2016 P Cr (PLP)

The petitioners along with others, after having been implicated in criminal case registered through FIR No.1038, dated 10.11.2015, under sections, 186, 224, 225, 324, 341, 353, 148, 149, P.P.C., read with section 7 of Anti-Terrorism Act, 1997, at Police Station, Sadiq Abad, District Rawalpindi; were arrested by the local police on the event of refusal of their pre-arrest bail by the learned Judge, ATC-II, Rawalpindi, on 14.12.2015, and after completion of twenty-four hours with the police, the accused persons, namely, Raja Waheed Mehfooz, Raja Nasir Mehfooz and Raja Yasir Khan, were produced before the learned Judge, ATC-II, Rawalpindi, with a request of having their physical remand. The learned Judge by means of following two lines order dated 15.12.2015, granted 15-days physical remand of the accused persons to the police:- "Court is of the view that 15 days physical remand is justified. Application is, therefore, allowed. The accused are ordered to be produced on 30.12.2015."

2. The petitioner, through the present Constitutional petition, has called in question the legality of the above-referred order of the learned Judge, ATC-II, Rawalpindi, by maintaining that the same is in complete negation of the settled principles provided for the Courts granting physical remand of the accused persons involved in a criminal case. Further contended that, Ghulam Khan, the alleged injured person in the offence reported through the present criminal case, got recorded his statement under section 164, Cr.P.C., whereby none of the accused persons, who were handed over to the police on physical remand by the learned Judge, were implicated by the said injured person. Also submitted that, Mst. Abida, the other person, who allegedly received injuries as a result of alleged firing by the accused persons, also disowned the allegations against the petitioner and other accused persons. The said lady also appeared before this Court in confirmation of her such stated stance.

3. The principles provided in section 167, Cr.P.C. are, in fact, the guidelines for the Court before whom accused persons in criminal cases, are produced for physical remand. In addition to other requirements, it is a mandatory requirement within the view of section 167(3), Cr.P.C. that, the court authorizing under this section detention in the custody of the police shall record his reasons for so doing.

4. The effect of section 167, Cr.P.C. has been dealt with earlier by the Courts in Sub-Continent. The pre-partition view, as was taken by the Lahore High Court, in case of Khairati Ram reported as (AIR 1931 Lahore 476) was to the following effect: "When the accused is produced before a Magistrate, the latter is empowered under S. 167 to direct the detention of the former "for a term not exceeding fifteen days in the whole." It will be observed that this section comes into operation only if the investigation cannot be completed within the period of twenty-four hours fixed by S.61, and that, if the Magistrate authorized detention in the custody of the police, he is enjoined to record his reasons for so doing." After partition, again this Court in case of Rashid v. The State and 2 others (PLD 1970 Lahore 389), while dealing with the issue of remand of accused has held that, the remand is not to be granted mechanically without application of mind, rather it is to be granted only in case of real necessity and also that the period of such remand is to be fixed with due regard to reasonable requirements. From Peshawar jurisdiction, such question has been dealt with in case of Hafeezur Rehman v. The State (PLD 1993 Peshawar 252) by holding that, accused's detention for want of competent remand order would, no doubt, amount to illegal confinement and the same can be a valid ground to release him on bail and one need not go to the extent to hold that there shall not be left any option with the Court to release the accused on bail even if held in detention under an invalid remand order. A Division Bench in Karachi High Court in case Senator Asif Ali Zardari v. The State (2000 MLD 921) even in ATA matter has set-aside a remand order in criminal revisional jurisdiction of the High Court by holding the remand order as illegal and violative to the mandatory requirements of section 167(3), Cr.P.C. and section 19(4) of Anti-Terrorism Act, 1997.

5. The supreme law i.e. The Constitution of the Islamic Republic of Pakistan, 1973, which jealously guarded the respect of a citizen provides through Article 4 thereof that, to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen and no action detrimental to the life, liberty, body, reputation or property of any person shall be taken, except in accordance with law. Part-II of the Constitution, which provides fundamental rights of the citizens, protects every person in view of Article 9 thereof as against any deprivation of life or liberty save in accordance with law.

6. When the petition was placed before the Bench and the factual background was disclosed by the learned counsel for the petitioner, the police was directed to produce the persons on remand along with record. On appearance, Inspector-SHO and the Investigating Officer, both, have admitted that the fact of a statement of Ghulam Khan, the alleged injured, got recorded under section 164, Cr.P.C. by a competent Magistrate, was in the notice of police even, when the accused persons were produced before the learned Judge, ATC-II, Rawalpindi, for the purposes of obtaining the physical remand.

7. We have noted with concern that, the order passed by the learned Judge, ATC-II, Rawalpindi, on 15.12.2015, does not reflect the fact that before handing over the accused persons on physical remand to the police, either the police record was consulted by the learned Judge or even the submissions made on behalf of the accused persons, who were shown to have been represented through their learned counsel at the relevant time, were taken into consideration. The learned Judge, ATC-II, Rawalpindi (Mr. Asif Majeed Awan), who granted physical remand of the accused persons to the police, was also required to see us in the Chambers, who, on appearance, when asked as to how without giving any reasons in the impugned order, such important facts, as indicated above, were ignored by him, while curtailing the liberty of the citizens of Pakistan, he simply responded that he was not exercising his powers within the meaning of section 167, Cr.P.C., rather section 21-E of Anti-Terrorism Act, 1997, provides him powers to allow physical remand of the persons, accused of special offences. The learned Judge, ATC-II, Rawalpindi, is badly mistaken in understanding that, while exercising his powers under section 21-E of Anti-Terrorism Act, 1997, he is not required to give reasons for the order granting physical remand of the accused persons and his such interpretation is completely in violation of the provisions of subsection (3) of section 21-E of the Act, which provides that, the Special Court under Anti-Terrorism Act, 1997, shall be deemed to be a Magistrate for purposes of subsection (3) of section 21-E of the Act. As such, the learned Special Court under Anti-Terrorism Act, while dealing with the matters of remand of the accused persons, is equally responsible to observe the provisions of section 167(3), Cr.P.C., and the remand order, if passed without assigning any reasons, would be a nullity in the eye of law, and would be termed nothing, but as an invalid remand order.

8. In such like situation, when the fundamental rights guaranteed under the Constitution, are shown to have been violated, this Court would not hesitate to exercise its Constitutional jurisdiction and technicalities of availability of any other remedy available under the law, would not stand in the way of its inherent jurisdiction.

9. The writ petition was allowed by this Court on 21.12.2015 by means of short order, when the accused persons in custody of police on physical remand on the strength of an invalid remand order dated 15.12.2015, which was challenged and subsequently was set aside, the accused persons, namely, Raja Waheed Mehfooz, Raja Nasir Mehfooz and Raja Yasir Khan, were granted post-arrest interim protective bail in case FIR No.1038 of 2015, in order to enable them to approach the competent forum for their bail by moving proper application. The above are the reasons of said short order. HBT/W-2/L Petition allowed.