1997 PLP 1325 (MLD)

Writ Petition No.7048‑Miscellaneous of 1996, decided on 17th October, 1996 ‑‑‑‑S.167(2)‑‑‑Penal Code (XLV of 1860), S.324/337‑F(iv)/337‑L(ii)/34‑‑ Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Refusal of physical remand by Magistrate‑‑‑Police had acted with lethargy in producing the accused before the Court after the expiry of previous remand and could not even effect the recovery of rifle from him during that period‑‑‑Magistrate, in circumstances, was justified to decline further physical remand of the accused and had rightly sent him to judicial lock‑up‑‑‑Said order of the Magistrate was neither arbitrary nor capricious and was well within his jurisdiction‑‑ Constitutional petition was dismissed in limine in circumstances. Sardar Mahboob for Petitioner. This writ petition is directed against the order dated 3‑10‑1996 passed by the Judicial Magistrate Section 30, P.S. Saddar, Lodhran whereby he declined the prayer of the police to grant physical remand of one Muhammad Wakeel with effect from 2‑10‑1996 to 10‑10‑1996.

2. The brief facts are that a case under section 324/337‑F(iv)/337‑L(ii)/34, . P.P.C. was registered at P.S. Saddar, Lodhran vide R.R. No.233 of 1996 dated 20‑9‑1996 against the aforesaid Muhammad Wakeel and one Muhammad Ilyas and the allegation against Muhammad Wakeel i.e. respondent No.2 was that he fired at Nazim Ali with 222 rifle and caused him injuries. The police had obtained physical remand of aforesaid Muhammad Wakeel from the Ilaqa Magistrate on 27‑9‑1996 for four days. After the expiry of the aforesaid remand period the police put in another petition on 3‑10‑1996 for obtaining the remand from 2‑10‑1996 to 10‑10‑1996. The remand was refused by the Judicial Magistrate on the ground that the accused was to be produced yesterday on the expiry of the previous remand but the same was not done. Instead the accused was produced before the Judicial Magistrate with the delay of one day. He considered that the delay of one day amounted to illegal detention for which he intimated the Superintendent of Police, Lodhran for appropriate action against the officials at default.

3. It is thus obvious that the police acted with lethargy to produce the accused before the Court after the expiry of the previous remand. It is also clear that they could not effect the recovery of 222 rifle from the accused during that period. In such a situation and keeping in view the conduct of the police the learned Judicial Magistrate was justified to decline further physical remand of the accused, namely, Muhammad Wakeel i.e. respondent No.2 and rightly sent him to the judicial lock‑up. The mere fact that the police was unable to effect the recovery of the weapon of offence during the period of first remand would tell upon their inefficiency which would rightly disentitle them to further physical remand of the accused on the ground that they wanted to recover the weapon of offence. The impugned order passed by the learned Judicial Magistrate is neither arbitrary nor capricious but appears to be well within his jurisdiction. The writ petition in such circumstances would not be competent so as to call for interference with the impugned order. It is accordingly dismissed in limine. N.H.Q./N‑34/L Petition dismissed.