2000 PLP 921 (MLD)

12. The learned Advocate‑General further went on to argue that by not recording the reasons as required under subsection (3) of section 167, Cr.P.C. and subsection (4) of section 19 of the Act are mere technicalities and failing to enumerate reasons for the same would not make the impugned order illegal. He lastly contended that judicial remand of the applicant has further been obtained from 22‑5‑1999 to 30‑5‑1999 by the Administrative Judge Mr. Rahmat Hussain Jafri of Anti‑Terrorism Court No.l and interim challan has been submitted before the said Court on 24‑5‑1999. He also argued that the previous investigation of the case conducted by DSP Nazeer Ahmed Tanoli was found defective and, therefore, subsequent investigation was carried on, through D.S.P. Amanat Javaid. In support of his submissions he relied upon (1) PLD 1987 SC 13, (2) 1997 SCMR 2008, (3) PLD 1994 SC 281 and (4) 1994.SCMR 2442. In rebuttal to the arguments of the learned Advocate‑General, the learned counsel for the applicant referred to (1) PLD 1950 Lahore 111 (b) and (2) PLD 1971 SC 252 at page 306(aa).

3. At the very outset it will be appropriate to reproduce the impugned order, which reads as follows:‑‑ "Order The application made by the D.S.P., C.I.A. for grant of remand from judicial custody to police custody is allowed and the remand for the date of taking his custody. (Sd.) 10‑5‑1999."

14. On the face of it, it is clear that the order was passed on 10-5‑1999, much before the transfer of custody of the applicant from Central Prison, Karachi to CIA Police, Karachi. It was not denied on behalf of the respondent that the physical custody of the applicant was handed over to DSP Amanat Javaid on Sunday, the 16th May, 1999.

15. It will be pertinent to note that the Anti‑Terrorism Courts for different areas in Karachi Division were established on 6‑5‑1999 vide Notification No.F.13(a)/97‑A‑III(B) and Mr. Rahmat Hussain Jafri was appointed as Administrative Judge of such ATC Court, whereas Mr. Hakim Ali Abbasi was appointed as Presiding, Judge of ATC Court No.7 and started functioning with effect from 8‑5‑1999. It is further evident from the above order that it does not contain any reason. It is further pertinent from the order that no reason whatsoever has been assigned therein as required under subsection (3) of section 167, Cr.P.C. and subsection (4) of section 19 of the Act. Subsection (4) of section 167, Cr.P.C. further requires that a copy of the remand order shall be forwarded with reasons to the Sessions Judge. Here in this case a mandatory provision of law does not appear to have been complied with either by sending a copy to the Sessions Judge concerned or to this Court, being the Court of appeal. It is further obvious from the order itself that the applicant was not produced before the learned Judge at time of passing the impugned remand order. The impugned order further reveals that CIA Police was authorised to take the custody of the applicant from Central Jail, Karachi on any occasion favourable to there, which again does not appear to be in consonance with the law. From the line of argument adopted by the learned Advocate‑General, it appeared that only those days will be counted in which was subjected to interrogation. According to him, 3 days, during which the applicant was not interrogated, would not be included in remand period of 7 days.

16. There is no denial of the fact that the respondent or the police obtaining remand of the applicant was not aware about the pendency of the case before the Court of Special Judge (Suppression of Terrorist Activities), Karachi‑Central. Knowing it fully well the police instead of obtaining remand from the said STA Court, approached the learned Special Judge, Anti‑Terrorism Court, Karachi for the said purpose, which to say the least was in violation of a decision of a Division Bench of this Court reported as 1993 PCr.LJ

221. The applicant was on ball granted to him by the learned Special Judge (Suppression of Terrorists Activities), Karachi‑Central and application for cancellation of his bail was withdrawn by State and the same had been dismissed accordingly by this Court. It was appropriate for the learned Special Judge (Anti‑Terrorism) Court, Karachi to have directed the police to approach the learned trial Court in view of afore‑cited judgment.

17. We are also fortified by the decision in case of Ghulam Sarwar and another v. The State, reported in 1984 PCr.LJ 2588. The relevant observations are reproduced hereunder for the sake of convenience: "

6. Before parting with judgment, I would like to add that it has come to my notice that particularly in cases 'exclusively triable by the Court of Session Magistrates are allowing remand and adjournments in violation of the mandatory provisions of section 167, Cr.P.C. and section 344, Cr.P.C. Although section 167(4), Cr.P.C. requires that the Magistrates shall forward a copy of the order of remand to the Sessions Judge, yet they do not care to do the needful. The Magistrates authorise the detention of the accused in police and judicial custody as a matter of course in token of co‑operation with the police. They do not realize that the are conducting judicial proceedings and that grant of remand is also a part of judicial proceedings. The High Court Rules contain the necessary instructions. The superior Courts have also laid down principles in this behalf for the guidance of subordinate Courts. It is really unfortunate that the Magistrates are playing with the liberty of human beings in routine. They think as if they are accountable to none. For their guidance, I propose following principles, which are in accordance with law, High Court Rules and Order and case‑law laid down by superior Courts:‑‑ . (1) During first 15 days, the Magistrate may authorise the detention of the accused in judicial custody liberally but shall not authorise the detention in the custody of the police except on strong and exceptional grounds. and that too, for the shortest possible period. (2) The Magistrate shall record reasons for the grant of remand. (3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned. (4) After the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case, the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety. (5) After the expiry of 15 days, no remand shall be granted unless, the application is moved by the police for the grant of remand/adjournment. (6) The application moved by the prosecution/police after the expiry of 15 days of the arrest of the accused be treated as an application for adjournment under section 344, Cr.P.C. (7) Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted. (8) The Magistrate shall not grant remand/adjournment in the absence of the accused. (Underlined is ours). (9) The Magistrate should avoid giving remand/adjournment at his residence. (10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment/remand. (11) The Magistrate shall record objection, which may be raised by an accused person and shall give reasons for the rejection of the same. (12) The Magistrate shall examine police file before deciding the question of remand. (13) If no investigation was conducted after having obtained remand; the Magistrate shall refuse to grant further remand/adjournment. (14) The Magistrate shall not allow remand/adjournment after 2 months (which is a reasonable time) of the arrest of the accused unless it is unavoidable. (15) In case, complete challan is not submitted, the Magistrate shall commence trial on the strength of incomplete challan and examine the witnesses given in the list of witnesses. (16) If the challan is not submitted within 2 months the Magistrate shall report the matter to the Sessions Judge of the District and also bring the default of the police, to the notice of Superintendent of Police of the District. (17) The Magistrate shall not grant remand mechanically for the sake of cooperation with the prosecution/police. (18) The Magistrate shall always give reasons for the grant of remand and adjournment. The Magistrates should realize that, they are answerable and accountable to the High Court for the illegalities and irregularities done by them and that the High Court under section 439, Cr,P.C. is quite competent to examine the correctness of the orders passed by them and in case they violate the instructions given by this Court, serious action may be taken against them. Let a copy of this order be sent to District Magistrates/Superintendents of Police and Sessions Judges of all the Districts in Punjab. They would ensure that the instructions given by me in the matter of remand/adjournment are fully complied with by, the Magistrates. The Sessions Judges concerned would bring non‑compliance of these instructions by the Magistrates to the notice of the Registrar/Additional Registrar of the Lahore High Court/Benches. "

18. The Public Prosecutor has been defined in section 18 of the Act, according to which provision the Government shall appoint prosecutor for each Terrorist Court and may also appoint one or more additional public prosecutors. Special public persecutor for any case or class of cases may also be appointed within the meaning of section 492, Cr.P.C. Thus, from the plain reading of the above provisions of law, it is crystal clear that only public prosecutor is competent to apply for the remand and DSP is not competent to do so. The contention raised by the learned Advocate‑General that a Superintendent of Police is a public prosecutor in view of rule 27.4 of Police Rules is without substance and untenable in law. It is well‑settled that rules are subordinate/subject to the Act. , If any provision or rule is inconsistent with the provision of the Act then the provision‑ of the Act is to be followed and rule is to be ignored. Apart from that under the special statute. only public prosecutor under the Act is competent to obtain or apply for remand. The definition of public prosecutor has not been given in the Act. It is well‑settled that when on a particular legal point/aspect a special statute is silent, then the provisions of general law would prevail. In that regard section 32 of the Act, the Criminal Procedure Code has been made applicable. Reliance may further be made to a reported Division Bench decision in the case of Rai Singh and others v. Allahdin and others, reported in PLD 1950 Lahore 111, wherein it has been laid down as follows: "It is an admitted canon of the construction of statutes that when a special procedure has been laid down and a special provision has been made on a particular subject then to that subject a general provision of the statute cannot be applied."

19. Even the application for grant of remand in police custody of applicant was not moved by a public prosecutor or a law officer as envisaged in subsection (5) of section 19 of the Act, it was preferred by DSP, CIA, which was not the requirement of law.

20. Morevoer, the application for grant of remand has not been .preferred before the Administrative Judge, i.e. ATC No.I, who was only competent to do so in view of subsection (3) of section 13 of the Act. According to the above provisions of law, the learned Judge of ATC No.7 granting remand had no jurisdiction and was not competent to do so and as such has travelled beyond his jurisdiction.

21. The authorities cited by the learned Advocate‑General on behalf of the State distinguishable as the facts and circumstances of the cases cited by him are quite different from the facts and circumstances of the present case.

22. The upshot of the above discussion is that the impugned remand order passed by Mr. Hakim Ali Abbasi, learned Special Judge, Anti -Terrorism Court, Karachi Division, is illegal, without jurisdicition and passed without lawful authority, which is hereby set aside.

23. Resultantly the Revision Application stands allowed. N.H;Q./A‑19/K Revision petition accepted.