1974 P Cr (PLP)

Saeed A. Shaikh for the State. Date of hearing: 28th August 1972. This is an application on behalf of certain persons who are alleged to have been caught in Pakistan Waters near Ormara and have since been sent up for offences under Sea Customs Act.

2. Mr. Muhammad Ali Saeed claims that the offence having taken place in Baluchistan the Courts at Karachi, where the Customs Authorities have now presented the challan, have no jurisdiction. Mr. Saeed A. Shaikh appearing for the respondent claims that there would be jurisdiction under section 183 of the Criminal Procedure Code which is in the following terms:‑ "

183. An offence committed whilst the offender is in the course of performing a journey or voyage may be inquired into or tried by a Court through or into the local limits of whose jurisdiction the offender, or the person against whom, or the thing in respect of which, the offence was committed, passed in the course ref that journey or

3. Section 183 refers to eases where an offence takes place in the course of a voyage gad the law, therefore, provides that it may be tried by a Court through or into tire local limits of whose jurisdiction the person against whom or the thing in respect of which the offence was committed passed. Now Pakistan territorial waters near Ormara are certainly in the eyes of law within the jurisdiction of Pakistan and Pakistan laws will have effect in territorial waters. The waters, however, do not constitute any part of a province and it is. therefore, quite impossible to hold that in the course of the voyage the Province of Baluchistan was at any time crossed course.

4. Mr. Muhammad Ali Saeed points out, however, that admittedly the first information report does not say that the voyage was intended to end at Karachi and that the circumstances would seem to indicate that it was Intended to land on the coast line which would be a part of the Province of Baluchistan. But this is after all only the first information report. Admittedly the voyage was never voluntarily completed and it is the prosecution's case that when the boat was caught or surprised in waters near Ormara the boat was escorted to Karachi. This later part of the journey, therefore, can hardly be described as a part of the journey intended since the boat would not have been allowed to divert its course except in accordance with the wishes of the escorting party. In this view of the matter Mr. Muhammad Ali Saeed had ultimately to concede that the Karachi Courts would have jurisdiction.

5. Mr. Muhammad Ali Saeed then relied upon the alternative, namely, that it will be far more convenient to have this case tried at Hab in the Court of the Assistant commissioner and first Class Magistrates where admittedly the accused persons were first reduced. He pointed out that all the accused persons are residents of Lasbella District and the evidence which they will probably lead for the defence is also of persons residing in Lasbella. This allegation is not supported by an affidavit and not only is It denied by the prosecution but is contradicted also by the addresses of the accused persons given in the so‑called interim charge‑sheet. I am, not, therefore, able to base any conclusion on this.

6. It being at least conceded by the petitioners that the Karachi Court would also have jurisdiction it must follow that in the first instance it would be for the prosecution to decide whether they will put up a caw. Since the ground of convenience oven to the extent of the addresses of the accused persons who incidentally are still in custody is at Karachi is not made out I can see no reason to order transfer of this case. However, if circumstance hereafter arise in which petitioners are so advised they are at liberty to move the application afresh.

7. Although these accused persons were arrested on 15th June 1972, I am surprised to find that no progress appears to have been made in the 01140 so far. I am informed by the learned counsel for the petitioners that they having been arrested &ad remand obtained for the period or a fortnight, what is described as an interim charge‑sheet was then put up but the case has not proceeded because the Customs authorities are still investigating.

8. I do not see any warrant in the law for describing the document 64 sin Interim or a final charge-sheet. The various sections of the Mill Procedure Code. which are relevant, I think may be summarised to yield this position of law. A person when he is arrested must be brought before a Magistrate as early as possible but In any case not later than 24 hour exclusive or the time necessary for the journey from the place of arrest t the Magistrate's Court. Thereafter it is for a Magistrate to allow or refuse an order authorising the custody of the accused person from time to time provided that in the whole it does not exceed a period of 15 days. This too is only if the investigation cannot be completed in the initial period of 24 hours that I have mentioned. Upon the expiry of that period the investigation authority must if it thinks that there is insufficient evidence release that person from custody with or without his executing the bond If, however, he thinks that there is sufficient evidence the accused must be sent up before a Magistrate who has power to take cognizance of the offence It is this last act which is normally called a challan or more properly a police report.

9. There is no such thing in the law as an interim charge‑sheet. There is no warrant whatsoever for the practice which is now prevalent of sending up a charge‑sheet described as interim challan to satisfy the mere form of the law taking it for granted that the investigation will continue and the case not allowed to proceed. The correct position is that this charge sheet is one upon which cognizance can and must be taken. It is true o course that despite this the police may continue its investigation; nothing in the Criminal Procedure Code prevents it and the fact of the cognizance taken does not stand in the way of further investigation. It is equally true, however, that such an investigation does not and cannot be allowed to stand in the way of the trial. If the case does not proceed after cogniz ance it can only be as a result of the order of adjournment granted by the Magistrate under section 344 of the Cr. P. Code, which is as much a Judicial order as any order that a Magistrate can pass. Only if proper grounds are shown to a Magistrate justifying such a course should hey grant an adjournment; otherwise clearly he should proceed. It is not ford the investigating authority or a prosecution agency to take it for granted that upon an interim charge‑sheet having been produced the forms of the law have been satisfied and they are then at leisure to proceed with the case when they please. An order of this kind by a Magistrate, I regret to say is altogether too mechanically being made nowadays and I sincerely hope that Magistrates in future will apply their mind judicially to see whether there exists any special reason why such an adjournment should be granted. I have no doubt that Magistrates have sufficient powers under Criminal Procedure Code to enforce compulsorily the attendance of witnesses where necessary and if that becomes necessary then I have equally no doubt that the will use their powers accordingly. Application rejected.