MUHAMMAD SADIQ Versus STATE

This petition under Article 199 of the Constitution by the accused persons, Muhammad Ali and Muhammad Asif alias Aasoo, has arisen in the following circumstances.

2. On 10-9-1991, a case under sections 457 and 380, P.P.C. was registered on the complaint of Tasawwar Ali, respondent; in that complaint, the petitioners were named as suspects. As a result of some preliminary investigation, the petitioners were arrested on 18-10-1991; they were produced before the Magistrate and he allowed police remand till 28-10-1991. On 29-10-1991, the petitioners were produced before a Magistrate with a request for further police remand; it was said in the police report that the Investigating Officer had been busy in other cases and had, therefore, not been able to interrogate the petitioners. The learned Magistrate refused the remand and discharged the petitioners under section 63, Cr.P.C. and rightly in my view, for the petitioners had remained in police custody for ten days and it was none of their fault that the Investigating Officer had found no time for this case.

3. Against this order, the complainant went in revision under section 435 read with section 439, Cr.P.C. and the learned Additional Sessions Judge "set aside the finding of the learned trial Court" and remanded the case "for further proceedings according to law" with the direction that the petitioners should appear in the trial Court on 6-12-1992. In so doing, the learned Additional Sessions Judge was of the view that the learned Magistrate "was not justified in discharging respondents under section 63, Cr.P.C. on the premises that as police could not recover any allegedly stolen goods from the respondents during 19-10-1991 to 29-10-1991, further physical remand to the respondents was not justified".

4. It is contended that the order of the learned Magistrate was one under section 63, Cr.P.C.; that an administrative order and no revision under sections 435 and 439, Cr.P.C. lay to the Sessions Court. Learned counsel for the complainant maintained that the order of the learned Magistrate was one under section 167, Cr.P.C.; that it was a judicial order and that the order in question was competently made.

5. The order of the learned Magistrate discharging the petitioners was made when the Investigating Officer applied for further remand to police custody. This was obviously an order under section 167, Cr.P.C. section 63, Cr.P.C. merely prohibits the discharge of a person who has been arrested by a Police Officer "except on his own bond, or on bail, or under the special order of a Magistrate", There is no question that under section 167, Cr.P.C., the learned Magistrate was competent to make the order. It was held in Muhammad Wasim v. Additional Sessions Judge, Dera Ghazi Khan and 3 others 1985 P Cr. L J 244, that an order under section 63 does not amount to the cancellation of the case; nor does it deprive the Investigating Officer of his power to continue with the investigation of the case. In Muhammad Wasim case, it was held also that an order under section 63, Cr.P.C. is an administrative order and is not open to revision. This case was followed in Mazhar Iqbal v. The State 1989 P Cr. L J 2241. In neither of those cases was the effect of section 167, Cr.P.C. considered. In Ghulam Sarwar and another v. The State 1984 P Cr. L J 2588 it was held that the Magistrate acting under section 167, Cr.P.C. "are conducting judicial proceedings and that grant of remand is also a part of judicial proceedings".

6. Learned counsel for the petitioners expressed the fear that the order of the learned Additional Sessions Judge amounts to a direction to hand over the custody of the petitioners to the police. This fear is justified in view of the following observations of the learned Additional Sessions Judge:

" .... the learned trial Court was not justified in discharging respondents under section 63, Cr.P.C. on the premises that as police could not recover any allegedly stolen goods from the respondents during 19-10-1991 to 29-10-1991, further physical, remand to the respondents was not justified."

As observed above, the Investigating Officer had kept the petitioners in custody for as long as ten days and then had applied for physical remand saying that he had found no time for this case. The learned Magistrate was, therefore, justified in thinking that there was no ground for physical remand. In making the above observation, the learned Additional Sessions Judge had not taken that important fact into consideration.

7. The effect of the order of the learned Magistrate was that the case had not been cancelled; that the learned Magistrate had refused physical remand and had discharged them; that this did not amount to cancellation of the case and that the Investigating Officer could proceed with the investigation and if there was materials warranting the arrest of the petitioners to apply for permission to the Magistrate to re-arrest them and challan them. As the report under section 173, Cr.P.C. had not. yet been made to the Magistrate, the position of the Magistrate was not that of the "trial Court". I hold, therefore, that the order of the learned Additional Sessions Judge in so far as it held that the learned Magistrate was not justified is discharging the petitioners is without C lawful authority and is of no legal effect. The parties are left to bear their own costs.

N.H.Q./M-1632/L Order accordingly.