PERVAIZ ELAHI VS THE STATE

FIR NO 06/23 U/S 5(2)47 PCA r/w 409/420/468/471 PPC

P.S ACE Gujranwala
Relevant Laws
Punjab Anti-Corruption Establishment Ordinance 1961
Punjab Anti-Corruption Establishment Rules 2014
Pakistan Criminal Law Amendment Act 1958

Police Rules 1934

Criminal Procedure Code 1898

PREPOSITION: whether senior civil judge/ judicial magistrate section 30 has the
power to grant remand u/s 167 Cr.PC or discharge /release of an accused who will
face trial in the Special Anti-corruption court established under the Pakistan
Criminal Law Amendment Act, 1958?
Scanning the relevant laws and rules and the court order, it is clear that no special
provision is available in the Pakistan Criminal Law Amendment Act 1958 which relates
to granting of remand and discharge. When special law is silent on that point then
general law is applicable as per various decisions of Hon'ble higher courts. According to
the ACE Rules 2014, the establishment is duty-bound to follow the procedure laid down
in Punjab police rules r/w CrPC.1898.Furthermore, in the province of Punjab, powers
regarding granting of remand, bail superdari matters, etc. have been delegated to the
senior civil judge under the instructions of the Hon'ble Lahore High Court Lahore.
The relevant rule is under consideration.
Rule 14. Application of the Punjab Police Rules.– The Establishment shall, as far as
may be, follow the provisions of the Punjab Police Rules for the time being in force for
purposes of inquiry and investigation of offenses specified in the Schedule.
Furthermore, Police Rule 25(56) authorizes the police office/ACE officer to seek
physical remand from the competent court under 167CrPC.
Section 167 CrPC gives the power to the nearest magistrate (Alaqa magistrate Now JM-
Sec30) to give physical remand of an accused person to the police when the
investigation has not been completed within 24 hours vide sec 61 of CRPC.
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 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.
[Explanation]
(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)
(5)
(6
(7)
PREPOSITION: whether Punjab Anti-corruption Rules 2014 provides any
mechanism for the arrest of the chief secretary or Chief Minister of the province:
Rule 7 deals with the arrests of Public servants however it is silent about the
arrest of the chief secretary and Chief Minister. Although the chief secretary is a
public servant. Besides, these rules do not provide any exception to the holder of
public office. These officeholders have been treated as citizens of Pakistan under
PCA1947. It is further pointed out that in 2018 the Hon'ble Apex court suspended
this rule & and rule 5(3) while hearing HRC no25598-G/2017. No further order is
available.
Rule -7 is as under for consideration:
7. Arrest.– (1) Subject to sub-rule (2), the Establishment may, if necessary in the
public interest, arrest an accused public servant but no public servant in BPS-18
and above shall be arrested without prior permission in writing of the authority
mentioned below:
Serial Category of Public Servants Authority
No
a Subject to entry at Sr # (b), officers in BPS-18 and 19. Additional Chief
Secretary
b Secretaries to the Government, Heads of Attached Chief Secretary
Departments, Commissioners, District Coordination
Officers and officers in BPS-20 and above.

The sanction for prosecution which was the prerequisite of the special court for
taking cognizance has already been declared void vide judgments
PLD 1989 FSC 84 [ ZAFAR AWAN VS FEDERATION OF PAKISTAN]
PLD 1992 SC 72 [ ZAFAR AWAN VS FEDERATION OF PAKISTAN]
PLD 1995 SC 19 [ ZAFAR AWAN VS FEDERATION OF PAKISTAN]