2005 PLP 943 (MLD)

WAHID BUX BROHI J.

The application M.A. No.3978 of 2004 is granted and in consequence thereof the other application M.A. No.3979 of 2004 is taken up for consideration. It may be stated that the main application was dismissed for non-prosecution today and the last mentioned application has been made for recalling the said order under section 561-A, Cr.P.C. This application is supported by the affidavit of learned counsel for applicant, wherein he has explained that when the matter was called he was present before another Bench. Although, it is stated that the matter was not mentioned in the additional list, the Reader of this Court states that roster branch had issued a Supplementary (Katchi) List as usual, since the matter was filed yesterday in late hours and that was the right course adopted by the office. However, in view of the personal ground of learned counsel for the applicant this application is allowed and the main application is taken up for hearing. We have heard Mr. M. Amin Lakhani learned counsel for the applicant who is assisted by Mr. Naeem Qureshi Advocate on the main application. The applicant has been arrested in a case registered at Police Station Ravi Road, Lahore on 14-5-2001 for an offence punishable under section 16/15/9(c) of the Control of Narcotic Substances Act, 1997. In that case a proclamation under section 87, Cr.P.C. was issued against the applicant but the Lahore police could not succeed in apprehending him. On his arrest here at Karachi he was produced before the Judicial Magistrate on 13-11-2004. Learned Judicial Magistrate passed an order remanding the applicant to judicial custody for five days and ordered his production on 18-11-2004. In exercise of the powers under subsection (1) of section 86, Cr.P.C. learned Judicial Magistrate had the first option to direct removal of the applicant in custody to the relevant Court at Lahore, but the aforementioned order is silent if such order was passed. No other document has been filed to suggest if at a subsequent stage the order within the meaning of subsection (1) of section 86, Cr.P.C. was passed by the learned Judicial Magistrate. Then, the first proviso to section 86(1), Cr.P.C. contemplates an action in cases of bailable offence but this course was not available to the learned Judicial Magistrate since the offence is not bailable. Ultimately, the procedure prescribed in the second proviso to section 86(1), Cr.P.C. was the only remedy available to the applicant. In this context it may be mentioned that a proclamation under section 87, Cr.P.C. has already been issued by the Court at Lahore. However, on bare perusal of the second proviso to section 86(1), Cr.P.C. it is manifest that when the offence is not bailable and no direction is endorsed under section 76, Cr.P.C., the applicant has to approach to the learned Sessions Judge of the Division where the arrest has been effected. Even in the precedent case cited by the learned counsel, Walayat Khan v. The State (1993 PCr.LJ 738) the prescribed course was adopted rightly and the Sessions Court was approached, first. Consequently, we direct that within the meaning of second proviso to section 86(1), Cr.P.C. the applicant may approach the relevant Sessions Court at Karachi which shall pass an appropriate order in accordance with law within the scope of the proclamation under section 87, Cr.P.C. issued by the Court at Lahore. Application stands disposed of. M.B.A./A-174/K Order accordingly.