ISHRAT alias SHAISTA vs STATION HOUSE OFFICER
This habeas corpus petition was filed seeking the release of the petitioner's husband, who was detained in judicial custody pursuant to an FIR registered under sections 420, 468, and 471 of the Pakistan Penal Code 1860, on the ground that his detention was illegal due to the absence of a proper remand order and delay in the submission of the challan. The core legal questions were whether the detention became illegal due to administrative delays in forwarding the challan from the Prosecution Branch to the court, and whether the absence of a specific police request for judicial remand vitiated the remand order. The Lahore High Court held that the detention was not illegal because the accused was duly remanded by the magistrate and produced on each adjourned date pursuant to section 344 of the Code of Criminal Procedure 1898, and once the challan was submitted to the prosecution branch, no further police request for remand was necessary. However, considering that the offences were not of a heinous nature, the court treated the habeas petition as a post-arrest bail application and granted bail, noting that the offences under sections 468 and 471 were non-cognizable and section 420 was bailable.
- Does the detention of an accused become illegal if the challan remains pending with the Prosecution Branch and is not immediately forwarded to the court?
- Is a fresh police request for judicial remand required after the challan has been prepared and sent to the Prosecution Branch?
- Can a habeas corpus petition be converted into a post-arrest bail application by the High Court?
- Whether offences under sections 420, 468, and 471 of the Pakistan Penal Code 1860 warrant the grant of bail when the accused is in judicial custody?
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 344, Code of Criminal Procedure 1898
ORDER
' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---Through this habeas petition it is stated that the husband of the petitioner had been booked in case F.I.R. No, 168 dated 17-5-2011 registered against him at Police Station City Sangla Hill, under sections 420, 468 and 471, P.P.C. She further stated in her petition that her husband Muhammad Ali had been detained in judicial lock up without having any proper remand order, therefore, his custody is illegal and prayed for his release from the jail.
2. On this petition after giving notice to the respondents the record has been requisitioned from the police station as well as from the Superintendent District Jail Sheikhupura. The record revealed that the challan in the case was completed on 30-6-2011, while the accused of the case was arrested by the police on 27-6-2011. The accused was sent on judicial remand on 27-6-2011 as is evident from the first Robkar of the learned Area Magistrate. The challan was then forwarded by the Deputy District Public Prosecutor Nankana Sahib on 2-8-2011 to the Court. It appears that during the period starting from 30-6-2011 till 2-8-2011 the file remained with the Prosecution Branch. On the other hand, the learned Magistrate sent the accused to judicial lock up on 27-6-2011 with a direction for his production in the Court on 11-7-2011. The accused was produced in the court on 11-7-2011, 25-7- 2011, 28-7-2011 and 10-8-2011 during which time the challan had not been received in the court.
3. In this background the learned counsel for the petitioner submitted that the court sent the accused in judicial lock up without passing any appropriate order in respect of submission of challan, therefore, the custody of the accused with the Jail Authorities was illegal, as such, the petitioner is liable to be released. In this connection learned counsel for the petitioner has referred to the cases of Allah Ditta v. The State 1991 PCr.LJ 408, Syed Azmat All Shah and another v. The State another (PLD 1999 Peshawar 39). The learned counsel has also referred to two unreported cases i.e, Criminal Miscellaneous No,231-H/1987 and Criminal Miscellaneous 241-H/1087 which have been cited in the judgment of this court in the case of Allah Ditta (supra). The judgments have been gone through minutely and it is found that those cases are distinguishable from the facts of the instant case. In the instant case the challan had been prepared and was sent to the Prosecution Branch for onward transmissions to the Court concerned, which was not the case in the cited judgments. The contention of the counsel that detention of the accused has become illegal for not passing the proper remand order is also of no consequence for the reasons that the accused was being produced in the court on each adjourned date; under section 344, Cr.P.C. The other arguments of the counsel that no A request for sending the accused to judicial lock up from the side of the police is available on the file rendering the remand order illegal, is untenable for the simple reason that after sending the challan to the Prosecution Branch the police had completed its job whereafter the only duty of the police left in the matter was the production of the accused from the jail before the court on the adjourned date, therefore, there was no need of making any request for sending the accused to the judicial remand which is required in cases where challan is not prepared and the file, is with police.
4. As it has been observed above that the detention of the accused Muhammad Ali with the Superintendent District Jail Sheikhupura is not illegal, however, this court while taking it into consideration that the. Offences charged against the petitioner are not of heinous nature, is inclined to treat this petition as after arrest bail of the petitioner Muhammad Ali. Notice of this petition has been given to the State which was accepted. It is found that the offences of sections 468, 471, P.P.C. Are non-cognizable while the offence under section 420, P.P.C. Is bailable in nature, therefore this court admits the petitioner to bail who is in judicial lock, up since 27-6-2011 till date.
The petitioner shall be released on bail on furnishing of bail bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the learned trial court. With the above terms this petition is disposed of.
Cited by 2 cases
- Nazir Ahmad vs CCPO, Lahore, etc 2021 LHC 7155, PLJ 2022 Cr.C. 670, 2022 PLJ 263
- Nazir Ahmed vs Capital City Police Officer, Lahore and 5 others 2023 YLR 382