Malik Hakim Khan vs State

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH

JUDICIAL DEPARTMENT

Cr. M Q No. 66-A of 2014

JUDGMENT

Date of hearing.....................22/12/2014............................................. Petitioner...(Malik Hakim Khan) by Mr. Shad Muhammad Khan, Advocate.............

Respondent (The State etc) by M/s Raja Zubair,DAG, Muhammad Naseem Khan Swati and Sultan Ahmad Jamshed, Advocates......

MUHAMMAD YOUNIS THAHEEM, J:-

Malik Hakim Khan, petitioner, through instant petition under Section 561-A Cr.P.C, seeks quashment of orders dated 26.10.2014 and 31.10.2014 passed by Judicial Magistrate-I, Balakot, MOD at Mansehra and Additional Sessions Judge-IV, Mansehra, respectively, whereby, the former refused to grant police custody and the latter dismissed the revision petition filed by the petitioner against the refusal of police custody, in case FIR No. 206 for offences chargeable under section 365 PPC

registered on 21.08.2014 in Police Station Khaki, Mansehra.

2.The brief and essential facts leading to the present petition are that the present petitioner submitted an application to the District Police Officer, Mansehra, alleging therein that his son Asad Shahzad, aged about 27/28 years was jointly conducting property business with Haider etc, respondent No.5 and he used to remain with them.

However, his son did not come back home since 22.04.2014 and his whereabouts are not known, albeit, they have received mobile calls from his Mobile number 0313-5654093, whereby, they were informed that Asad Shahzad was in their custody. The complainant contacted the business partners of his son i.e. Zahoor Shah son of Manzoor Shah and Haider Khan, son of Pir Muhammad Khan, respondents No.4 and 5, who despite having knowledge about his whereabouts were reluctant to disclose the same. The complainant alleged that legal action may be taken against Haider Khan and Zahoor Shah, business

partners of son, who have kept him somewhere, for their covert object. On this application, the local police registered the case against respondents No.4 and 5 under Section 365 PPC.

3.The respondents applied for ad-interim pre-arrest bail and after the rejection of their pre- arrest bail, they were arrested by the local police.

Both the respondents were produced before the learned Judicial Magistrate, respondent No.1 by the local police seeking police remand, which was refused and the respondents were remanded to judicial custody vide order dated 26.10.2014.

4.Feeling aggrieved, the present petitioner, filed revision petition against the order dated 26.10.2014 before the learned Additional Sessions Judg-IV, Mansehra, which was also dismissed by respondent No.2 vide order dated 31.10.2014.

Hence, this quashment petition.

5.Learned counsel for the petitioner vehemently contended that the accused- respondents have been directly charged in the FIR and there was last seen evidence that accused

Haider Khan had taken the abductee Asad Shahzad; that both the accused-respondents remained in touch on mobile phone of the abductee and the prosecution has collected mobile call data as evidence; that the police remand of the respondents was necessary to get recovered the abductee; that the learned Courts below have wrongly and illegally refused the police custody of the respondents. Learned counsel for the petitioner placed reliance on 2004 YLR 447.

6.On the other hand, learned counsel for the respondents argued that the complainant was not legally competent to challenge the order of Magistrate refusing police custody of the accused;

that only the Head of District Prosecution Branch would be the competent to apply for police remand; that the learned Judicial Magistrate was legally justified to refuse the police remand, in view of the ground mentioned in the impugned order dated 14.10.2014; and that since there was absolutely no incriminating evidence against the respondents connecting them with the commission

of alleged offence, therefore, the prosecution did not opt to request for police custody. In support of their arguments, learned counsel for the respondents placed reliance on The State Vs.

Wazir Khan (PLD 1968 Peshawar 140), Senator Asif Ali Zardari Vs. The State (PLJ 2000 Karachi 10), Ghulam Sarwar and another Vs. The State (PLJ 1984 Cr.C (Lahore) 1)), Muhammad Hayat and another Vs. The State (1969 P.Cr.L.J 786), Misbah-ul-Hasan Vs. The State (2005 P.Cr.L.J 1709), Riaz-ul-Haq and another Vs. The State (2005 YLR 805) and Abul Hassan Vs. The State and others (1969 SCMR

6.Valuable arguments of learned counsel for the parties heard and available record of the case thoroughly considered.

7.Section 61 of Cr.P.C envisages that a police officer cannot detain a person in his custody for more than twenty-four hours in the absence of a specific order of a Magistrate under Section 167 Cr.P.C, which enables a Magistrate to pass an

order extending the detention of an accused for a term not exceeding fifteen days and shall record his reasons for doing so. Simultaneously, Section 344 Cr.P.C envisages that no Magistrate shall remand an accused person to custody for a term exceeding fifteen days at a time. It further provides that if sufficient evidence has been obtained to raise a suspicion that the accused might have committed an offence and it appears likely that further evidence may be obtained by a remand this is reasonable cause for remand.

8.The crucial legal questions require to be determined by this Court are, firstly, as to whether the complainant under the aforementioned procedural law is authorized to request or apply for police remand of the accused-respondents and file revision petition, after the refusal of said remand to the investigating agency by the Magistrate under Section 167 Cr.P.C in the light of evidence collected by the police or the District Prosecution Branch alone was competent to apply for such remand, and, secondly, whether the

evidence collected by the prosecution against the present respondents, was sufficient to justify their further police remand.

9.So far as the first question is concerned, it is abundantly clear from the relevant provisions provided in the Criminal Procedure Code, 1898, that it is the obligation of the local police conducting investigation of the case could make request for police remand of accused-respondents, after expiry of the stipulated period of twenty-four hours of the custody of an accused. In the present case, since the police remand was refused to the police and the accused-respondents were remanded to the judicial lockup by the Magistrate, to seek further custody under section 167 CR.P.C, it was only the District Public Prosecutor, Head of the Prosecution Branch of the District, defined in Section 4 (1)(t) Cr.P.C and appointed under Section 492 Cr.P.C by the Provincial Government, would competent to apply on behalf of the State, for the police custody of accused-respondents. A private pleader instructed by a private party will

not be permitted to conduct the prosecution, as has been done in the present case. Similarly, the Advocate General or any other person conducting prosecution on behalf of the State would be competent to apply for police remand of an accused person.

10.In Asif Zardari’s case (PLJ 2000 Karachi 10), though it pertains to a Special Law but the legal ratio dilated upon in the case, relates to the issue involved in the present case. In the said case, it was held that public prosecutor alone would be competent to apply for remand and not DSP to apply for police remand. It has been observed that:-

“The contention raised by the learned Advocate General that a Deputy Superintendent of Police is a public prosecutor in view of rule 27.4 of Police Rules is without substance and untenable in law. It is well settled that rules are subordinate/subject to the Act. If any provision or Rule is inconsistent with the provision of

the Act then the provision of the Act is to be followed and rule is to be ignored. Apart from that under the special statute only public prosecutor under the Act is competent to obtain or apply for remand. The definition of public prosecutor has not been given in the Act. It is well settled that when on a particular legal point/aspect a special statute is silent, then the provisions of general law would prevail............PLD 1950 Lahore 111 was referred.........................

19.Even the application for grant of remand in police custody of applicant was not moved by a public prosecutor or a law officer as envisaged in sub-section (5) of Section 19 of the Act, it was preferred by DSP, CIA, which was not the requirement of law.”

While, in the instant case, complainant / petitioner himself through an advocate has challenged the order of refusal of police remand of the respondents by the Magistrate through a Revision

Petition before the learned Additional Sessions Judge, who is not competent to do so.

10.Similarly, perusal of record would reveal that the material collected by the prosecution so far in the present case and placed before the Magistrate at the time of seeking police remand of the concerned respondents was not sufficient to create suspicion regarding involvement of the said respondents in the commission of the offence. The so-called abductee Asad Shahzad, as observed by the learned Additional Sessions Judge, Abbottabad in the impugned order dated 31.10.2014, remained in contact with his brothers. Thus, the order of the learned Magistrate refusing the police custody to the police, in the peculiar facts and circumstances of the present case, was legally justified.

11.Accordingly, for the reasons mentioned hereinabove, no case for interference by this Court in the impugned orders in the exercise of its inherent jurisdiction under Section 561-Cr.P.C is made out. Hence, the present quashment petition

being not maintainable and devoid of merits is dismissed.

Announced. JUDGE Dt.22.12.2014