State Vs SHO Police Station oghi Mansehra

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Criminal Revision No. 81-P/2026.

Date of hearing: 22.06.2026.

Mr. Ayub Zaman, Addl. AG for the State/petitioner.

JUDGMENT

SAHIBZADA ASADULLAH, J.- The

present Criminal Revision, although arising from an order concerning the custody of a single accused, brings into focus a question of considerably wider importance to the administration of criminal justice. At its heart lies the relationship between the investigative authority of the police, the statutory jurisdiction of the Magistracy, and the constitutional protection of personal liberty. The immediate controversy may appear narrow; the principle which it engages is not. It concerns the point at which investigative authority comes to an end, the circumstances in which judicial custody may thereafter lawfully continue, and, above all,

whether a power which the law has exhausted may be revived by assigning to it another name or invoking another provision of the Code.

What commenced, therefore, as an

examination of an order of remand has revealed a more fundamental institutional concern: the failure of the investigating agency to complete the investigation and submit the report contemplated by law within the prescribed period; the consequent resort to successive orders concerning custody; and the responsibility resting upon a Judicial Magistrate when the coercive authority claimed by the investigating agency has reached the boundary fixed for it by statute. The controversy is not merely about where an accused was kept for a particular night. It concerns whether a citizen, once brought within the protection of judicial authority, may be returned to the physical dominion of the investigating police after the statutory authority for such custody has spent itself; whether an exhausted power under section 167 Cr.P.C. can acquire a second life through

section 344 Cr.P.C.; and whether expressions such as “entrustment of custody”, “physical handover” or any other formulation can achieve indirectly what the law no longer permits directly.

The answer must proceed from a

distinction fundamental to the structure of the Code. Investigation belongs principally to the police; authorization of continued detention belongs to law acting through an independent judicial authority. The Magistrate stands at the point where those two functions meet. He is placed there not as a conduit through which the request of an investigating officer passes into an order of detention, but as the first judicial safeguard between executive coercion and individual liberty.

2.The facts giving rise to the

proceedings may be noticed in their proper sequence. Accused Nasir, son of Banaras, was arrested in connection with the criminal case under investigation and remained in custody.

The investigation, however, was not brought to

its statutory culmination within the period contemplated by law, nor was the requisite report/challan submitted before the competent Court within time. The matter eventually came before the learned Judicial Magistrate and, on 05.03.2026, an order was made whereby custody of the accused was purportedly “entrusted” to the SHO/Investigating Officer. It is the legal character of that “entrustment”, rather than the expression employed to describe it, which invited the attention of this Court. The law is concerned with substance. If the practical consequence of an order is that an accused passes from judicial control into the physical custody and dominion of the investigating police, its legal character does not change because the familiar expression “police remand” has been avoided. Jurisdiction is derived from law, not from the vocabulary in which an order is passed. The nature of custody must therefore be determined by asking where the accused was sent, into whose physical control he was delivered, for what purpose, for what period,

and, most importantly, under what authority of law.

The questions arising from the order dated 05.03.2026 are consequently these: what statutory authority then remained for placing Nasir in the custody of the SHO/Investigating Officer; whether the period contemplated by section 167 Cr.P.C. had already run its course;

and, if so, whether section 344 or any other provision of the Code could lawfully be invoked to return him to police custody.

3.Before these questions are

answered, the position occupied by the Judicial Magistracy within the statutory arrangement deserves consideration. The Magistracy constitutes the first judicial interface between the coercive machinery of investigation and the liberty of an arrested person. Arrest is ordinarily an executive act and investigation predominantly a police function. Continued detention, however, cannot remain a matter of executive choice. The law deliberately

interposes an independent judicial officer between arrest and continued incarceration. That interposition is neither ceremonial nor clerical.

Production of an arrested person before a Magistrate marks an important juridical transition. The question whether the State may continue to restrain his liberty passes from executive assertion to judicial scrutiny. The Magistrate must thereafter satisfy himself that the custody sought is authorized by law, justified by the material placed before him, appropriate to the stage of proceedings, and confined to the duration permitted by statute.

The scheme concerning criminal courts and Magistrates, including the provisions contained in section 3 and 44 Cr.P.C., must be understood in that larger institutional setting. A statutory power affecting liberty carries with it a corresponding judicial obligation to remain within the limits upon which the power was conferred. The circumstance that further investigation may be desirable cannot enlarge jurisdiction. Investigative necessity may explain

why a request has been made; it cannot provide the legal authority by which that request is granted.

4.The matter must next be examined in the light of section 173 Cr.P.C., for the legality of continued custody cannot be separated from the statutory obligation imposed upon the investigating agency to bring its investigation before the competent Court. For facility of reference, the provision is reproduced:

“173. Report of police-officer. — (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon as it is completed, the officer in charge of the police- station shall, through the Public Prosecutor, —

(a)forward to a Magistrate empowered to take cognizance of the offence on a police-report a report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody, or has been released on his bond, and, if so, whether with or without sureties, and (b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under section 154, the officer in

charge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence.

5.The opening command is

important: every investigation “shall be completed without unnecessary delay.” More importantly for the present controversy, the proviso contemplates the very situation in which investigation remains unfinished after fourteen days. Parliament did not leave such a case without a procedural answer. It required an interim report within the succeeding three days.

There is, therefore, no statutory vacuum between an unfinished investigation and the judicial process. The Code itself provides the bridge. It follows that the investigating agency cannot transform its own failure to comply with section 173 Cr. PC., into an enlarged authority over the

person of the accused. Nor can the liberty of an arrested citizen be made collateral security for investigative delay. Two propositions must remain distinct: investigation may remain incomplete; authority to detain does not, merely by reason of that incompleteness, remain indefinitely alive. The former concerns the progress of investigation. The latter concerns the legal authority of the State over the liberty and person of a citizen. Each must independently be justified by law.

6.The statutory design becomes

clearer still when section 173 Cr.PC. is read with section 167 Cr.P.C., which deals specifically with the situation in which investigation cannot be completed within the initial twenty-four hours. It reads:

“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 in charge of the police-station or the police-officer making the investigation if he is not

below the rank of 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 same time forward the accused to such Magistrate.

(2)The Magistrate to whom an accused person is forwarded under this section may, whether he has or has no 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 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 authorize 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 a 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 qatl or dacoity, supported by reasons to be recorded in writing, authorize the detention of the accused in police custody, and the police officer making an investigation shall interrogate the accused referred to in sub-section (1) in the prison in the presence of an officer of jail and a female police-officer.

(6)The officer in charge of the prison shall make appropriate arrangements for 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 sub-section (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 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 the 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.”

The provision is significant as much for what it withholds as for what it confers. The legislature authorizes detention, but in the same sentence marks its temporal boundary. The expression chosen is: “fifteen days in the whole.”

These are words of limitation and exhaustion.

They are not equivalent to “fifteen days at a time”, nor do they contemplate a series of renewable periods. Section 167 thus performs a dual function: it confers jurisdiction upon the Magistrate during investigation and simultaneously defines the boundary beyond which that jurisdiction, as a source of investigative custody, cannot travel. Subsection

(3)reinforces the exceptional character of police custody by requiring the Magistrate to record reasons whenever such custody is authorized.

The requirement is substantive. A citizen is

being delivered into the physical control of the very agency investigating the accusation against him; the law accordingly insists upon an independent judicial reason for doing so. A statutory maximum cannot be enlarged because investigation has proved difficult, nor recommenced, because the available period was inefficiently used. Were it otherwise, a limitation expressed as “in the whole” would protect liberty only in language while surrendering it in operation. What Parliament has limited in express terms cannot be enlarged by administrative necessity or judicial terminology.

7.The facts must again be brought into focus. When Nasir was produced, and the order dated 05.03.2026 came to be made, the controlling question was no longer simply whether further investigation was desirable.

Witnesses may still have remained to be examined; documents may have been awaited;

information may have required verification; and

further investigative steps may genuinely have been necessary. Those considerations, however, addressed necessity. They did not answer jurisdiction. The anterior question was whether the law still permitted Nasir to be delivered into the physical custody of the investigating police.

Unless an affirmative answer could be found in the Code, the investigative utility of obtaining his custody was beside the point. There is an important difference between jurisdiction and discretion. Jurisdiction identifies what a judicial officer is legally empowered to do; discretion governs the choice between lawful alternatives within that jurisdiction. The latter cannot supply the former. A Magistrate may exercise discretion only after the existence of jurisdiction has been established. Judicial discretion can choose between courses which the law permits;

it cannot create a course which the law has withheld.

8.At this stage section 190 Cr.P.C.

assumes particular significance because it

identifies the statutory gateway through which a Magistrate takes cognizance. It provides:

“190. Cognizance of offences by Magistrates. — (1) All Magistrates of the first class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence—

(a)...........

(b)upon a report in writing of such facts made by any police officer;

(c)...........

This provision marks an important transition in criminal procedure. Investigation is one juridical stage; cognizance and proceedings before a Court are another. Powers attaching to one stage cannot be assumed to accompany the other merely because the same accused and the same criminal accusation remain involved. It is at this point that the pronouncement of the Hon'ble Supreme Court in Mehar Khan v.

Yaqub Khan and another (1981 SCMR 267) becomes particularly instructive. The Supreme Court considered the relationship between sections 190 and 344 after the abolition of commitment proceedings and held that where a Magistrate, after taking cognizance, applies his

judicial mind to determine whether the offence is triable by him or is required to be sent to the Court of Session, the exercise constitutes an “inquiry” within the contemplation of the Code.

Section 344 may accordingly become available during that inquiry. The importance of Mehar Khan lies not merely in recognizing a power of remand. Its greater value lies in identifying the jurisdictional condition upon which that power depends. Section 344 is not section 167 continuing indefinitely under another statutory number. It operates in its own field and upon satisfaction of its own conditions. Still greater relevance is the Supreme Court's observation that where neither a complete nor an incomplete challan has been submitted, the Magistrate cannot simply be assumed to have taken cognizance under section 190(1)(b); on that footing, the power under section 344(1) would not become available. Thus, the first question is never merely whether section 344 contains a power of remand. The logically anterior question is whether the proceedings have

reached the stage at which that provision can lawfully operate.

9.That proposition becomes unmistakable when the text of section 344 Cr.P.C. is examined:

“344. Power to postpone or adjourn proceedings. —(1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Remand. —Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.

(2)Every order made under this section by a Court other than a High Court shall be in writing signed by the presiding Judge or Magistrate. Explanation. —Reasonable cause for remand. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand.”

Section 167 employs: “fifteen days in the whole.” Section 344 employs: “fifteen days at a time.” The difference is neither accidental nor merely verbal. It reflects the different statutory

fields occupied by the provisions. Section 167 governs detention at the investigative stage under the special regime created where investigation cannot be completed within twenty-four hours. Section 344 concerns postponement or adjournment of an inquiry or trial and permits remand by judicial warrant where the statutory conditions exist. To permit section 344 to operate simply as a continuation of police custody after section 167 has been exhausted would deprive the expression “in the whole” of practical meaning. A limitation which can be escaped merely by changing the statutory caption is no limitation at all. Section 344 cannot therefore be converted into a procedural route around section 167. Nor does the position change, because an order avoids the expression “police remand” and instead employs “entrustment”, “handover”, “custody with the Investigating Officer” or some equivalent expression. The legal character of custody is determined by its substance, not by the description assigned to it. If the accused is

physically returned to the investigating police for purposes of investigation, the Court must confront the legality of that custody as what it actually is.

10.Comparative jurisprudence is

useful at this stage because the problem is not new to the common-law history of criminal procedure. In Central Bureau of Investigation v.

Anupam J. Kulkarni, AIR 1992 SC 1768 = (1992) 3 SCC 141, the Supreme Court of India, while examining the successor provisions of the Indian Code, traced the legislative history of section 167 to the Code of Criminal Procedure, 1898. It noticed the earlier practice whereby, after exhaustion of the period under section 167, an incomplete charge-sheet would sometimes be filed, and further remand sought under section

344.The legislative history described the legality of that practice as doubtful. The Court emphasized the need to preserve the distinction between investigative police custody and custody at the subsequent judicial stage.

The importance of Anupam J. Kulkarni for the present case does not lie in importing into Pakistan the periods subsequently enacted by the Indian legislature. Those provisions have developed differently. Its importance lies in the historical mischief it identifies: a statutory limitation upon investigative custody cannot be rendered illusory by transferring substantially the same custody to another procedural provision.

Likewise, in Natabar Parida Bisnu Charan Parida v. State of Orissa, AIR 1975 SC 1465 = (1975) 2 SCC 220, the Supreme Court of India examined remand against the background of the old Code and emphasized, in substance, that detention requires statutory authority. A Court does not possess a free-standing reservoir of power to incarcerate merely because continued detention may appear convenient to the investigation or prosecution. These decisions are persuasive rather than controlling. The controlling framework remains the Pakistani Code and the exposition of our Supreme Court

in Mehar Khan. Their comparative value lies in demonstrating that the distinction between investigative custody and judicial remand is not an exercise in technical classification; it is a safeguard against the indefinite continuation of coercive investigative power.

11.A qualification is nevertheless necessary, lest the principle be carried further than the statute permits. The expiry of the period contemplated by section 167 does not mean that an accused must thereafter, in every conceivable circumstance, immediately be released irrespective of other provisions of law. The propositions are different. What expires is the authority available under section 167. If the proceedings have lawfully moved to another stage and another provision independently authorizes judicial custody, detention may continue according to that provision. This is precisely where Mehar Khan supplies the necessary doctrinal balance. Once the matter has reached the jurisdictional stage contemplated by

sections 190 and 344, the latter may sustain judicial custody in accordance with its terms.

But the existence of that judicial power does not refill the exhausted reservoir of police custody under section 167. The distinction protects both the legitimate needs of criminal justice and the liberty of the accused. It does not deprive a competent Court of judicial custody which the law independently authorizes. It merely prevents the investigating agency from perpetuating its own physical custody by borrowing the language of a provision designed for another stage. The line is therefore not between detention and freedom in the abstract. It is between custody authorized by the law applicable to the stage actually reached and custody for which no lawful authority remains.

12.At this point the statutory question necessarily enters the constitutional domain of personal liberty. Personal liberty is not a concession from the State, held at the sufferance of investigative convenience. The Constitution

protects it precisely because the coercive power of the State is formidable. A person may be deprived of liberty only in accordance with law.

The production of an arrested person before a Magistrate is one of the practical expressions of that guarantee. Its purpose is not satisfied by physical appearance alone. It exists so that executive coercion must encounter an independent judicial mind before it may lawfully continue. The phrase “in accordance with law” consequently demands more than a warrant or order carrying a judicial signature. The order itself must be supported by jurisdiction. If the statute does not authorize the particular custody ordered, judicial form cannot cure substantive want of authority. A judicial order derives its legitimacy from jurisdiction; jurisdiction does not derive its existence from the making of an order. The Magistrate must therefore ask not simply whether the police desire further custody, but whether the law permits it; not simply whether investigation remains unfinished, but what was done during the custody already

granted; not merely how long detention is requested, but whether the statutory clock governing that species of detention has already stopped. Only when these questions have been answered may discretion properly begin. The independence of the Magistracy is nowhere more practically important than at this stage.

The judicial officer is not required to conduct the investigation; equally, he cannot abdicate responsibility for the legality of the custody by which investigation is facilitated. The former belongs to the police. The latter belongs to the Court.

13.Tested against these principles, the order dated 05.03.2026 cannot be sustained insofar as it purported to “entrust” Nasir to the SHO/Investigating Officer after the permissible police-remand jurisdiction had been exhausted.

The defect was jurisdictional, not linguistic. Its practical consequence was to expose the accused once again to the physical control of the investigating police notwithstanding exhaustion

of the statutory authority for that species of custody. Describing it as “entrustment” rather than “police remand” did not alter its character.

The Code does not contemplate an intermediate species of custody created by judicial vocabulary. There is police custody where the law authorizes police custody. There is judicial custody where the law authorizes judicial custody. There is no third or twilight category by which an accused may be transferred from judicial control into the hands of the investigating agency after the legal authority for police custody has expired. The contrast between sections 167 and 344 places the matter beyond semantic debate. Parliament itself chose “fifteen days in the whole” for the former and “fifteen days at a time” for the latter. Courts must give effect to that distinction, not dissolve it. Jurisdiction is derived from law, and once the statutory source of a particular custody is exhausted, neither necessity nor nomenclature can restore it.

14.The failure to submit the report contemplated by section 173 must again be considered in that light. The Code had already supplied the lawful answer to incomplete investigation. Where investigation could not be completed within fourteen days from registration of the FIR, the statutory course was submission of an interim report within the succeeding three days. The investigating agency was therefore not confronted with a choice between completing the entire investigation and retaining the accused in police custody indefinitely. Parliament had expressly provided a third and lawful course: bring the investigation as far as it has progressed before the judicial forum through the interim report and permit the criminal process thereafter to proceed according to law. The investigating agency cannot omit the statutory act by which proceedings are brought into their proper judicial setting and then invoke that omission as a reason for obtaining a custody which would otherwise be unavailable. Such reasoning would permit non-compliance to

enlarge the authority of the non-complying officer. Default cannot confer jurisdiction upon the defaulter. This brings the matter back to the institutional responsibility of the Judicial Magistracy. A Magistrate cannot remain a passive observer while statutory periods expire and an arrested person continues to move between police station, courtroom and lock-up.

Mechanical remand is incompatible with judicial remand. Section 167 requires reasons where police custody is authorized. Section 344 requires an order in writing stating the reasons for postponement, adjournment and consequent remand. These are not drafting formalities. They reflect Parliament's insistence that deprivation of liberty be the product of a judicial decision rather than an administrative reflex.

The Magistrate must examine the relevant police record and diary; ascertain what investigative steps were actually taken during the preceding remand; consider the grounds upon which further custody is sought; hear any objection made by the accused; identify the

precise species of custody requested; and, before all else, satisfy himself that the provision invoked actually confers the jurisdiction claimed. An order which merely records “remanded as requested” may be brief, but brevity cannot become a substitute for reasoning. The Magistrate is not a mere transmitting agency between the investigating officer and the prison authorities. He is an independent judicial authority upon whose scrutiny the legality of continued detention depends. The principle underlying Mehar Khan is entirely consonant with that understanding.

The Magistrate's jurisdiction at the post- investigative stage arises from the legal character of the proceedings before him and the application of judicial mind contemplated by the Code; it does not arise from the fact that the investigating agency desires further time.

15.The statutory scheme imposes

duties not only upon the Magistrate but equally upon the investigating officer. The latter is

entrusted with substantial coercive powers because he is simultaneously entrusted with public duties. The consequences of culpable dereliction are reflected in section 166 of the Pakistan Penal Code, 1860, which reads:

“166. Public servant disobeying law, with intent to cause injury to any person. — (1) Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.

(2)Whoever being a public servant entrusted with the investigation of a case fails to carry out the investigation properly or diligently or fails to pursue the case in any court of law properly and in breach of his duties shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both.

Subsection (2) is particularly germane.

Investigation is not merely an authority enjoyed by the police; it is a public duty required to be performed properly and diligently. Powers of arrest, interrogation and applications for remand cannot be separated from the corresponding statutory obligation to investigate with diligence

and to bring the result before the competent Court in accordance with law. An investigating officer cannot seek the coercive assistance of a Court while treating the duties which condition that assistance as optional. That said, penal liability must never itself become mechanical. A mere lapse of time does not, without more, establish an offence under section 166 P.P.C.

Before criminal consequences are invoked, the ingredients of the relevant subsection must be satisfied, the nature and circumstances of the default considered, and any explanation furnished by the officer evaluated according to law. The object is not to substitute mechanical prosecution for mechanical remand. It is to insist upon legal responsibility throughout the criminal process.

16.Reverting finally to the immediate facts, an important subsequent development occurred. As reported by the learned District & Sessions Judge, Torghar at Oghi, accused Nasir son of Banaras was produced along with the

complete challan on 06.03.2026 and was thereafter placed in lawful judicial custody awaiting trial. That event altered the immediate legal position. The complete challan was now before the competent Court; the present custody of the accused rested upon judicial authority appropriate to the stage reached; and the immediate grievance regarding his subsisting detention consequently ceased to survive. To that extent, the Criminal Revision became infructuous.

The reasoning in Mehar Khan v. Yaqub Khan and another (1981 SCMR 267) is again instructive. The Supreme Court itself noticed the subsequent submission of the challan and the consequent change in the jurisdictional position.

The principle is straightforward: submission of the challan may alter the legal basis upon which custody can thereafter be considered. A subsequent event may change the legal position prospectively; it cannot rewrite the jurisdictional facts which existed when an earlier order was made. There is a material distinction between

saying that an unlawful state of affairs has come to an end and holding that it never existed. The complete challan submitted on 06.03.2026 could provide the foundation for what lawfully followed on 06.03.2026. It could not travel backwards in time and furnish jurisdiction for the order made on 05.03.2026. A subsequent lawful act cannot retrospectively confer legality upon an earlier exercise of jurisdiction that was wanting in law. Thus, although the immediate controversy concerning the present custody of Nasir has become infructuous, the legality of the order which occasioned these proceedings remains capable, and deserving, of judicial determination.

17.The matter cannot appropriately conclude with correction of the individual order alone. The circumstances which brought the case before this Court disclose a practice capable of repetition. An error affecting personal liberty, if left institutionally unaddressed, may multiply silently from one remand proceeding to

another. The supervisory responsibility of this Court therefore requires that the principles emerging from the case be translated into practical safeguards. Accordingly, the following directions shall be observed throughout the Province:

i. Under no nomenclature whatsoever—including “entrustment”, “physical handover”, “custody with the Investigating Officer”, or any expression producing substantially the same legal result—shall an accused be returned to police custody after exhaustion of the period for which such custody may lawfully be authorized under section 167 Cr.P.C. Section 344, or any other provision, shall not be used as a colourable means of restoring an exhausted power of police remand.

ii. Judicial Magistrates shall scrupulously maintain the distinction drawn by the Code between the cumulative limitation under section 167— “fifteen days in the whole”—and the judicial remand contemplated by section 344— “fifteen days at a time.”

iii. Whenever police custody is sought under section 167, the Magistrate shall examine the relevant diary entries and material, satisfy himself independently as to the necessity and legality of such custody, and record the reasons required by law. A previous grant of remand shall not create a presumption in favour of its continuation.

iv. Where investigation is not completed within fourteen days

from recording of the FIR, the statutory requirement contained in the proviso to section 173(1), including submission of the interim report within the period prescribed therein, shall be enforced. Failure of the investigating agency to perform that obligation shall not become a basis for unauthorized police custody.

v. Whenever section 344 is invoked, the Magistrate shall first determine whether the proceedings have reached the jurisdictional stage at which the provision is capable of lawful operation; whether an inquiry or trial exists which is being postponed or adjourned; whether reasonable cause contemplated by the section is present; and whether the custody sought is lawful judicial custody rather than a disguised continuation of police custody.

vi. The principles enunciated by the Hon'ble Supreme Court in Mehar Khan v. Yaqub Khan and another (1981 SCMR 267) shall be kept in view, particularly the relationship between the police report, cognizance under section 190, the existence of an inquiry and the jurisdiction exercisable under section 344.

vii. Where an investigating officer fails, without lawful or satisfactory explanation, to perform the duties imposed upon him by the Code, his explanation shall be called. If the established facts satisfy the ingredients of section 166(1) or 166(2) P.P.C., proceedings may be taken strictly in accordance with law. Persistent or culpable professional default may additionally be brought to the notice of the competent police and prosecution authorities for appropriate departmental action.

viii. Every Judicial Magistrate shall maintain an effective mechanism/register for monitoring FIRs within his or her territorial jurisdiction so that the statutory period relevant to submission of reports under section 173 does not pass unnoticed. Consistent with the principle noticed in Allah Bux v. SHO (2011 PCr.LJ 1282), such monitoring is not an intrusion into the investigative domain. Its purpose is to ensure judicial vigilance where investigative delay begins to bear upon the liberty of an accused and the lawful jurisdiction of the Court.

18.Consequently, for the reasons recorded above, the present Criminal Revision is dismissed as infructuous, the complete challan having subsequently been submitted and accused Nasir son of Banaras having thereafter been placed in lawful judicial custody.

Nevertheless, subsequent legality cannot retrospectively cure anterior want of jurisdiction.

The order dated 05.03.2026, passed by the learned Judicial Magistrate, insofar as it purported to entrust the custody of accused Nasir son of Banaras to the SHO/Investigating Officer, is accordingly declared illegal, without jurisdiction and of no legal effect. The directions contained in paragraph 17 above shall be

observed in letter and spirit. The Additional Registrar (Judicial) of this Court shall circulate copies of this judgment to all District & Sessions Judges, Senior Civil Judges and Judicial Magistrates throughout the Province of Khyber Pakhtunkhwa, as well as to the Inspector General of Police, Khyber Pakhtunkhwa, and the District Public Prosecutors of all districts, for information, guidance and strict compliance.

JUDGE

Announced.

Tariq Jan (SB) Mr. Justice Sahibzada Asadullah, HJ.