1994 P Cr (PLP)

NASIR ASLAM ZAHID, J: -- The relevant facts and the point involved in this Constitutional petition are given in the order, dated 28-4-1992 admitting this petition to regular hearing and the said order is reproduced as follows:-- "Learned counsel relies on section 86-A, Cr.P.C. for the proposition that on the:basis of a warrant issued outside the District for removal of the petitioner's two sons from Karachi to Tribal Area, an enquiry has to be conducted by the Illaqa Magistrate in Karachi where arrest had taken place and only on fulfilment of the requirements of section 86-A, Cr.P.C. the custody of the two sons of the petitioner can be handed over to the police for being taken to the Tribal Area, but in the instant case, while the enquiry is still to be conducted under section 86-A, Cr.P.C. and the two sons of the petitioner are being confined at present in Central Prison, Karachi, orders have been passed by the Government of Sindh for taking the two sons of the petitioner to the Tribal Area. According to the learned counsel, this action on the part of the Sindh Government, violates the provisions of section 86-A, Cr.P.C. Admit. Notice. Mr. K.M. Nadeem, learned A.A: G. waives notice. Regular hearing on 30-4-1992."

2. Section 86-A of the Criminal Procedure Code may also be reproduced here:-- "86-A. Where a person arrested under section 85 is to be removed in custody to any place in the Tribal Areas, he shall be produced before a Magistrate within the local limits of whose jurisdiction the arrest was made and such Magistrate in directing the removal shall hear the case in the same manner and have the same jurisdiction and powers, as nearly as may be including the power to order the production of evidence, as if the person arrested was charged with an offence committed within the jurisdiction of such Magistrate, and such Magistrate shall direct the removal of the arrested person in custody if he is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested committed the offence mentioned in the warrant."

3. We have heard Mr. Abdul Majeed Ashrafi, learned counsel for the petitioner and Mr. K.M. Nadeem, AA.-G. Mr. Sarfraz Ahmed, AA.-G. has also been heard. .

4. It is submitted by the learned counsel for the petitioner that the provisions of section 86-A, Cr.P.C. are mandatory. The learned AA.-G. states that on behalf of the Government the position is conceded that as the sons of the petitioner are required to be taken into custody to the Tribal Area, an inquiry is to be conducted by the Illaqa Magistrate in Karachi in whose jurisdiction the detenus had been taken into custody as contemplated by section 86-A, Cr.P.C. The learned AA: G. also referred to a decision of a learned Single Judge of the Lahore High Court in the case of Khalid Pervez v. Federation of Pakistan P L D 1987 Lah. 323 which supports the contention of the learned counsel for the petitioner.

5. This petition is accordingly granted and it is directed that Wasim Ahmed and Jamal Ahmed sons of petitioner Dawood Ahmed will not be handed over to the police which has come from Peshawar to take the two detenus to the Tribal Area without the Illaqa Magistrate in Karachi holding the inquiry keeping in view the requirements contained in section 86-A, Cr.P.C. There shall be no order as to costs. . N.H.Q./D-123/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.