P (PLP)

The police registered a case against the said Subedar under sections 408, 409,468 and 420 Pakistan Penal Code, and arrested him the same day. On the following day i.e., on 11th March 1951, he was produced before Sher Bahadur Khan Magistrate, 1st Class, Mardan, with the request that the accused be remanded to judicial custody for a period of ten days i.e. up to 21st March 1951. Mr. Sher Bahadur Khan accepted this request and remanded the accused accordingly. On that very day i.e. 11th March 1951, Pir Tila Muhammad, the son of the accused, made an application to the Court that the accused be released on bail. The Magistrate, who had already remanded to custody, forwarded this application to the S. H. O. Hoti, ordering that he should give the Magistrate the facts of the case. The S. H. O. Hoti returned this application with the remark that the accused had been arrested and a case had been registered against him under the above sections. The Magis trate then wrote the following order on the application: Put up the papers to me in Court tomorrow with a precise of the case with progress made up to date. The S. H. O. Hoti made a report on 12th March 1951, giving the facts of the case which had come to light till then. This report is dated 12th February 1951, which appears to be a mistake and should be read as dated 12th March 1951. In this report it was stated that the accused was suspected to have committed an em bezzlement of over Rs. 27905. After having received this report Mr. Sher Bahadur Khan passed the following order:‑ "I have gone through the papers and the material in possession of the, prosecution. As things stand the offence if any committed by the accused would fall under section 420 Pakistan Penal Code or 468 Pakistan Penal Code which are both bailable. In view of the very big amounts alleged to be involved, I direct the release of the accused on bail in Rs. 20,000 with four sureties". On being moved by Lt. Col. Bacon, the learned Sessions Judge Peshawar, acting under section 497 (5) Criminal Procedure Code cancelled the above order of the learned Magistrate and ordered the accused to be re‑arrested and committed to custody. This order was passed on the 18th of April, 1951. The accused has now come up to this Court, and has made an application under sections 4971498 Criminal Procedure Code, praying that he should be released on bail. So far as the merits of the case are concerned, I am definitely of the opinion that the order of the learned Sessions judge is perfectly correct, and in accord with law and justice. The learned trial Magistrate has failed in his duty in flagrantly disregarding the express provision of law in considering the offence under section 468 Pakistan Penal Code as non‑bailable. The learned Magistrate should have seen that the case against the accused had been registered under sections 408, 409, 468 and 420 Pakistan Penal Code. It was premature on his part to opine as to what offence the accused had committed. For the purpose of deciding whether the accused should be released on bail or not, the trial Court should have at that stage taken the offence, under which the case had been registered as prima facie correct. Out of the four offences, three were non‑bailable, and the Magistrate should, therefore, have refrained from letting out the accused on bail. The learned Magis trate in releasing the accused on bail also completely overlooked that he had on the previous day committed the accused to custody for a period of ten days, which period was to expire on 21st March 1951. The Magistrate should have had very strong grounds for releasing the accused on bail, particularly when he had already committed him to custody. The order of the learned trial Magis trate, therefore, releasing the accused on bail was obviously faulty and bad. The important question which arises in the case is whether today the custody of the accused in the judicial lock‑up is in accord ance with law. Law in order to prevent the commission of crime and to help the efficient administration of justice has empowered the police and the Magistracy in this country to arrest and detain a subject, but it has at the same time confined these powers within such narrowest limits that it can safely be said that the rights of the personal liberty and security of a subject are most adequately protected. A subject of a free State can be deprived, of his liberty, if he offends the law, by the people in authority, but then depriving a subject of his liberty is an extremely serious step to take, and should be taken only strictly, in accordance with law in vogue and after due care and attention. The Code of Criminal Procedure provides a scheme as to the detention of an accused person. In all cases where a person has been concerned in any non‑bailable and cognizable offence, or against whom a reasonable complaint has been made, or' credible information has been received, or a reason able suspicion exists of his having been so concerned, a Police Officer is entitled to arrest him without an order from a Magistrate and without a warrant. Under sections 60 and 61 Criminal Procedure Code, a Police Officer, who arrests a man without a warrant, has to take or send the person arrested before a Magistrate, and under no circumstance the Police Officer is entitled to detain in his custody the person arrested for a longer period than twenty‑four hours, exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. Under section 62 Criminal Procedure Code, a Police Officer in charge of a Police Station has to report to the District Magistrate, or, if he so directs, to the Sub -Divisional Magistrate, the cases of all those persons who are arrested without warrant. The necessary result of these provisions of law is that a Police Officer cannot detain a person arrested by him, whether, without or with a warrant for a longer period than twenty‑four hours. In the meanwhile it is the duty of the Police Officer to com plete the investigation within twenty‑four ‑hours, during which period he is entitled to keep the accused in his custody without reference to a Magistrate. But if he is unable 'to complete the investigation within that period, then he has to produce the accused before a Magistrate under section 167 Criminal Procedure Code. Under this section the Magistrate can authorise the detention of the accused in such custody as he thinks fit, but for a term not exceeding fifteen days in the whole. This is an additional period during which the police has to complete the investigation and submit the report under section 173 Criminal Procedure Code to the Magistrate empowered to take the cognizance of the case. The law disfavours the Police taking a longer time than fifteen days contemplated by section 167 Criminal Procedure Code for the com pletion of the investigation. After the case goes to the Court, the Court then can postpone the commencement of an inquiry of trial and adjourn it for such time as it considers reasonable and may by a warrant remand the accused if in custody. By empowering the Magistrate to postpone the commencement of the inquiry or trial, the law gives further time to the police to complete the investigation, but then it has got to be done under the direct supervision of the Court. The accused even under section 344 Criminal Procedure Code cannot be detained indefinitely and without an express order of a Magistrate. The proviso added to subsection (1) of section 344 Criminal Procedure Code lays down that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time. It follows, therefore, that no person, however heinous the offence may be that he is accused of having committed, can be detained in custody for a longer period than fifteen days without an express authority of a Magistrate. In the case before me, the accused was committed to custody on 18th April 1951. It can be taken that for the first fifteen days his custody was perfectly legal. These fifteen days expired on the 2nd of May, 1951. The custody of the accused, therefore, after that period is clearly unauthorized. He should haves been on the 2nd of May 1951, produced before the Magistrate for taking fresh sanction, for keeping him in custody, No law, much less the Code of Criminal Procedure, permits an accused person to be kept in the lockup without an express order of the person in authority, given from time to time after the expiry of every fifteen days. The accused paving hen in custody since 2nd May 1951, without an express authorities of a Magistrate is entitled to be set free. I am consequently constrained to accept this application, and release the accused; but he shall furnish security of ten persons in Rs. 50,000 each, to the satisfaction of the trial Court for his presence on all hearings till the final decision of the case. The learned trial Court, however, will be well within its right to cancel the bail of the accused, if it has at any time reasonable grounds for believing that the accused has committed a non‑bailable offence, and keep him in custody according to the strict provisions of law. Orders announced K. M. A. Petition accepted.