2009 PLP 2303 (YLR)

EJAZ AFZAL KHAN, J.--Petitioners through the instant writ petition have asked for the issuance of an appropriate writ directing the respondents not to arrest and remove them to the tribal area without complying with the provision contained in section 86-A, Cr.P.C.

2. Learned counsel appearing on behalf of the petitioners contended that once the petitioners were released on bail in criminal cases registered against them, the respondents could not withhold their release nor could they remove them to the Court functioning in the hierarchy of FCR without complying with the provision contained in section 86-A, Cr.P.C. So long as, the learned counsel added, the said provision is not complied with, their release from jail could not be withheld.

3. As against that, Mr. Qaiser Rashid, A.A-G. and Mr. Iqbal Ahmad Durrani, learned counsel for respondent vehemently argued that application of section 86-A, Cr.P.C. would come into play only when a person arrested pursuant to a warrant issued under section 85 of the Cr.P.C. is removed to the tribal area for trial, but in this case the petitioners were already in jail, therefore, they cannot be held to have been arrested pursuant to a warrant issued under section 85 of the Cr.P.C. The learned A.A-G. and the learned counsel further submitted that compliance with the provision of section 86-A of the Cr.P.C. would hardly be called for, as the petitioners will not be removed to the tribal area, because the Court functioning in the hierarchy of FCR are now housed at Peshawar.

4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.

5. The record reveals that the petitioners were arrested in few criminal cases registered against them in Police Station Khazana and Police Station Michani Gate, 'Peshawar in which they were released on bail. When their release warrants were taken to the Jail, they were confined in, it transpired that they were also required in a case registered against them in the tribal area. Assumed, agreed and accepted that they have not been arrested pursuant to a warrant issued under section 85 of the Cr.P.C. nor shall they be physically removed to the tribal area because most of the Courts functioning in the tribal area under the umbrella of the FCR are now housed at Peshawar. But the question arises, why was their release withheld? If the answer to the question is that they were required in a case registered against them in the tribal area, then resort could be had to the course provided by law. When the respondent did not resort to the course provided by law, we would be constrained to hold that they are out to defeat the spirit of law without defeating its words. Such a course, we are afraid, cannot be allowed. The Court of law, in any case, has to preserve the spirit of law, while preserving its words, notwithstanding the device employed towards that end is quite deft, dexterous and even deceitful. We, therefore, allow this writ petition and direct that the petitioners be released forthwith. In case the respondents require the petitioners in the case mentioned above, they would be at liberty to procure their arrest and put them to trial in the Courts functioning under the umbrella of the FCR after complying with the provision of section 86-A of the Cr.P.C. H.B.T./168/P?????????????????????????????????????????????????????????????????????????????????????? Petition allowed.