2004 PLP 1410 (YLR)

Nazar Abbas Syed for Respondents. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, filed by Allah Ditta son of Karmal, the order passed by Mr. Saeed Ahmad Awan, learned Judicial Magistrate dated 22‑10‑2002 has been challenged whereby Noor Akbar son of Sohna, Caste Kora, resident of Chak No.129/JB, Tehsil Chiniot District Jhang, accused in the case bearing F.I.R. No.383 dated 31‑7‑2002 registered with Police Station Saddar, Chiniot, was discharged. The order passed by the learned Judicial Magistrate in Urdu word‑for‑word was as under:‑‑

2. Later on the petitioner being the complainant of the said case filed the revision petition but it was dismissed vide order passed by the learned Additional Sessions Judge, Chiniot, dated 1‑4‑2003, with this observation that the order passed by the learned Judicial Magistrate is administrative in nature and being so the remedy under sections 435‑A/439‑A, Cr.P.C. is not available to the petitioner.

3. The above mentioned F.I.R. had reflected on commission of theft of cattle heads the detail of which is given in the F.I.R. got recorded by Allah Ditta, the present petitioner. While on 22‑10‑2002 there was request before the learned Judicial Magistrate made by the local police for physical remand of Noor Akbar for ten days.

4. Learned counsel for the petitioner argued that the learned Judicial Magistrate granted one day's physical remand for the recovery of the stolen animals whereas request of the police was for ten days; that the reasons recorded by the learned Magistrate for disallowing the physical remand in the impugned order were not well‑founded; that the learned Magistrate was not competent to discharge the accused in the said case; that the learned Judicial Magistrate should have granted the physical remand for reasonable period, so that the local police could recover the stolen bullocks; that there was sufficient material on the record brought by the petitioner, therefore, the learned Illaqa Magistrate should have granted the physical remand for a reasonable period and that if this order is not cancelled there shall be an irreparable loss to the petitioner keeping in view the process of recovery of stolen animals by the local police. He referred to the cases reported in "Hussain Ahmad v. Mst. Irshad Bibi and others 1997 SCMR 1503, Soofi Abdul Qadir v. The State and others 2000 PCr.LJ 520 (Karachi) and Arif Ali Khan and another v. The State and 6 others 1993 SCMR 187 (Supreme Court of Pakistan) in support of his arguments, which have been opposed by the learned counsel for the respondent who placed reliance on the cases reported in Muhammad Ali and another v. Station House Officer and 6 others 1994 PCr.LJ 1806 (Lahore); Muhammad Hussain v. The Ilaqa Magistrate 1st Class, Lahore and 4 others 1995 PCr.LJ 97 (Lahore); Saeed Wasif Ali v. Haseeb Rashid and 3 others 1995 PCr.LJ 1575 (Lahore); Muhammad Waseem v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 PCr.LJ 244 (Lahore) and The State v. Wazir Khan PLD 1968 Peshawar 140, in support of his arguments.

5. The provisions of section 167 of Cr.P.C. make it clear that if the learned Magistrate while allowing or disallowing the physical remand of an accused follows the provisions of this section and record the order with reasons which are appealable to mind then the order passed by him cannot be disturbed.

6. Now here in the instant case the physical remand was allowed for one day and it reveals that before recording of the F.I.R., the fact of theft of animals was being examined by the respectables of the locality, therefore, the physical remand for one day was sufficient to arrive at a just conclusion. Actually each case is examined by the Magistrate in the light of its own circumstances. If the circumstances of the case allow for physical remand for more than one day he is competent to grant the same but by recording the sound B reasons in this regard. The order passed by the learned Magistrate calls for no interference. This petition being without merits is hereby dismissed. M.I./A‑915/L Petition dismissed.