Form No: HCJD/C.

JUDGEMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

Case No: Writ Petition No.2995 of 2022

The State through Advocate-General, ICT

Vs.
Learned Additional Sessions Judge and 2 others

Petitioner by: Mr. Jahangir Khan Jadoon,

Advocate-General, ICT, Raja
Rizwan Abbasi, Special Public
Prosecutor.
Talat S.I.

Respondents by: M/s. Barrister Salman Safdar,

Muhammad Shoaib Shaheen, Faisal
Farid Chaudhary, Malik Naseem
Abbas Nasir, Amna Ali & Farzana
Faisal Khan, Advocates.

Date of Decision: 16.08.2022

AAMER FAROOQ, J.- The petitioner calls in question

orders dated 12.08.2022 passed by respondents No.1 & 2. The

necessary facts for disposal of the instant petition are that

respondent No.3 is an accused in FIR No.691/2022 dated

09.08.2022 under Sections 124-A, 120, 131, 153, 153-A, 505,

506, 121, 109 & 34 PPC, Police Station, Kohsar, Islamabad.

He was arrested on 09.08.2022 in the said case and was

brought before respondent No.2 on 10.08.2022. On the

referred date two days physical remand was granted to the

police of respondent No.3 which was to lapse on 12.08.2022.

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He was again brought before the Magistrate on the said date

and a request on behalf of the petitioner was made for further

physical custody of the accused which was turned down. The

petitioner preferred criminal revision against the order of

respondent No.2 which was dismissed on the same date due to

want of jurisdiction. Hence, the petition.

2. Learned Advocate-General alongwith Raja Rizwan

Abbasi, Special Public Prosecutor/ASC, inter alia, contended

that the order passed by the Magistrate under Section 167(3)

Cr.P.C. is a judicial order hence, criminal revision was

maintainable. He took the Court through the referred

provision as well as Sections 435, 439 and 439(A) Cr.P.C. to

argue that respondent No.1 had jurisdiction in the matter to

call for the record and decide the matter. He further submitted

that the observation by respondent No.1 to the effect that no

proceedings are pending, hence no record can be called for

under Sections 435, 439 and 439(A) ibid, is incorrect. It was

submitted that the accused was remitted to judicial custody;

that amounts to pendency of the proceedings. It was further

added that reliance on Bahadur and another v. The State and

another (PLD 1985 Supreme Court 62) is incorrect

inasmuch as the referred case was not with respect to the

remand issue. In support of his contentions learned counsel

placed reliance on the case titled Riaz ul Haq and another v.

Muhammad Naveed and another (2005 YLR 805), Abdul

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Waheed v. Additional Sessiions judge and others (2017

MLD 1319) & Riasat Alias Sazti v. The State etc. (2018

MLD 1942). Learned counsel sought to argue on merits of the

case as well and he was stopped inasmuch as the question of

maintainability of the criminal revision goes to the root of the

present petition, hence needs to be decided first.

3. Mr. Shoaib Shaheen, ASC alongwith by Barrister

Salman Safdar and Faisal Farid Chaudhary, Advocates, inter

alia, contended that the order passed by respondent No.1

does not suffer from any jurisdictional or legal defect

warranting interference. It was added that the order passed

under Section 167 (3) Cr.P.C. is not in the nature of a judicial

order, hence criminal revision is not maintainable.

4. Arguments advanced by the learned counsel for the

parties have been heard and the documents placed on record

examined with their able assistance.

5. The factual aspect of the controversy has been spelt out

hereinabove, therefore, need not be reproduced. The legal

questions which call for determination in the instant petition

are twofold. Firstly, as noted above, respondent No.1

dismissed the criminal revision filed by the petitioner on the

ground of maintainability on the basis that the order passed by

the learned Judicial Magistrate refusing remand, is not a

judicial order and hence criminal revision is not

maintainability; secondly, the legality of the remand order

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dated 12.08.2022 has been challenged on the basis that the

same is without application of mind and does not comply with

the parameters laid down by various pronouncements.

6. Taking up first issue of maintainability of the criminal

revision against order passed under Section 167 Cr.P.C. it is

relevant to reproduce the referred provision of law:

“167. Procedure when investigation cannot be

completed in twenty-four hours: (1) Whenever any
person is arrested and detained in custody, and it
appears that the investigation cannot be completed
within the period of twenty four hours fixed by
Section 61, and there are grounds for believing
that the accusation or information is well founded,
the officer incharge of the police-station or the
police-officer making the investigation if he is not
below the rank of the sub-inspector, shall forthwith
transmit to the nearest Magistrate a copy of the
entries in the diary hereinafter prescribed relating
to the case, and shall at the game time forward the
accused to such Magistrate. Explanation :
[Omitted by the Ordinance, XXXVII of 2001, dt.
13-8-2001.]
(2) The Magistrate to whom an accused person is
forwarded under, this section may, whether he has
or has not jurisdiction to try the case, from time to
time, authorize the detention of the accused in such
custody as such Magistrate thinks fit, for a term
not exceeding fifteen days in the whole. If he has
no jurisdiction to try the case or [send] it for trial,
and considers further detention unnecessary, he
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may order the accused to be forwarded to a

Magistrate having such jurisdiction;
Provided that no Magistrate of the Third Class,
and no Magistrate of the Second Class not
specially empowered in this behalf by the
Provincial Government shall authorise detention
in the custody of the police.]
(3) A Magistrate authorizing under this section
detention in the custody of the police shall record
his reasons for so doing.
[(4) The Magistrate, giving such order shall
forward copy of his order, with his reasons for
making it, to the Sessions Judge].
[(5) Notwithstanding anything contained in
Sections 60 and 61 or hereinbefore to the contrary,
where the accused forwarded under sub-section
(2) is a female, the Magistrate shall not except—in
the cases involving QatI or dacoity supported by
reasons to be recorded in writing, authorise-the
detention of the accused in police custody, and the
police officer making an investigation shall
interrogate the accused referred to in subsection
(1) in the prison in the presence of an officer of jail
and a female police officer.
(6) The officer incharge of the prison shall make
appropriate arrangements the admission of the
investigating police officer into the prison for the
purpose of interrogating the accused.
(7) If for the purpose of investigation, it is
necessary that the accused referred to in
subsection (1) be taken out of the prison, the
officer incharge of the police station or the police
officer making investigation, not below the rank of
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Writ Petition No.2995 of 2022

sub-inspector, shall apply to the Magistrate in that

behalf and the Magistrate may, for the reasons to
be recorded in writing, permit taking of accused
out of the prison in the company of a female police
officer appointed by the Magistrate :
Provided that the accused shall not be kept out of
the prison while in the custody of the police
between sunset and sunrise] .”

7. The reading of above provision shows that it pertains to

the procedure where the investigation cannot be completed in

24 hours; it provides that a person arrested and detained by

the police but the investigation is not completed within 24

hours and there are grounds that the accusation or information

against the person is well-founded, the Officer Incharge of the

House or the Officer conducting investigation shall make an

application alongwith entries in the case diary relating to the

case for remanding custody of the accused to the police.

Under Subsection 2 ibid the Magistrate to whom the request is

made, whether has jurisdiction to try the case or not, can from

time to time authorize detention of the accused as the

Magistrate thinks fit for a term not exceeding 15 days in the

whole. Where the Magistrate authorizes the detention reasons

are recorded for doing so and a copy thereof, under subsection

4 ibid, is forwarded to the concerned Sessions Judge. An

order passed under subsection 3 has been considered as a

judicial order since long. The seminal judgments on this issue

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Writ Petition No.2995 of 2022

is Muhammad Rafi v. The State and 2 others (1969 P. Cr. L.

J. 873) wherein the Hon’ble Lahore High Court observed that

the words of Section 167 Cr.P.C. are clear that the accused is

to be forwarded to a Magistrate and not that a Magistrate has

to make himself available to the police in a building where a

police lock up is situated. It was added that it is now

established that when a Magistrate passes an order of remand

to police custody under Section 167 Cr.P.C., he performs a

judicial function. The Hon’ble Lahore High Court went on to

observe that judicial functions are to be performed in an open

atmosphere. If the Magistrates are permitted to pass orders of

remand in police stations where the accused, admittedly, have

no means to have recourse to a lawyer or their relatives, the

whole significance of section 167 Cr.P.C. of the Criminal

Procedure Code would disappear and it will amount to a

farcical performance of imperative legal requirements

concerning the liberty of a citizen. In Muhammad Siddiq v.

Province of Sindh through home Secretary, Karachi and 2

others (PLD 1992 Karachi 358) the Hon’ble Division Bench

of the Sindh High Court reaffirmed the position that a

Magistrate while hearing application for grant of remand of an

accused person performs judicial function and the accused

through his lawyer, friend or relative is entitled to raise

objections to the passing of such orders. It was added that it is

therefore, necessary for a Magistrate to pass orders only in

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open Court and it is not expected that a Magistrate shall pass

orders granting remand of accused in a mechanical manner

but has to examine very carefully the justification for

depriving a citizen of his liberty which can only be done if

material justifying such action is available on record. It was

further elucidated that Section 167 Cr.P.C. is an exception to

Section 61 Cr.P.C. hence is to be interpreted with great

caution and care.

8. In Riaz ul Haq and another v. Muhammad Naveed

and another (2005 YLR 805) the Magistrate had refused

remand under Section 167 Cr.P.C.; against the same a revision

application was filed before the Sessions Court where further

remand was granted. The Hon’ble Lahore High Court

affirmed the position that the order passed by the Magistrate is

a judicial function. Similar views were expressed in Misbah

ul Hassan v. The State and 3 others (2005 P. Cr. L. J. 1709)

as well as Abdul Waheed v. Additional Sessiions judge and

others (2017 MLD 1319) and Mian Ghulam Ijaz and others

v. The State and others (PLD 2018 Lahore 151).

9. Learned Revisional Court while holding that a criminal

revision is not maintainable against the order passed under

Section 167 Cr.P.C. has placed reliance on the case titled

Bahadur and another v. The State and another (PLD 1985

Supreme Court 62). The referred matter concerned

submission of report under Section 173 Cr.P.C. where the

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police authorities had recommended discharge of the accused

which was allowed by the Magistrate and against the same

decision a revision petition was filed under Sections 435 to

439 Cr.P.C. The august Apex Court held that in Criminal

Procedure Code a Magistrate is entrusted with diverse duties

and in discharging the same does not always function as a

Court, conduct judicial proceedings or is amenable to the

revisional jurisdiction. It was added that some of his powers

and duties under the Code are administrative, executive or

ministerial and he discharges these duties not as a Court but as

a persona designate. The Hon’ble Supreme Court of Pakistan

added that mere name or designation of a Magistrate is not

decisive of the question.

10. On the touchstone of the referred judgment of the

Hon’ble Supreme Court of Pakistan it has been concluded by

the revisional Court that the function under Section 167

Cr.P.C. is not a judicial. Preponderance of the authorities after

PLD 1985 Supreme Court 62 supra are that the function

performed under Section 167 Cr.P.C. is a judicial. In PLD

1985 Supreme Court 62 supra the specific function

regarding granting or refusing of remand under Section 167

Cr.P.C. was never discussed. In a subsequent decision

reported as Safdar v. Zafar etc. (2002 SCMR 63) a three

members Bench of the Hon’ble Supreme Court of Pakistan

obiter approved the filing of revision petition against the

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discharge order.

11. In the referred backdrop since 2002 SCMR 63 supra is

later in time and is of three members Bench as was the case

also in PLD 1985 Supreme Court 62 supra hence, the later

in time will prevail. Moreover, the decision in PLD 1985

Supreme Court 62 supra refers to Part-D of Lahore High

Court Rules and Orders Volume-III (which are also being

adopted and used by this Court) whereas the relevant section

for the present controversy is Part-B of Volume-III ibid.

12. In view of the above referred position of law, the order

dated 12.08.2022 passed by respondent No.1 is untenable and

cannot sustain in the eye of law.

13. Though on the question of refusal of remand no

arguments were advanced by learned counsel for the parties

but few judgments which lay down the guiding principles are

being mentioned for further guidance of the

Magistrate/Courts. Part-B of Lahore High Court Rules and

Orders Volume-III pertains to remand in police custody. Rule

8 deals with principles applying in remand. The said Rule is

reproduced below:

8. Principle applying remand cases.-- The

following principles are laid down for the
guidance of Magistrates in the matter of granting
remands, and District Magistrates are required to
see that they are carefully applied:-
(i) Under no circumstances should an
accused person be remanded to Police
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custody unless it is made clear that his

presence is actually needed in order to serve
some important and specific purpose
connected with the completion of the
inquiry. A general statement by the officer
applying for the remand that the accused
may be able to give further information
should not be accepted.
(ii) When an accused person is
remanded to Police custody the
period of the remand should be as
short as possible.
(iii) In all ordinary cases in which
time is required by the Police to
complete the inquiry, the accused
person should be detained in
magisterial custody.
(iv) Where the object of the remand is
merely the verification of the
prisoner's statement, he should be
remanded to magisterial custody.
(v) An accused person who has made
a confession before a Magistrate
should be sent to the Judicial lock-up
and not made over to the Police after
the confession has been recorded. If
the Police subsequently require the
accused person for the investigation,
a written application should be made
giving reasons in detail why he is
required and an order obtained from
the Magistrate for his delivery to them
for the specific purposes 70 named in
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the application. If an accused person,

who has been produced for the
purpose of making a confession, has
declined to make a confession or has
made a statement which is
unsatisfactory from the point of view
of the prosecution he should not be
remanded to Police custody.”

14. Under Rule 9 as well as Sections 163 & 167 (3) Cr.P.C.

where the remand is granted to police reasons for doing so are

forwarded to the Sessions Judge or District Magistrate, as the

case may be. The sole reason for such provision is to ensure

check and balance on the police authorities as well as the

Magistrate inasmuch as the Sessions Court has supervisory

function inasmuch as the remand in police custody has a

drastic impact on the liberty of an individual as he is deprived

of his fundamental right of freedom; the Sessions Court needs

to supervise function of Magistrate as well as police

authorities. The case of Ghulam Sarwar and another v. The

State (1984 P. Cr. L. J. 2588) lucidly summarises the law on

the subject and lays down principles to be followed for grant

or refusal of remand in police custody. The principles are as

follows:

“(1) During first 15 days, the Magistrate may

authorise the detention of the accused in judicial
custody liberally but shall not authorise the
detention in the custody of the police except on
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strong and excep tional grounds and that too, for

the shortest possible period;

(2) The Magistrate shall record reasons for the

grant of remand.

(3) The Magistrate shall forward a copy of his

order passed under section 167, Cr.P.C. to the
Sessions Judge concerned.

(4) After the expiry of 15 days, the Magistrate shall

require the police to submit complete or
incomplete challan and in case, the challan is not
submitted, he shall refuse further detention of the
accused and shall release him on bail with or
without surety.

(5) After the expiry of 15 days, no remand shall be

granted unless, the application is moved by the
police for the grant of remand/ adjournment.

(6) The application moved by the prosecution/

police after the expiry of 15 days of the arrest of
the accused, be treated as an application for
adjournment under section 344, Cr.P.C.

(7) Before granting remand, the Magistrate shall

assure that evidence sufficient to raise suspicion
that the accused has committed the offence has
been collected by the police and that further
evidence will be obtained after the remand is
granted.
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Writ Petition No.2995 of 2022

(8) The Magistrate shall not grant remand

/adjournment in the absence of the accused.

(9) The Magistrate should avoid giving remand

/adjournment at his residence.

(10) The Magistrate shall give opportunity to the

accused to raise objection, if any, to the grant of
adjournment /remand.

(11) The Magistrate shall record objection which

may be raised by an accused person and shall give
reasons for the rejection of the same.

(12) The Magistrate shall examine police file

before deciding the question of remand.

(13) If no investigation was conducted after having

obtained remand, the Magistrate shall refuse to
grant further remand /adjournment.

(14) The Magistrate shall not allow remand/

adjournment after 2 months (which is a reasonable
time) of the arrest of the accused unless it is
unavoidable.

(15) In case, complete challan is not submitted, the

Magistrate shall commence trial on the strength of
incomplete challan and examine the witnesses
given in the list of witnesses.

(16) If the challan is not submitted within 2

months, the Magistrate shall report the matter to
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Writ Petition No.2995 of 2022

the Sessions Judge of the district and also bring

the default of the police to the notice of
Superintendent of Police of the district.

(17) The Magistrate shall not grant remand

mechanically for the sake of co-operation with the
prosecution/ police.

(18) The Magistrate shall always give reasons for

the grant of remand and adjournment.

The Magistrates should realize that they are

answerable and account able to the High Court for
the illegalities and irregularities done by them and
that the High 'Court under section 439, Cr.P.C. is
quite competent to examine the correctness of the
orders passed by them and in case they violate the
instructions given by High Court, serious action
may be taken against them.”

15. In Rashid v. The State and 2 others (PLD 1970

Lahore 389) the Hon’ble Lahore High Court observed that

the order for remand should not be made for a mechanical

fashion rather with the application of mind. It was observed

that under Section 167 Cr.P.C. though the Magistrate is not

expected to pass elaborate order he is certainly required to

briefly intimate the reasons for remand a person to police

custody. It was added that Magistrate acting under Section

167 Cr.P.C. has to way evidence to decide whether the

prisoner should be detained in custody or not and this function

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Writ Petition No.2995 of 2022

of his is essentially a judicial function. The remand to police

or judicial custody should not be granted in a mechanical

fashion; application of mind is must and should be granted in

case of real necessity and the period should be fixed to the

reasonable required of the case as it involves the liberty of the

citizen of the State.

16. In view of above case law as well as Lahore High Court

Rules and Orders it is crystal clear that remanding an accused

to police custody is to be exercised with great caution as it

tantamount to depriving a citizen of his liberty; however, the

accusation or allegation made against the accused also needs

to be investigated in a thorough and proper manner and where

the custody of the accused is essential for moving forward

with the investigation he may be remanded to police custody

for a minimum possible time keeping in view the request

made by the police and in regards to the material available

and also by going through the police diaries as to the

investigation so far conducted by the police. As also noted

above, the order for remanding an accused to police custody

needs to be intimated to the Sessions Court as it has

supervisory jurisdiction.

17. The contention by learned Advocate-General,

Islamabad Capital Territory as well as Raja Rizwan Abbasi,

Special Public Prosecutor that proceedings are pending in the

form of appearance of the accused before the learned

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Magistrate when he is remitted to judicial custody, hence the

observation by respondent No.1 to the effect that no

proceedings are pending are not correct. Though the

arguments on remand were not addressed but the case law was

cited by the learned counsel for the petitioner at the time of

admission of case as to the scope and principle of remand,

hence they are produced above, but no finding is being

rendered on the merit of refusal of remand as only the legal

question regarding maintainability of the criminal revision is

being decided in the instant matter.

18. In view of the foregoing, the instant petition is allowed

and order dated 12.08.2022 passed by respondent No.1 is set

aside; consequently, the criminal revision filed by the

petitioner shall be deemed to be pending before respondent

No.1. This Court was informed that a bail application filed by

respondent No.3 is fixed for today; criminal revision shall be

taken up today by respondent No.1 and the parties shall

appear before referred respondent. The criminal revision shall

be decided in accordance with law after hearing the parties.

Office is directed to remit copy of this judgment to the

Sessions Court for guidance.

(AAMER FAROOQ)
JUDGE

Approved for reporting

*M.Naveed*