1984 P Cr.

L J 2588

[Lahore]

Before Muhammad Munir Khan, J

GHULAM SARWAR and another--Petitioners

versus

THE STATE--Respondent

Criminal Miscellaneous No.814-B of 1983, decided on 22nd September, 1983.

(a) Criminal Procedure Code (V of 1898)--

---S.497 read with Penal Code (XLV of 1860), 5.302--Bail, grant of-[Murder-case)-Cause of
death of deceased being injuries caused with sharp-edged weapon while petitioner allegedly
holding Lathi and injuries other than sharp-edged injuries in no way contributing to death of
deceased--Case of petitioner, held, one of further enquiry—Petitioner allowed bail, in
circumstances.

(b) Criminal Procedure Code (V of 1898)--

---Ss.167 & 344--Remand, grant of--Principles elaborted. In cases exclusively triable by the
Court of Session, Magistrates are allowing remand and adjournments in violation of the
mandatory provisions of section 167, Cr.P.C. and section 344, Cr.P.C. Although section 167(4),
Cr.P.C. requires that the Magistrates shall forward a copy of the order of remand to the Sessions
Judge, yet they do not care to do the needful. The Magistrates authorise the detention of the
accused in police and judicial custody as a matter of course in token of co-operation with the
police. They do not realize that they are conducting judicial proceedings and that grant of remand
is also a part of judicial proceedings. The High Court rules contain the necessary instructions.
The superior Courts have also laid down principles in this behalf for the guidance of subordinate
Courts. It is- really unfortunate that the Magistrates are playing with the liberty of human beings
in routine. They think as if they are accountable to none. For their guidance, following principles
need to be followed which are in accordance with law, High Court Rules and orders and case-
law laid down by superior Courts:-

(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
strong and exceptional 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.

(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 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 accountable 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:

Malik Muhammad Din for Petitioners.

Hafiz Muhammad Saeed assisted by A.R. Tayyab for the State.

ORDER

This is an application for bail on behalf of Ghulam Sarwar and Allah Bakhsh petitioners in a case
under section 302/34, P.P.C. registered at P.S. Ahmadpur East, vide F.I.R. No.141/83, dated 4th-
June, 1983.

2. The prosecution case, in brief, is that on the eventful night, the petitioners way laid Nazu
deceai5ed, injured him 'and removed him forcibly to the house of Ghulam Sarwar petitioner
where they not only murdered him but also killed Mst. Sardaran Mai, wife of Ghulam Sarwar
petitioner.

The motive as alleged by the prosecution was that the two deceased were having illicit
connection.

3. Learned counsel for the petitioners submits that there is a delay of 24 hours in the F.I.R. that
the alleged motive and the surrounding circumstances particularly, the place of occurrence give
rise to the irresistible conclusion that the deceased having been found in objectionable condition
were killed in the house of Ghulam Sarwar petitioner under grave and sudden provocation and
the Magistrate having mechanically remanded the petitioners to judicial custody from time to
time, they are under illegal detention.

As against this, the learned counsel for the State assisted by the learned counsel for the
complainant have seriously opposed this application. They submitted that it is not a case of
unexplained delay, that Nazu deceased having been injured at a place much away from the house
of Ghulam Sarwar and then removed in injured condition to the place of occurrence, the question
of the murder of two deceased under grave and sudden provocation does not arise and that the
challan now having been submitted, the irregularity, if any, in the grant of remand stands cured.

4. I have considered the arguments submitted by the learned counsel for the parties with care.
Since the police has collected evidence to the effect that Nazu was first attacked at and injured at
place other than the house of Ghulam Sarwar and was then removed forcibly in injured condition
to the house of Ghulam Sarwar, I am of the opinion that it would be premature to discuss and
appreciate the plea of grave and sudden provocation. I, therefore, propose to consider the plea for
bail of the petitioners in the light of the allegations levelled in the F.I.R, statements recorded
under section 161, Cr.P.C. and the medical evidence. I find that 8 injuries were found on the
dead body of Nazu deceased. Injuries Nos. 1 and 2 were caused with sharp-edged weapon and
the rest of the injuries with blunt weapon. The death was due to injury No.l alone. The other
injuries which are almost bruises have not contributed towards death that Mst. Sardaran Mai
received 4 injuries. Injury No.1 with sharp-edged weapon proved fatal. The other injuries are
almost abrasions and have no contribution towards her death, that it is doubtful that the injuries
other than injury caused with sharp-edged weapon found on the person of both the deceased
were caused by enemy hands. Had Allah 6akhsh petitioner caused .injuries with blunt weapon on
the suspicion of illicit relations then the damage would, have been much more. The possibility
that the bruises/abrasions 'found on the person of both the deceased were not caused by any blunt
weapon, is also there, that no one actually saw Allah Bakhsh causing any injury to the deceased
persons in the house of Ghulam Sarwar. From the F.I.R. and the statements of Malik Muhammad
and Buddha P.Ws. recorded by the police under section 161, Cr.P.C. it transpires that the
deceased had already been done to death when these witnesses reached the house of Ghulam
Sarwar petitioner and that they only found that Ghulam Sarwar was having blood-stained
chhuri and Allah Bakhsh was holding Lathi in his hand.

5. For .'what has been found above, I am of the opinion that since the cause of death of both the
deceased are injuries caused with sharp-edged weapon and Allah Bakhsh was allegedly holding
Lathi in his hand and that the injuries .other then .tie sharp-edged injuries have not contributed to
the death of the deceased, Therefore, in the peculiar circumstances of the case, the case of Allah
Bakhsh petitioner needs further enquiry.

As for Ghulam Sarwar petitioner, I find that sufficient evidence has been collected by the police
which connects the petitioner with the murder of the deceased. Resultantly, Allah Bakhsh
petitioner is allowed, bail in the sum of Rs.10.000 with one surety in the like amount to the
satisfaction of A.C./Duty Magistrate, Ahmadpur East and the application to the extent of Ghulam
Sarwar petitioner is dismissed at this stage.

6. Before parting with judgment, I would like to add that it has come to my notice that
particularly in cases exclusively triable by the Court of Sessions Magistrates are allowing
remand and adjournments in violation of the mandatory provisions of section 167, Cr.P.C. and
section 344, Cr.P.C. Although sections 167(4), Cr.P.C. requires that the Magistrates shall
forward a copy of the order of remand to the Sessions Judge, yet they do not care to do the
needful. The Magistrates authorise the detention, of the accused in police and judicial custody as
a matter 'of course in token of co-operation with the police. They do not realize that they are
conducting judicial proceedings and that grant of remand is also a part of judicial proceedings:
The High Court rules contain the necessary instructions. The superior Courts have also laid down
principles in this behalf for the guidance of subordinate Courts. It is really unfortunate that the
Magistrates are playing with the liberty of human beings in routine. They think as if they are
accountable to none. For their guidance, 1 propose following principles which are in accordance
with law, High Court Rules and Orders and case-law laid down by superior Courts:-

(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 an
strong and exceptional 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.

(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 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 accountable 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 this Court, serious action may be taken against them. Let a copy
of this order be sent to District Magistrates/Superintendents of Police and Sessions Judges of
all the districts in Punjab. They would ensure that the instructions given by in the matter of
remand/ adjournment are fully complied with by Magistrates. The Sessions Judges concerned
would bring non-compliance of these instructions by the Magistrates to the notice of the
Registrar/ Additional Registrar of the Lahore -High Court/Benches.

S. G. D. Order accordingly