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Writ Petition No. 3625 of 2015.

Form No.HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
RAWALPINDI BENCH RAWALPINDI
JUDICIAL DEPARTMENT
Writ Petition No. 3625 of 2015.
Raja Waheed Mehfooz. vs . Special Judge, ATC-II & 2 others.

Sr. No. of order/ Date of order/ Order with Signature of Judge, and that of parties or counsel, where necessary.
proceedings proceedings

21-12-2015. Mr. Mohammad Ilyas Siddiqi, Advocate for the petitioner.

Syed Raza Abbas Naqvi, Assistant Advocate-General Punjab
with Allah Yar, Inspector-SHO and Abdul Majeed S.I.

The petitioners alongwith others, after having been implicated

in criminal case registered through FIR No.1038, dated 10.11.2015,
under Sections, 186, 224, 225, 324, 341, 353, 148, 149 PPC, read with
Section 7 of Anti-Terrorism Act, 1997, at Police Station, Sadiq Abad,
District Rawalpindi, were arrested by the local police on the event of
refusal of their pre-arrest bail by the learned Judge, ATC-II,
Rawalpindi, on 14.12.2015, and after completion of twenty-four hours
with the police, the accused persons, namely, Raja Waheed Mehfooz,
Raja Nasir Mehfooz and Raja Yasir Khan, were produced before the
learned Judge, ATC-II, Rawalpindi, with a request of having their
physical remand. The learned Judge by means of following two lines
order dated 15.12.2015, granted 15-days physical remand of the
accused persons to the police:-

“Court is of the view that 15 days physical remand is

justified. Application is, therefore, allowed. The
accused are ordered to be produced on 30.12.2015.”

2. The petitioner, through the present Constitutional petition, has

called in question the legality of the above-referred order of the
learned Judge, ATC-II, Rawalpindi, by maintaining that the same is in
complete negation of the settled principles provided for the Courts
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Writ Petition No. 3625 of 2015.

granting physical remand of the accused persons involved in a

criminal case. Further contended that, Ghulam Khan, the alleged
injured person in the offence reported through the present criminal
case, got recorded his statement under Section 164 Cr.P.C., whereby
none of the accused persons, who were handed over to the police on
physical remand by the learned Judge, were implicated by the said
injured person. Also submitted that, Mst. Abida, the other person, who
allegedly received injuries as a result of alleged firing by the accused
persons, also disowned the allegations against the petitioner and other
accused persons. The said lady also appeared before this Court in
confirmation of her such stated stance.

3. The principles provided in Section 167 Cr.P.C are, in fact, the

guidelines for the Court before whom accused persons in criminal
cases, are produced for physical remand. In addition to other
requirements, it is a mandatory requirement within the view of
Section 167(3) Cr.P.C that, the court authorizing under this section
detention in the custody of the police shall record his reasons for so
doing.

4. The effect of Section 167 Cr.P.C has been dealt with earlier by
the Courts in Sub-Continent. The pre-partition view, as was taken by
the Lahore High Court, in case of Khairati Ram reported as (A.I.R
1931 Lahore 476) was to the following effect:

“When the accused is produced before a Magistrate,

the latter is empowered under S. 167 to direct the
detention of the former “for a term not exceeding
fifteen days in the whole.” It will be observed that this
section comes into operation only if the investigation
cannot be completed within the period of twenty-four
hours fixed by S.61, and that, if the Magistrate
authorized detention in the custody of the police, he is
enjoined to record his reasons for so doing.”

After partition, again this Court in case of Rashid vs. The State
and 2 others (PLD 1970 Lahore 389), while dealing with the issue of
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Writ Petition No. 3625 of 2015.

remand of accused has held that, the remand is not to be granted

mechanically without application of mind, rather it is to be granted
only in case of real necessity and also that the period of such remand
is to be fixed with due regard to reasonable requirements.

From Peshawar jurisdiction, such question has been dealt with

in case of Hafeezur Rehman vs. The State (PLD 1993 Peshawar 252)
by holding that, accused’s detention for want of competent remand
order would, no doubt, amount to illegal confinement and the same
can be a valid ground to release him on bail and one need not go to the
extent to hold that there shall not be left any option with the Court to
release the accused on bail even if held in detention under an invalid
remand order.

A Division Bench in Karachi High Court in case Senator Asif

Ali Zardari vs. The State (NLR 2000 Criminal 281) even in ATA
matter has set-aside a remand order in criminal revisional jurisdiction
of the High Court by holding the remand order as illegal and violative
to the mandatory requirements of Section 167(3) Cr.P.C and Section
19(4) of Anti-Terrorism Act, 1997.

5. The supreme law i.e. The Constitution of the Islamic Republic

of Pakistan, 1973, which jealously guarded the respect of a citizen
provides through Article 4 thereof that, to enjoy the protection of law
and to be treated in accordance with law is the inalienable right of
every citizen and no action detrimental to the life, liberty, body,
reputation or property of any person shall be taken, except in
accordance with law. Part-II of the Constitution, which provides
fundamental rights of the citizens, protects every person in view of
Article 9 thereof as against any deprivation of life or liberty save in
accordance with law.

6. When the petition was placed before the Bench and the factual
background was disclosed by the learned counsel for the petitioner,
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the police was directed to produce the persons on remand alongwith

record.

On appearance, Inspector-SHO and the Investigating Officer,

both, have admitted that the fact of a statement of Ghulam Khan, the
alleged injured, got recorded under Section 164 Cr.P.C by a
competent Magistrate, was in the notice of police even, when the
accused persons were produced before the learned Judge, ATC-II,
Rawalpindi, for the purposes of obtaining the physical remand.

7. We have noted with concern that, the order passed by the

learned Judge, ATC-II, Rawalpindi, on 15.12.2015, does not reflect
the fact that before handing over the accused persons on physical
remand to the police, either the police record was consulted by the
learned Judge or even the submissions made on behalf of the accused
persons, who were shown to have been represented through their
learned counsel at the relevant time, were taken into consideration.
The learned Judge, ATC-II, Rawalpindi (Mr. Asif Majeed Awan),
who granted physical remand of the accused persons to the police,
was also required to see us in the Chambers, who, on appearance,
when asked as to how without giving any reasons in the impugned
order, such important facts, as indicated above, were ignored by him,
while curtailing the liberty of the citizens of Pakistan, he simply
responded that he was not exercising his powers within the meaning
of Section 167 Cr.P.C, rather Section 21-E of Anti-Terrorism Act,
1997, provides him powers to allow physical remand of the persons,
accused of special offences.

The learned Judge, ATC-II, Rawalpindi, is badly mistaken in

understanding that, while exercising his powers under Section 21-E of
Anti-Terrorism Act, 1997, he is not required to give reasons for the
order granting physical remand of the accused persons and his such
interpretation is completely in violation of the provisions of sub-
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Writ Petition No. 3625 of 2015.

section (3) of Section 21-E of the Act, which provides that, the
Special Court under Anti-Terrorism Act, 1997, shall be deemed to be
a Magistrate for purposes of Section sub-section (1) of 21-E of the
Act. As such, the learned Special Court under Anti-Terrorism Act,
while dealing with the matters of remand of the accused persons, is
equally responsible to observe the provisions of Section 167(3)
Cr.P.C., and the remand order, if passed without assigning any
reasons, would be a nullity in the eye of law, and would be termed
nothing, but as an invalid remand order.

8. In such like situation, when the fundamental rights guaranteed

under the Constitution, are shown to have been violated, this Court
would not hesitate to exercise its Constitutional jurisdiction and
technicalities of availability of any other remedy available under the
law, would not stand in the way of its inherent jurisdiction.

9. The writ petition was allowed by this Court on 21.12.2015 by

means of short order, when the accused persons in custody of police
on physical remand on the strength of an invalid remand order dated
15.12.2015, which was challenged and subsequently was set-aside, the
accused persons, namely, Raja Waheed Mehfooz, Raja Nasir Mehfooz
and Raja Yasir Khan, were granted post-arrest interim protective bail
in case FIR No.1038 of 2015, in order to enable them to approach the
competent forum for their bail by moving proper application.

The above are the reasons of said short order.

(Raja Shahid Mehmood Abbasi) (Ibad-ur-Rehman Lodhi)

Judge Judge

Approved for reporting.

Judge Judge

*M.AYYUB*