SHADI KHAN vs MUHAMMAD SALEEM AND 3 Other

1. MUHAMMAD HALEEM, J: Upon hearing the learned Assistant Advocate --General, Punjab, and counsel for the first three respondents, we have decided to convert this petition into an appeal and to dispose it of as such.

2. Against the first three respondents and others a case was registered under sections 302, 307 read with section 34, P. P. C. At Police Station Kallar Syedan, District Rawalpindi, on 18th of September 1976. In that incident Ghulam Haidar was tilled and others had received injuries dangerous to life.

3. The High Court had earlier dismissed the bail application of these respondents on merits by order dated 22nd of February 1977. Thereafter, the respondents again applied for bail through Criminal Miscellaneous No. 2880-B of 1977 and a learned Single Judge in the Lahore High Court, by order dated 16th November 1977, allowed them bail on the ground that they were being held in judicial custody without any order of remand in violation of section 344, Cr. P. C.

4. The learned counsel for the appellant contends that the learned Single Judge failed to notice the order dated 16th of April 1977, by which the learned Sessions Judge remanded them to judicial custody and accordingly, on an erroneous assumption that there was no such order, held their detention in jail to be illegal. The learned counsel further contends that the case of Saffur Bahman v. The State (PLD 1078 Lah. 314) is distinguishable on facts as in that case the Magistrate had sent the case to the Court of Session. Lyallpur, and also fixed the date for his production in the Court but neither was he produced nor was any order of remand passed by the Sessions Judge and consequently the case stood adjourned sine die. However, in the instant case there is an order for remand and, therefore, there cannot be any analogy for relying on that case which principally proceeds on the basis that the case cannot be adjourned sine die in terms of section 344, Cr. P. C.

5. The contention of the learned counsel for the appellant has substance, for, it is apparent from the order that bail was allowed on the ground that the case stood adjourned sine die as there was no order of remand legalising their detention. This was factually incorrect as there was an order in existence by which they were ordered to be detained in Jail and were to be produced in Court on a date to be fixed for the hearing of the case. On this short ground the impugned order is liable to tae set aside. However, the learned counsel for the respondents contends that the order does riot satisfy the requirement of section 344, Cr. P. C. As the period was not specified and, therefore, there was no compliance of this provision. In support of his contention the learned counsel stressed that the words "from time to time" and "for such time as it may consider reasonable" in section 344, Cr.

6. P. C. Visualise the period of detention and the postponement or adjournment of the case to another specified date which is not apparent from the tenor of the order.

7. Before the deletion of the provisions relating to committal proceedings, section 220 authorised the Inquiry Magistrate to commit the accused "until and during the trial" to custody. Section 271 provided that when the Court was ready to commence the trial it was then that the accused was required to appear before it. During the interregnum section 220, Cr. P. C. Dispensed with the application of section 344, Cr. P. C. The position now stands altered. There is no corresponding provision like section 220 or 271. The case has now to be sent to the Court of Session for trial without recording any evidence under section 190 (3), Cr. P. C. And cognizance of the offence is taken by the Court of Session under section 193 (1), Cr. P. C. Under the unamended subsection (1) of section 193, the Court of Session took cognizance of the offence only when the accused was committed to it by a Magistrate duly empowered in that behalf. Such being the state of law the question arises as to whether in committing the respondents to custody for the period until the case is fixed for hearing there is a substantial compliance of section 344, Cr. P. C. Section 344 empowers the Court to postpone the commencement of or adjourn any inquiry or trial. It further authorises the Court to do so "from time to time" and "for such time as it considers reason--able." Accordingly, having taken cognizance of the offence under section 193(I) the Sessions Judge postponed the commencement of the trial till such time as the case was fixed for hearing as it was not possible to give any firm date in every case on account of a large number of cases having been sent to the Court of Session pursuant to the deletion of the committal proceedings from A the Criminal Procedure Code. In this context even if the period was not specified still the interregnum must be regarded as reasonable and a sufficient compliance of the words "for such time". They should not be given a rigid meaning for in doing so it would lead to an impossible situation necessitating the production of a number of accused in Court and thereby causing hindrance to the trial of the cases. On this view of the matter there is no occasion for postponing the commencement of the trial now and again. Therefore, it will be out of place to stress the significance of the words "from time to time" which enable the Court to do so as occasion arises.

8. On the interpretation that we have givers it cannot be held as a proposi--petition that the case cannot be adjourned sine die for a provision has to be construed to advance justice. As such it is not possible to affirm the view taken in Saifur Rahman v. The State.

9. For the foregoing reasons the detention of the respondents could not have been held to be illegal.

10. Accordingly, we would allow the appeal and set aside the impugned order dated 16th of November 1977. Non-bailable warrants to issue for their arrest returnable to the District Magistrate, Rawalpindi.