1969L3068 (PLP)

3‑2‑1969 Judge. Statement of Mr. Masood Ansari, Magistrate First Class, Lahore, on S. A.: I was the duty Magistrate in Lahore from 23rd of January 1969. This was according to the rotation list prepared by the District Magistrate. I have seen the remand order marked `A' by the Court. It bears my signatures. It is in the hand of some A. S. I. I cannot positively say whether the applica tion of remand and the order are in the same hand. I passed this remand order in police station Civil Lines. It is not in my hand. I signed this remand order at the request of the police. I have not given any special reasons a to why the remand was being given. The accused in this case were in the police lock‑up and I called them one by one and noted their presence. I did not say anything else. I did not ask them whether they had any relative or whether they would like to be represented by a counsel. Since they were in the lock‑up, I did not put these questions to them.

2. The remand order marked `B' by the Court is signed by me. It is in the handwriting of my Reader. I have not given any reasons in this order for remanding the accused to judicial lock‑up. All that is indicated in my order is that this remand was given at the request of the Police.

3. I am a Magistrate since 13 years. I am fully acquainted with the provisions of section 167 of the Criminal Procedure Code. I am aware that whenever I pass an order of remand under section 167 of the Cr. P. C. I perform a judicial act. I am aware that the accused has a right to be represented by a lawyer at the time when the Court passes an order of remand.

4. On 28th of January 1969, I had gone to my Court in the morning and I was told by the Naib Court that some police officers had been to my Court for obtaining the remand of certain accused persons but because of Curfew, they were not able to produce the accused in Court. I waited for some time and then went to the Old Anarkali Police Station. I found that there were no accused persons in that police station, and I was told by an A. S. I. of that police station that the accused whose remand was required were in the Civil Lines and New Anarkali Police Stations. I went to the Civil Lines. Police Station and passed the order of remand with regard to the accused who were present there. I then came back to my Court and was again told that remand of some of the accused was required by the New Anarkali police. I went there and passed some remand orders. I then went to police Station Cantonment North and also passed some remand orders there. There were no orders from any superior authority to me to go to the police stations and pass remand orders. I acted of my own in this respect, as I felt that Curfew had been imposed and it will not be possible for the police to bring the accused to Court. (Sd.) Ataullah Sajjad, 3‑2‑1969 Judge Let the statement of the detenu be recorded. (Sd.) Ataullah Sajjad, 3‑2‑1969 Judge Statement of Imran son of Muhammad Rafi Butt, resident of House No. 1, Street No. 1, Tajpura, Misri Shah, Lahore, on S. A.: I am a student of 10th Class in Saint Fransis School is New Anarkali, Lahore. I was arrested by the police on 27th of January 1969, near Alfalah. I was proceeding to the Mayo Hospital. I was taken to the Police Station Civil Lines after my arrest. I was kept there for two days and then I was taken to the Tibbi Police Station. I was never produced before any Magistrate during my detention except yesterday when I was remanded to judicial lock‑up. (Sd.) Ataullah Sajjad, 3‑2‑1969 Judge Zamir Ahmad Khan for Petitioner. Malik Abdul Hamid for the State. This order will dispose of three habeas corpus petitions, namely, Cr. Misc. Nos. 564‑H, 568‑H and 570‑H of 1969. The averment in these petitions is that it is known as to under what law the detenus were kept in confinement.

2. When the detenus were produced in response to the notice issued by me, it transpired that they were required in a case registered under sections 148, 307, 395, 436 and 440 read with section 149 of the Pakistan Penal Code. It was stated before me that the remand of the detenus was obtained by the police on 28th of January, 1969, from Mr. Masood Anasri, Magistrate First Class, Lahore. In Cr. Misc. No. 521‑H of 1969, in which the co‑accused of the petitioners were involv ed, a statement had been made by Sub‑Inspector Latif Hussain Shah that the remand order was passed while all the detenus were in the lock‑up. It transpires that the detenus were produced before Mr. Masood Ansari on 2nd of February 1969, on the police report that their custody was no longer required by the police. The Magistrate, thereupon, passed an order remanding them to judicial custody.

3. I recorded the statement of Sub‑Inspector Latif Hussain Shah who had obtained the remand to police custody of the detenus from Mr. Masood Ansari, Magistrate First Class, Lahore. I also recorded the statement of Mr. Masood Ansari. He admitted that the accused were in the police lock‑up when the remand to police custody was granted. He, however, contended that he had called the name of each accused and then signed the remand order. He also stated before me that after learning from his Naib Court that some police men had been to his Court to get some orders of remand, he went from one police station to another to enquire as to in respect of which accused he was required to pass orders of remand.

4. It is clear from the statement of the Sub‑Inspector as well as that of the learned Magistrate that at the time when the order remanding the detenus to police custody was passed they were in the lock‑up. Section 167 of the Criminal Procedure Code was enacted to ensure that the police will not retain the custody of an accused person beyond 24 hours unless a Magistrate had found that there were good reasons that the period of the custody of the police should be extended. It is also proved from the statement of the learned Magistrate that the detenus were never asked whether they wanted to be represented by a lawyer. No reasons have been given for the grant of this remand. On the other hand, it was admitted by the learned Magistrate that the remand order which was marked `A' by me, was in the hand of an A. S. I. This would clearly show that the learned Magistrate never applied his mind to the facts of the case as is enjoined by law, and signed the remand order as drafted by the A. S. I.

5. It is also questionable that a Magistrate should go from police station to police station for passing remands in the manner in which he did according to his statement. The words of section 167 of the Criminal Procedure Code are clear that the accused is to be forwarded to a Magistrate and not that a Magistrate has to make himself available to the police in a building where a police lock‑up is situated. It is now established that when a Magistrate passes an order of remand to police custody under section 167, referred to above, he performs a judicial function. Reference may be made in this connection to In re : Llewely v. Evans (A I R 1926 Bom. 551) and Sundar Singh v. Emperor (A I R 1930 Lah. 945). Judicial functions are to be performed in an open atmosphere. If the Magistrates are permitted to pass orders of remand in police stations where the accused, admittedly, have no means to have recourse to a lawyer or their relatives, the whole significance of section 167 of the Criminal Procedure Code would disappear and it will amount to a farcical performance of imperative legal requirements concerning the liberty of a citizen. The remand order in respect of the detenus obtained on 28th of January 1969, is therefore, clearly in contravention of the provisions of law. The action of the Magistrate is going from police station to police station and passing orders of remand to police custody, while detenu's were in the lock‑up, is clearly illegal. The case of State v. Muhammad Yusaf (P L D 1965 Lah. 324), supports this view.

6. It is further contended that the remand to judicial custody with regard to these detenus was obtained on 2nd of February 1969, in order to give a legal complexion to the custody which was entirely illegal. It is asserted that this had been done to meet the order passed by this Court in Cr. Misc. No. 521‑H of 1969 on 31st of January 1969. There appears to be some force in these contentions.

7. The police report on the basis of which this remand was granted, clearly states that no fresh facts could be discovered from the detenus and their co‑accused as a result of the interrogation. The learned Magistrate did not give any reasons for remanding the detenus to judicial custody. It is imperative on a Magistrate to give reasons for granting a remand, whether it is to the police custody or to the judicial lock‑up. It appears that the Magistrate acted mechanically at the request of the police and did not consider the ques tion whether or not there was sufficient evidence available with the police against the detenus.

8. Since the detenus are in the judicial lock‑up and it appears from the police report, on the basis of which remand order Exh. B. was passed, that they are no longer required for the purpose of investigation, I direct that they be released on bail in the sum of Rs. 5,000 (Rupees five thousand) each with one surety each in the like amount to the satisfaction of the Deputy Registrar of this Court. Petition accepted.