1. This is an application under section 46(1) of the Azad Jammu and Kashmir Constitution Act, 1974. It has been craved through the application that the order of the learned Judge Ehtesab Court No,1 Muzaffarabad, dated September 13, 2001, may be set aside, whereby he had declined to grant the police remand of the accused-non-applicant, and discharged him. The relevant and necessary facts for the disposal of the instant application are, that the non- applicant was arrested by the Ehtesab Bureau under section 5(2), Prevention of Corruption Act, 1947, section 6(5), Public Office Misconduct Ordinance, 1965, section 4, Official Misdemeanour Act, 1948, and section 4, Ehtesab Act, 1997. On September 13, 2001, he was forwarded to the Judge Ehtesab Court for police remand. He refused to grant the remand, while holding that prima facie, there is no such material, on the basis of which, the detention of the non-applicant could be justified. Thus, he rejected the request of remand and discharged the accused. Now this application has been moved against the said order.Of the learned Judge Ehtesab Court. Briefly stated the case of the Ehtesab Bureau was that an application was moved by one Sardar Khurshid Khan against the non-applicant before the Ehtesab Bureau. Upon which, an enquiry was conducted by Director Investigation Abdul Latif Khan. He submitted his report to the Chairman, Ehtesab Bureau on 3rd September 3rd, 2001, that prima facie, the offences under section 5(2), Prevention of Corruption Act, 1947, section 6(5), Public Office Misconduct Ordinance, 1965, section 4, Official Misdemeanour Act, 1948, and section 4, Ehtesab Act, 1997 were found to have been committed by the accused-non-applicant. The Chairman Ehtesab Bureau accorded sanction for the investigation on September 7th, 2001. On September 10th, 2001, the investigation was entrusted to Abdul Latif Khan Director Investigation Assets. According to his investigation, the non-applicant was found in the ownership and possession of immovable property and assets; disproportionate to his known sources of income. He was receiving the rent of immovable property amounting to Rs,13,32,432 per year. Initially, he was a junior clerk in P.W.D. And after retirement from service, he became District President of All Jammu and Kashmir Muslim Conference". He also remained the Chairman of District Council and Chairman District Zakat Committee, Bagh. While misusing these offices and using political influence, he obtained various allotments of lands. He also raised the construction of eight buildings apart from his own residential house. According to the assessment of the P.W.D., the cost of these buildings was Rs,68,69,327 and monthly rent Rs,88,830. He submitted the aforesaid report to the Chairman Ehtesab Bureau on February 12th, 2001, who issued a warrant for arrest of non-applicant. He was arrested and forwarded to the learned Judge Ehtesab Court No,1, Muzaffarabad for police remand. He declined to allow the same and discharged him. This order has been challenged through the instant application. Chaudhry Muhammad Ibrahim Zia, the learned Chief Prosecutor argued that the lower Court has wrongly disallowed the remand. He submitted that the lower Court was not competent and authorized to refuse the same. Moreover, the learned Judge Ehtesab Court had no jurisdiction to discharge the accused. He mainly pegged his arguments on the ground that under section 46(1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, the High Court has the superintendence and control on all the Courts subordinate to it. He submitted that the order of the Ehtesab Court may be set aside under the aforesaid jurisdiction of the High Court.
2. It was next maintained by him that the lower Court has failed to appreciate section 10(e) of the Azad Jammu and Kashmir Ehtesab Bureau Act, 2001 (hereinafter to be referred as Act of 2001).
3. While emphasizing on this point, he submitted that if any person or his dependents or bainamide , owns, possesses or acquires a right or title in any movable or immovable property, disproportionate to his known sources of income, which cannot be reasonably accounted for, shall be liable under the aforesaid provision of law. It was next contended by him that there was sufficient material before the lower Court, that the non-applicant was owning and possessing the . Property, which was beyond the known sources of his own income and he could not reasonably account for it, but the lower Court has not considered the same properly. Therefore, the order of the Court below is not sustainable and it may be set aside. He referred the following authorities in support of his contentions:-
(1) 1999 MLD 1847.
(2) PLJ 1998 Lah. 1683 While controverting the arguments of the learned Chief Prosecutor, the learned counsel for the non-applicant, Mr. Karam Dad Khan, argued that the order of the discharge of the non-applicant could not be interfered with by this Court, under section 46(1) of the Interim Constitution Act. He submitted that these powers pertain to the supervision and control of the subordinate Courts. He further maintained that superintending powers of the High Court under this provision are administrative and these could not be invoked by a party, nor the Court is empowered to provide any relief to any party, under this provision of Act, therefore, this application is not maintainable. It was also next argued by him that the lower Court has applied its mind as required under section 167, Cr.P.C. And after applying its mind, to allegation and the evidence on the record, it reached the conclusion that there was, no sufficient material for the detention of the accused non applicant, rather, this finding on the question of fact has been recorded, after considering all the material placed before the learned Judge Ehtesab Court. This Court cannot set aside the finding of the lower Court recorded on the question of facts, while invoking the special powers under section 46(1) of the Interim Constitution. It was further argued that this Court has no jurisdiction to embark upon the disputed questions of facts in the jurisdiction conferred upon it under the aforesaid provisions of law. It was also submitted by him that it was the paramount duty of the lower Court to consider, whether there was sufficient material for keeping the non-applicant in detention. When it was found that there was no such sufficient material then it was enjoined upon the lower Court to discharge him. The Court below can discharge the accused under sections 167 and 63 of the Cr.P.C.
4. It was next argued by him, that the non-applicant has been wrongly shown the owner of Ghausia Hotel which is the property of Muhammad Nasim Khan. He is also not the owner of the Hotel known as "Rangla-Kabul Hotel". It was owned by one Abdul Latif Khan. It was also submitted by him, that the property owned by non-applicant, much prior to 1985, had been considered upon which, the provisions of the Ehtesab Act were not applicable, at all. He also referred the following authorities in support of his contention:--
(1) 1995 PCr.LJ 97;
(2) 1994 PCr.LJ 1806; and
(3) 2001 PCr.LJ 160. I have heard the arguments of the learned counsel for the parties, perused the record appended with the application and have also given my utmost muse to the respective contentions of the reamed counsel for the parties. Section 46 (1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974, contained as under:- - "The High Court shall superintend and control all other Courts that are subordinate to it."
5. The basic object of the aforesaid provision was to keep the administration of justice transparent and only for this very purpose, these powers have been conferred upon the High Court. There are no limitations or restrictions on the powers of superintendence and control of the High Court. The High Court is the custodian of the justice, therefore, these powers have been conferred upon it and its main object was to arm it with a weapon for keeping the hawkish eyes on the Courts below.
6. Section 46 (1) mostly pertains to administrative aspect than the judicial aspect. The High Court exercises the supervisory jurisdiction of two types:--
(a) judicial jurisdiction which is conferred upon it under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, under Cr.P.C., C.P.C. And other relevant enactments; and b) the second type of supervisory jurisdiction is administrative. It is to be noted that the aforesaid powers under the Constitution mostly relate to administrative aspect than the judicial aspect. This view finds A support from PLD 1989 Karachi 404 (436) which reads as under:-- "It may be observed that the High Court exercises supervisory jurisdiction of two types i,e, judicial which is conferred on the High Court by virtue of Article 199 of the Constitution, provisions in the Civil Procedure Code, Criminal Procedure Code and the other relevant enactments either as an Appellate Court or Revisional Court and the second type of supervisory jurisdiction is administrative. In my view Article 203 relates more to administrative aspect than the judicial aspect as has been held in the above Karachi case of the Pull Bench. The members of the Full Bench comprised of Qadeeruddin Ahmed, C.J., Abdul KadirShaikh and Muhammad Heleem, as their Lordships then were. Reference may also be made to the case of KarimBakhsh v. Mst. Mubarik Jan reported in PLD 1970 Pesh. 169, in which a Division Bench of erstwhile High Court of East Pakistan comprising of Qadeeruddin Ahmed, C.J., and NasimHasan Shah, J. As his Lordship then was, held while construing above Article 102 of 1962 Constitution, that the power is meant to enable the High Court to discharge its duties as a superior Court towards fair and proper administration of justice, and that the High Court has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. Reference was made to the Privy Council's observation that the power of the superintendence includes the authority to direct inquiry with a view to take disciplinary action for cases of flagrant maladministration of justice. The relevant portion of the above observation in the above case reads as follows: As observed in Emperor v. Tarapore AIR 1940 Sindh 230 at p.244 'superintendence' includes the power to guide, advise and encourage Judges of the subordinate Courts. According to the Allahabad High Court 'superintendence' includes the power to direct subordinate Courts and Tribunals to carry out its orders vide Sam LalMahadeo Prasad v. KedarNath AIR 1935 All.
519. According to their Lordships of the Privy Council this includes the authority to direct inquiry with a view to take disciplinary action for cases of flagrant maladministration of justice. See Rajkumar v.
7. Rarnsundar AIR 1932 PC 69. The observations made in certain judicial pronouncements, while discussing the scope of section 107 of the Government of India Act, 1915, and Article 227 of the Indian Constitution which provisions are in many ways to the same effect as the provisions ofArticle 102 of our Constitution of 1962, indicate that the purpose of these provisions is not to convert the High Courts into Courts of Appeal or of revision---See Jalaluddin v. Jalauddin 1962 SC (C.A. 622/61), cited in Basu's Commentary on the Constitution of India, 4th Edn Vol. IV, p.6. We respectfully agree with this view and our reason for holding this view is that this supervision and control is for making and keeping the administration of justice pure and not to help any particular party. This duty can be performed irrespective of whether anybody has been harmed or not and irrespective of whether anybody will be benefited by it or not.' Reference may also be made to the Ballentine's Law Dictionary, Third. Edition and Black's Law Dictionary, Fifth Edition for the meaning of the words 'control' and 'supervise'. BALLENTINE'S LAW DICTIONARY: Control,: Verb. To check, restrain, govern, have under command and authority, Wolffe v, Loeb 98 Ala 426, 432 Noun: A position of authority in direction and management.
8. Supervise'. To exercise oversight.To keep under inspection. See 'superintendence'.
9. Superintendence': Oversight, inspection, supervision. Moffitt v. Asheville, 103 NC 237, 9 SE 695. Care and oversight for the purpose of direction, and with authority to direct.The act of superintending.
10. The word seems properly to imply the exercise of some authority or control over the person or thing subjected to oversight.' Dantzler v. De Bardeleben Coal & Iron Co. 101 Ala 309, 14 So 10. BLACK'S LAW DICTIONARY: Control': v. To exercise restraining or directing influence over: Toregulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern.
11. Control': n. Power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee. The 'control' involved in determining whether 'principal and agent relationship' or 'master and servant relationship' is involved must be accompanied by power or right to order or direct Mid-Continent Petroleum Corporation v. Vicars, 221 Ind. 387, 47 N.E. 2 d 972.."
12. Supervise'To have general oversight over, to superintend or to inspect. See Supervisor.
13. Supervisor': Pssurveyor or overseer, Also in some states, the chief officer of a town; one of a board of country officers. In a broad sense, one having authority over others, to superintend and direct. The term 'supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or responsibility to direct them., or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise, of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. National Labour Relations Act, section 2(11)." I am inclined to hold that the supervision and control over the subordinate judiciary vested in the High Court under Article 203 of the Constitution."
14. In the aforesaid report, it has been clearly laid down that Article 203 regarding the administrative and supervisory jurisdiction of the High Court pertains to administrative aspect than the judicial aspect. It is also to be noted that section 46(1) of the Interim Constitution Act, Article 203 of the Constitution of Pakistan 1973 and Article 102 of the Constitution of Pakistan, 1962, are analogous.
15. The supervisory powers of the High Court under section 46 (1) are unlimited but at the same time, these have not been conferred upon it for converting it into the Court of appeal or revision. These powers are to be exercised in very rare and exceptional cases. The superintending power of the High Court under the aforesaid provisions is administrative as well as judicial in nature. The object of these powers was not to provide relief to any party. These powers have nothing to do with the grievance of a party. Under these powers the High Court has to keep the eyes on all the Courts below, so that they may not fail to perform their own duties apart from the problems and interest of the parties. Such duties are to attend the Court regularly, punctually, to hear and decide the cases which falls within the jurisdiction and not to hear the cases which are beyond its jurisdiction, to obey the legitimate directions 'of the superior Authorities, to know law and conduct themselves like judicial officers. This view finds support from PLD 1987 Karachi 652.
16. It is pertinent to note that the words "supervise" and "control" in the aforesaid provision of law, also confer powers upon the High Court to exercise the judicial control over the decisions of the subordinate Courts, with regard to correction of jurisdiction or non-compliance of any statutory provisions of law, but it does not allow interference on merits. The High Court should not convert itself into the Court of appeal or revision, white exercising the powers under section 46(1) of the Interim Constitution.Act, 1974. The High Court while exercising the powers of supervision, can direct the subordinate Courts to act in certain way justified by law. It includes the powers to take disciplinary actions. A party cannot invoke section 46(1) for obtaining a certain relief. Neither it is meant for such purpose, nor the Court is required by it to provide relief to any party. Section 44 is provided in the Interim Constitution for obtaining the relief and the powers of appeal and revision have been provided under the Cr.P.C. And C.P.C. This view finds support from PLD 1970 Peshawar 169
(174) which reads as under:-- "A comparison of the above provisions will show that Article 102 is not meant to be invoked by a party, nor is the Court required by it to provide relief to anybody. As against this, Article 98 of the Constitution is meant to provide relief to aggrieved parties. Section 151. C.P.C. Is intended to prevent abuse of the process of Court as well as to empower the Court to make such orders as may be necessary for the ends of justice. Article 102 of the Constitution on the contrary merely empowers the High Courts to supervise and control all Courts subordinate to it. The power is meant to enable the High Court to discharge its duties as a superior Court towards fair and proper administration of justice. The High Court has the authority to check and prevent dereliction of duty and to stop as well as correct violations of law. As observed in Emperor v. Tara pore (AIR 1940 Sindh 230) 'superintendence' includes the power to guide, advise and encourage Judges of the subordinate Courts. According to the Allahabad High Court 'superintendence' includes the power to direct subordinate Courts and Tribunals to carry out its orders vide SantLalMahadeo Prasad v. KedarNath (AIR 1935 All. 519). According to their Lordships of the Privy Council this includes the authority to direct inquiry with a view to take disciplinary action for cases of flagrant maladministration of justice. See Rajkumar v. Ramsundar (AIR 1932 PC 69). The observations made in certain judicial pronouncements,, while discussing the scope of section 107 of the Government of India Act, 1915, and Article 227 of the Indian Constitution which provisions are in many ways to the same effect as the provisions of Article 102 of our Constitution of 1962, indicate that the purpose of these provisions is not to convert the High Courts into Courts of appeal or of revision."
17. It would also not be out of place to mention here that section 46 (1)empowers the High Court to supervise and control the Courts subordinate to it in order to guide, check and encourage them.
18. The orders and judgments of the lower Courts cannot be interfered with respect to the merits of the cases. Powers of appeal or revision are creation of law. Where such powers have not been created by law, then these should not be exercised in order to provide the relief to the party by way of invoking the powers of superintendence and control, provided in section 46 (1) of the Interim Constitution Act, 1974.. This view finds support from PLD 1972 Karachi 165 (172) which reads as under:-- "A glance at it would show that the Article mentions no relief which may be given to a party under it. It does not even refer to any proceedings, order, judgment, relief or remedy. They are all outside the ambit of the provision except of course to the extent that the conduct of the Courts themselves may be involved in them. It merely confers on the High Court the power of supervision and control over its subordinate Courts. This power has nothing to do with grievances of parties or with doing justice to them. The High Court is under this Article concerned with its lower Courts only and has to keep an eye on them so that they may not fail to do their own duties apart from the problems and interests of the parties. Such duties are to attend the Courts regularly and punctually; to hear and decide those cases only which fall within their jurisdiction and not to hear and decide those which may be outside their jurisdiction; to obey legitimate directions of their superior Authorities, to know the law and to conduct themselves like judicial officers. Their judicial orders and judgments are subject to scrutiny, on appeal or revision, in accordance with the provisions that confer those jurisdictions on Courts of various grades. Every appeal and every revision does not lie to the High Court, nor is the power to hear appeals and revisions inherent in Courts. This power is a creation of law; therefore, they do not exist unless conferred by law. Thus, where these powers have not been conferred by law they cannot be exercised and should not be exercised in order to give relief to an aggrieved party by way of supervision and control of subordinate Courts."
19. Now, the question emerges whether the relief claimed by the applicant (Ehtesab Bureau) in the present application, can be allowed under section 46 (1) of the Interim Constitution Act? This provision did not provide any relief which could be allowed under it to a party. Under this provision, the powers of control and supervision were given to the High Court for keeping the administration of justice clean and pure. It is not meant for the help of any party. This view finds support from PLD 1987 Karachi 652 (660) which reads as under:--
(i) That Article 203 of the Constitution does not provide any relief; which could be granted under it.
(ii) That under this Article, a High Court is given powers of supervision and control for making and keeping the administration of justice clean and pure.
(iii) That it is not meant to 'help any particular party. The duty under it can be performed irrespective of whether anybody will be harmed or not and whether anybody will be benefited by it or not.
(iv) A relief of transfer of case from one Family Court to another Court on the application of a party cannot be granted under it for the reasons of convenience of the parties or anyone of them.
20. It is to be noted that the High Court under section 46 (1) shall not convert itself into the Court of appeal or revision. This view finds support from PLD 1971 Lahore 878 which reads as under:-- "The power of judicial control under Article 102 is to be used more sparingly and in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors. Put differently; under Article 102 of the Constitution, this Court is not to convert itself into a Court of appeal and revision and the power of interference is limited to seeing that the subordinate Court functions within the limits of its authority." It also further finds support from PLD 1976 Karachi page 68.
21. It would not be out of place to mention here that while granting the remand, the judicial officer has to weigh the evidence, to decide whether the accused should be detained or not. He should not grant the remand in mechanical manner. It is imperative for him to apply his mind. There should be reasonable cause for the remand. If the Magistrate finds that there are no reasonable grounds then he should not grant the remand. This view finds support from PLD 1979 Lahore 587 and PLD 1969 Lahore 1020. The Magistrate has to scrutinize the act of police and ensure that there is a substance in it or not. He has to consider the evidence collected by the police and ensure that it justifies the detention of the accused, because the right of liberty is most precious right of a citizen.
22. The detention of a person without any legal justification is engender of injustice. It shall create a sense of injustice and insecurity in the society and the mischief which could not be imagined. It is pertinent to note that if the police fails to satisfy the Magistrate about the accusation attributed to the accused, then he has no jurisdiction to grant the remand and he may discharge the accused.
23. This view finds support from AIR 1964 Monipur 39 (45) which reads as under:-- "There is an impression among the Police in this Union Territory that the remand of an arrested person should be done by the Magistrate is a matter of course. The sooner this impression is got rid of, the better it will be. I wish to impress on all the Magistrates as well as on the Police that it is the duty of the Police to comply with the provisions of section 167(1), Cr.P.C. And that the. Magistrate should insist on such strict compliance and if the Police do not a remand was necessary, for the purpose of investigation, the Magistrate may release the accused." Thin view further finds support from AIR 1963 Monipur 12 which reads as tinder:- "When dealing with section 167, Cr. P.C. The Magistrate cannot look to the convenience of the Police to submit remand reports. The Court is dealing with the liberty of a citizen which is guaranteed under the Constitution and it has to act according to the strict letter of the Law. If the Police do not transmit to the Court a copy of the entries in the diary relating to 'the case, to satisfy the Magistrate that investigation could not be completed within 24 hours and that there are grounds for believing that the accusation or information is well-founded, the Magistrate has no jurisdiction to direct the detention of the arrested person. It is a travesty of justice to order detention in anticipation of a remand report. It is seen in this case, that on many occasions no Police Officer was present and no remand report received and still the Magistrate went on ordering further remands of the arrested persons.
(14) I am not able to understand what the District Magistrate meant by link Magistrates in his Order No,5(J)-DM/61 dated Imphal, the 29th July, 1961. There is no provision for appointment of link Magistrates under the Criminal Procedure Code. It can at best only mean that one Magistrate has been given concurrent jurisdiction alongwith another Magistrate who may not be readily available.
24. Even the so-called link Magistrate has to act under section 167, Cr.P.C. And abide by the strict provisions of the said section.
(15) There is no doubt in my mind that the detention of the petitioner and the other two arrested persons in this case was totally against law and they have to be directed to be released from jail. I have already ordered their release pending final orders in his application and the said release order is hereby made absolute."
25. It is to be noted that under section 167(3) of the Cr.P.C., the Magistrate has to record the reasons while granting the remand. It is the fundamental duty of the. Magistrate to furnish reasons for allowing the same. The order of remand must contain the reasons. The basic object of section 167(3) is that the Magistrate should not record the order of remand in mechanical manner without examining the record and reasons. While authorizing the detention, it is essential for him to study the material placed on file, because the law is jealous regarding the liberty of the citizens and never allows the detention until and unless there is legal sanction for it. This view finds support from AIR 1931 Lahore 476.
26. As stated above, Magistrate, while granting the Police remand, has to record the reasons, scrutinize and examine the record. If after considering the record and material produced by the police and merits of the case, he was not satisfied and did not grant the remand, then his order shall not be interfered by this Court, while invoking the powers under section 46(1) of the Azad Jammu and Kashmir Interim Constitution Act, 1974. As stated above, that this provision empowers the Court to supervise and control the subordinate Courts in order to guide, check and encourage them. The order and judgments of the lower Courts could not be interfered, with respect to the merits of the cases under this provision of law. In the instant case, the orders of the lower Court can only be interfered, after considering the merits of the material placed before the learned Judge Ehtesab Court, which is not the function of this Court, while considering the application under section 46(1) of the Interim Constitution Act, 1974. Such powers can only be exercised by this Court in an appeal or revision. While considering an application under section 46(1) Ws Court Shall not exercise the powers of the appellate or revisional jurisdiction and it should not convert itself into a Court of appeal or revision.
27. Before parting with the case, I would like to deal with the case-law referred by the learned counsel for the parties. The case-law referred by the learned counsel for the applicant; 1999 MLD 1847 = PLJ 1998 Lah. 1683, and case-law referred by the learned counsel for the non-applicant 1985 PCr.LJ p.97, 1994 PCr.LJ p.1806 and 2001 PCr.LJ p.160 are concerned. These pertain to the writ jurisdiction. There is no resemblance among the writ jurisdiction and the jurisdiction of superintendence and control.
28. There is lot of difference between both the jurisdictions, as discussed in the earlier part of the judgment, thus the case-law referred by the learned counsel for the parties have no relevancy with the present case. The epitome of the above discussion is, that this application is not maintainable. It has no force. It is hereby dismissed.
29. Order accounced.