GHULAM ABBAS and 2 others vs THE STATE
This matter arises from a criminal application seeking the release of the applicants on the ground of illegal custody due to the expiration of their remand period and the failure of the police to submit a challan within the statutory timeframe. The core legal question is whether the continued detention of an accused remains lawful in the absence of a valid judicial remand order or a submitted challan. The Sindh High Court held that detention without a remand order or a challan is illegal, entitling the accused to be released on bail. The key principle laid down is that an accused person cannot be kept in custody without a valid judicial remand or a challan, and failure of the prosecution to submit a challan or secure proper remand renders the custody unlawful, warranting release on bail subject to appropriate security.
- Whether the custody of an accused is illegal if no challan is submitted and no remand order subsists?
- Is an accused entitled to bail when their continued detention lacks lawful authority?
- What is the effect of the prosecution's failure to submit a timely challan on the detention of an accused?
ORDER
' The main contention of the learned counsel for the applicants is that the applicants are in custody since 18-4-2001. Their remand period has expired in the first week of May, 2001 and the challan has not yet been submitted in Court. He contended that the applicants' custody was illegal. He placed reliance upon the case of Mst. Asma Khatoon v. Syed Shabbir Hussain Shah and 2 others reported in PLD 1996 Kar.
517.
2. Vide order, dated 27-12-2001, R&P of the case was called for from the trial Court. The R&P from the Court of the Magistrate and the III-Additional Sessions Judge, Karachi (West) was sent for in order to ascertain if challan was submitted by police and a case was pending trial before the learned III- Additional Sessions Judge's Court. For such purpose, the Investigating Officer was also summoned who was reported by S.-I. Zulfiqar Ali to be out of station. The R&P received from the Court of the Magistrate, however, shows that till 20-12-2001 challan had not been submitted on which date the case was adjourned to 5-1-2002.
3. Learned counsel for the State has conceded that custody of the applicants would be illegal in such circumstances of the case.
4. Admittedly, there is neither any remand order nor a challan in the case. The applicants can be kept in custody either under a judicial remand order or under a challan failing which the custody of the applicants would be illegal. The custody of the applicants being illegal, they are directed to be released, however, on bail subject to their furnishing a solvent surety in the sum of Rs,1,00,000 each with P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
5. The prosecution would, however, be at liberty to move for cancellation of bail of the applicants in case it is shown that the challan in the case had been submitted by the police prior to the passing of this order.
6. A copy of this order be sent to Inspector-General of Sindh Police, Karachi.
7. The R&P be returned immediately to the respective Courts.