P L D 1995 Peshawar 118 (PLP)

(d) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 86‑A‑‑‑Scope of S.86‑A, Cr.P.C:

‑Section 86‑A, Cr.P.C. justifies the arrest and subsequent enquiry only when commission of some offence is involved. Fazli Elahi Khan for Petitioner. Bashir Ahmad Malik for Respondents. Date of hearing: 16th April, 1995. Jehangir Khan and Haji Abdul Qayum complainants filed a complaint in writing'(Exh.P.W‑1/2 of original file) against Noor Muhammad and his son Zareef Khan before Political Agent Khyber Agency regarding a dispute over the payment of Rs.2,17,000 in addition to a sum of Rs.95,000 which is the quantum of loss sustained by the complainants.

2. As the respondents belonged to Madina Colony, Daura Road, Peshawar and resided within the settled area, therefore, a non‑bailable warrant was issued against them through District Magistrate, Peshawar in consequence whereof respondent Zareef Khan was arrested and produced before Ilaqa Magistrate who initiated proceedings under section R6‑A, Cr.P.C. At the close' of the proceedings Mr. Muhammad Saleem Khan, Magistrate 1st Class, Peshawar happened to take the view that the allegations brought about in the complaint did not constitute an offence. Considering the dispute to be of civil nature, the learned Magistratc, on, 23‑4‑1994, released the respondent Zareef Khan and refused to send him in custody to the tribal area.

3. The order was challenged before the learned Sessions Judge, Peshawar who was of the view that a prima facie case existed against the accused and thus it was incumbent upon the Magistrate to have sent the accused in custody to the Political Authorities of Khyber Agency. By accepting the revision, the learned Sessions Judge while setting aside the order of the learned Magistrate, issued directions that the accused be handed over to the Political Authorities for further necessary action. Such order dated 23‑1‑1.995 is challenged before this Court under section 561‑A, Cr.P.C.

4. The primary object of section 86‑A, Cr.P.C is to protect the liberty of a citizen of Pakistan and to avoid his false involvement by someone in the tribal territory. A person arrested under section 85, Cr.P.C pursuant to the warrants issued from the tribal territory cannot be removed in custody without Ilaqa Magistrate in the settled area where the arrest was effected becoming satisfied of the' fact that there is a strong or probable presumption that the person arrested committed the offence mentioned in the warrant issued by some authority in the Political Agency. In order that the Magistrate becomes fully aware of the circumstances and in order he is capable of holding a proper enquiry, such Magistrate is invested with powers to hold enquiry in the same manner as if it was a Court within whose jurisdiction the offence had been committed. While exercising such powers, such Magistrate can order the production of evidence so as to see if the person produced in custody is linked with the commission of offence with strong or probable presumption. If so, such person would be removed in custody to the tribal area. If not, the removal in custody to the tribal area would be declined and such person would be released.

5. Another important aspect of section 86‑A, Cr.P.C is that it justifies the arrest and subsequent enquiry as aforesaid only and only when the commission of some offences involved. Repeatedly the word offence is used in the section.

6. Keeping in view the necessary ingredients of section 86‑A, Cr.P.C one should revert back to the original complaint in the instant case. Even a fleeting glance through the complaint would suggest that both the parties had transacted the sale of hides and skins qua which a sum of Rs.1,27,000 had been paid by the respondents while a sum of Rs.2,17,000 had been outstanding out of the total amount of Rs.3,44,

000. The very title of the complaint is for the return of amount due as loan. It is for all intents and purposes a plaint in a civil suit rather than a complaint pointing towards the commission of any offence. There is a letter 1296 P.T‑B dated 10‑6‑1992 from the Political Tehsildar, Bara to Assistant Political Agent, Bara whereby the instant file was sent to the latter for "putting pressure" upon the respondents of the complaint so that they come to terms with the complainants. This was nothing but pressurising the respondents through police for coming to terms on a matter which was purely of civil nature. This aspect of the case was so glaring and so evidently ascertainable from the very complaint in question that it did not require even the holding of an enquiry under section 86‑A, Cr.P.C and the removal in custody of the petitioner to the tribal area could be refused there and then. Mr. Bashir Ahmed Malik, learned counsel for the State very candidly agreed to the notion.

7. In the circumstances, the learned Magistrate had taken a correct and judicial view of the matter. The conclusion drawn by the learned Sessions Judge was not in accord with the true spirit of section 86‑A, Cr.P.C Lest a person involved in civil matters is taken in custody to the tribal area as an accused without having committed any offence whatsoever, the interference by this Court has become necessary under section 561‑A, Cr.P.C. The petition is accepted, the impugned order of the learned Sessions Judge is set aside and that dated 23‑4‑1994 of the learned Magistrate 1st Class is restored. N.H.Q/1782/P ‑ Petition accepted.