of the Lahore High Court/Benches."
18. The Public Prosecutor has been defined in section 18 of the Act, according to which provision the Government shall appoint prosecutor for each Terrorist Court and may also appoint one or more additional public prosecutors. Special public persecutor for any case or class of cases may also be appointed within the meaning of section 492, Cr.P.C. Thus, from the plain reading of the above provisions of law, it is crystal clear that only public prosecutor is competent to apply for the remand and DSP is not competent to do so. The contention raised by the learned Advocate- General that a Superintendent of Police is a public prosecutor in view of rule 27.4 of Police Rules is without substance and untenable in law. It is well-settled that rules are subordinate/subject to the Act. If any provision or rule is inconsistent with the provision of the Act then the provision of the Act is to be followed and rule is to be ignored. Apart from that under the special statute only public prosecutor under the Act is competent to obtain or apply for remand. The definition of public prosecutor has not been given in the Act. It is well-settled that when on a particular legal point/aspect a special statute is silent, then the provisions of general law would prevail. In that regard section 32 of the Act,. The Criminal Procedure Code has been made applicable. Reliance may further be made to a reported Division Bench decision in the case of Rai Singh and others v.
Allandin and others, reported in PLD 1950 Lahore 111, wherein it has been laid down as follows: "It is an admitted canon of the construction of statutes that when a special procedure has been laid down and a special provision has been made on a particular subject then to that subject a general provision of the statute cannot be applied."
19. Even the application for grant of remand in police custody of applicant was not moved by a public prosecutor or a law officer as envisaged in subsection (5) of section 19 of the Act, it was preferred by DSP, CIA, which was not the requirement of law.
20. Morevoer, the application for grant of remand has not been preferred before the Administrative Judge, i,e, ATC No, 1 who was only competent to do so in view of subsection (3) of section 13 of the Act. According to the above provisions of law, the learned Judge of ATC No,7 granting remand had no jurisdiction and was not competent to do so and as such has travelled beyond his jurisdiction.
21. The authorities cited by the learned Advocate-General on behalf of the State distinguishable as the facts and circumstances of the cases cited by him are quite different from the facts and circumstances of the present case.
22. The upshot of the above discussion is that the impugned remand order passed by Mr. Hakim Ali Abbasi, learned Special Judge, Anti-Terrorism Court, Karachi Division, is illegal, without jurisdiction and passed without lawful authority, which is hereby set aside.
23. Resultantly the Revision Application stands allowed.
Revision .