' This order would dispose of petition filed by Saif-ur-Rehman alias Chilli, for the grant of bail in a case registered against him at Police Station, Factory Area, Lyallpur, on 15-2-1975, under sections 148, 302 and 307/34, P. P. C.
2. The case was registered on the statement of Javaid Ahmad. According to the complainant, Saif- ur-Rehman alias Chilli petitioner and five other accused constituted an unlawful assembly and in the prosecution of the common object of the said unlawful assembly attempted on his life and also committed the murder of Munawwar Ahmed deceased. The petitioner who was armed with a Bugdar had inflicted injuries to Munawwar Ahmed deceased and Javaid Ahmed complainant. After investigation, challan was submitted in the Court of Committing Magistrate, on 7-7-1975. The accused was supplied with the copies of the statements of the prosecution witnesses recorded under section 161, Cr. P. C. And the spot inspection note. Evidence was summoned for 23-7-1975. The learned Magistrate recorded the statements of thirteen witnesses. The last witness was examined on 9-12-1975. The case was adjourned to 29-12-1975 and an intervening date was fixed for the appearance of the accused only. In the meantime the learned Magistrate was transferred. The file was put up before another Magistrate on 17-1-1976 and be adjourned the case to 24-1-1976. Due to the enforcement of item 70(iii) of the Law Reforms Ordinance, 1972, the learned Magistrate sent up the case to the Court of Sessions and fixed the date as 3-2-1976. It has been reported by the learned Additional Sessions Judge, Lyallpur, that the challan was received in the Court of Sessions Judge, on 3-2-1976, whereafter it was adjourned sine die. It has been further reported by the learned Additional Session& Judge that the case was transferred to his Court by the learned Sessions Judge on 14-6-1977, and the position remains the same.
3. The learned counsel for the petitioner contended that the petitioner was not being remanded to custody under any order and the provisions of section 344, Cr. P. C. Were not being complied with and for that reason, the detention of the petitioner was illegal. The learned counsel for the State conceded this proposition.
4. The Law Reforms Ordinance, 1972 (Ordinance No, XII of 1972) was made by the President on 13th April 1972 and published in the Gazette of Pakistan, Extraordinary, dated 14th April 1972. It is provided in section 1(2) of the said Ordinance that: "it shall come into force at once, except the provisions of the Schedule relating to amendments in the Code of Criminal procedure, 1898 (Act V of 1898), which shall come into force in any Province with effect from such date, not later than the 1st day of January 1973, as the Provincial Government thereof may, by notification in the official Gazette, specify in this behalf."
' Reforms (Second Amendment) Ordinance, 1972 (Ordinance LX11I of 1972) was made by the President on the 27th December 1972 and published in the Gazette of Pakistan, Extraordinary, Part I on 28th December, 1972. This Ordinance had come into force at once. By virtue of section 2 of the said Ordinance, the words "not later than the 1st day of January, 1973" from the Law Reforms Ordinance, 1972 were omitted, and words "different date& may be so specified for different areas in a Province so that the amendments in the Code are brought in force throughout the Province progressively', were added. The President was pleased to make and promulgate the Law Reforms (Amendment) Ordinance 1975 (Ordinance XXIV of 1975) on December 21, 1975. Subsection (3) of section 190 of the Code of Criminal Procedure was substituted as under :- "(3) A Magistrate taking congnizance under subsection (1) of an offence triable exclusively by a Court of Session shall, without recording any evidence, send the case to the Court of Session for trial."
' In exercise of the powers conferred by subsection (2) of section 1 of the Law Reforms Ordinance, 1972, the Governor of Punjab was pleased to appoint 26th day of December, 1975 to be the day on which certain provisions of the schedule including item 70 (iii) of the said Ordinance relating to the amendments in the Code of Criminal Procedure, 1898 shall, come into force throughout the Punjab Province. Notification No, Judl. 1-3(2)175 was published in Punjab Gazette, Extraordinary, December 26, 1975, in this regard. In view of the said amendment, the file of this case was sent up without recording further evidence to the Court of Sessions for trial. Although a specific date had been given by the learned Magistrate, the accused were not produced in the Court of Session nor any order passed on the file of the case and thus, the case stood adjourned sine die. It is provided in section 344, Cr. P. C. That : "if, from the absence of a witness or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of or adjourn an inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it deems fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody."
' Under section 344, Cr. P. C., the Court may postpone the commencement of or adjourn any inquiry or trial from time to time on such terms as it thinks fit and for such time as it considers reasonable.
The Court has to pass an order in writing stating the reasons therefor if it remands the accused to custody. There could be hardly any dispute that under the provisions of section 344, Cr, P. C., cases cannot be adjourned sine die. Same view had been expressed by their Lordships in cases titled Kehr Singh v. Mst. Kirpal Kaur (1), Emperor v. Mohammad Ebrahim and others (2), Tarachand Gehimal v. Emperor (3) and Agha Nazir Ali Sultan Muhammad v. Emperor (4).
5. Where the Magistrate has to remand an accused to custody under section 344, Cr. P. C., he cannot remand an accused to custody for a term exceeding fifteen days at a time but no such limitation has been placed when a remand order is to be passed by a Court other than the Magistrate. When the accused are produced before the Court of Session and the learned Sessions Judge considers it necessary or advisable to postpone the commencement or .Adjourn a trial, he may, if he thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same for such time as he may consider reasonable and may by a warrant remand the accused, if in custody. Where a case is sent to the Sessions Judge under the amended section 190(3), Cr. P. C., he is bound to comply with the provision of section 344, Cr. P. C. And he cannot adjourn the case sine die. It is for him to find out as to when the case could be fixed up for trial. It is not necessary for him to remand the accused in custody for a period of less than fifteen days. The Magistrate is, however, not competent to remand the accused A person to custody under section 344, Cr. P. C. For a term exceeding fifteen days at a time. Since the present case stands adjourned sine die and the petitioner has not been remanded to custody by an order of the Sessions Judge, I hold that the detention of the petitioner is illegal. He is admitted to bail in the sum of Rs, 0,000 with two sureties in the like amount to the satisfactions of A. C,, Lyallpur. {{FOOT NOTE}}
(1) AIR 1942 Lah. 256 (2) AIR 1942 Cal. 219
(3) AIR 1932 Sind 214 (4) AIR 1941 Sind 186 {{FOOT NOTE}}