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Criminal Revision No. 1206 of 1964/Criminal Miscellaneous No. 2819 of 1960, decided on 8th February 1965.

---------Ss. 4 (1) (s), 60, 61 & 167‑Under‑trial prisoner can be kept in police custody at "police- station" only‑Detention of person in place other than one notified as "police‑station" within meaning of S. 4 (1) (s) ‑ Illegal‑ [Quaere]: Whether confinement of under‑trial prisoner in un-autho rised place amounts to offence.

Queen v. Bohary Singh and others (1867) 7 S W R 3 (Cr.) ref.

Ss. 61 & 167‑Remand of under‑trial prisoner‑Magistrate himself proceeding to place of confinement for purpose instead of prisoner being brought to hint Practice illegal and in violation of Fundamental Right No. 2, Art. 6, Constitution of Pakistan (1962)-Constitution of Pakistan (1962), Art. 6, Fundamental Right No. 2(2).

Nemo for the State.

S. Nasir‑ud‑Din Shah, A.‑G. with Sh. Shaukat Ali for Respondent.

Date of hearing: 11th January 1965.

‑‑On the basis of an occurrence alleged to have taken place on the 21st of November 1964, at 5 a.m., on Kashmir Road, Lahore, a case was registered at Police Station Civil Lines, Lahore, on the same day at 9‑40 a.m. One Sikandar Hayat was arrested by the Civil Lines Police on the same day at 12 noon and was then sent to the C. I. A. Office, Chune Mandi. On the 22nd of November 1964 the learned Additional District Magistrate went to the C. I. A. Office and remanded the accused to police custody till the 2nd of December 1964.

2. On the 21st of November 1964 the accused applied for bail but his bail, application was dismissed by the learned Additional Sessions Judge on the 23rd of November 1964. He thereupon, came up to this Court against the above order and in the course of the hearing of the petition on the 25th of November 1964 it transpired that the accused was being detained in the C. I. A. Office, Chune Mandi, Lahore, since his arrest. I was of the view that the C. I. A. Office, where the accused had been detained all along, was not a police station within the meaning of section 4(l)(s) of the Code of Criminal Procedure. I was further ‑of the opinion that a police lock‑up can be located only in a police station and, therefore, the detention of the accused in the C. I. A. Office was a detention in an unauthorised place. I, therefore, released Sikandar Hayat on bail and issued notice to Mr. Muhammad Yusuf D. S. P. Incharge C. I. A., Lahore to show cause why he should not be proceeded against for having detained an under‑trial prisoner in an unauthorised place. At the same time, I referred the matter to a Division Bench.

3. My learned brother Ortcheson and I have heard the arguments of the learned counsel for the parties. No notification has been placed before us showing that the C. I. A. Office, Chune Mandi, Lahore, has been notified as a police station within the meaning of section 4(1)(s) of the Code of Criminal Procedure. It was conceded that a police lock‑up can be located only in a police station or a police post notified under, section 4(1)(s) ibid. An under‑trial prisoner who is remanded to police custody can be detained in a police lock‑up only. Learned Advocate‑General, who appeared for the D. S. P., argued that remand to police custody merely means detention of the accused under police surveillance. If this argument is accepted, it may lead to anomalous results. For instance, if an investigating officer wants to show favour to an accused person he may detain the accused in the accused's own house under police surveillance. If, on the other hand, he wants to be unkind to an accused person, he may detain him in a latrine under police surveillance. Two phrases are used in the Code of Criminal Procedure, namely, "police custody" and "judicial custody". For the former the only inter pretation can be "detention in a police lock‑up" just as "judicial custody" means "detention in a judicial lock‑up". Our conclusion is supported by Queen v. Bohary Singh and others ((1867) 7 S W R 3 (Cr.)). observations at page 6 may be usefully reproduced:‑

"Moreover, even if a person be rightly arrested, it does not rest with the discretion of the Police Officer to keep the prisoner in custody where and as long as he pleases. Under no circumstances can he be detained without the special order of a Magistrate more than 24 hours. At the expiration of 24 hours, unless the special order has been obtained, the prisoner must either be discharged or sent on to the Magistrate, and any longer detention is absolutely unlawful; and though the Code is not so express upon the place as the time of confinement, still we think it is per fectly clear that it eras intended that, where a police officer arrested any person, the prisoner should not be kept in confinement in any place which the subordinate officer might select, but that he should, if possible, be sent immediately to the police station, and be placed in the custody of the officer in charge of the station, who is the person entrusted by the Act with the conduct of the enquiry."

4. In the circumstances, we have no hesitation in holding that Sikandar Hayat had been detained in an unauthorised place a Whether it amounts to an offence or not, we do not express any opinion on this point at this stage lest it may prejudice a party's case: Sikandar Hayat was not a party to the proceedings before us. If he feels aggrieved he has a right to proceed against Mr. Muhammad Yusuf, D. S. P. In the circumstances, the safest course for us is not to express any opinion on the subject.

5. In the course of the hearing of this petition, it transpired that the learned Additional District Magistrate, Lahore, had gone to the C. I. A. Office and had granted a remand. This is against the provisions of section 61 of the Code of Criminal Procedure which reads:

"No police‑officer shall detain in custody a person arrested without warrant for a longer period than under all the circum stances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed 24 hours, exclusive of the time necessary for the journeys from the place of arrest to the Magistrate's Court."

This is also contrary to the provisions of Fundamental Right No. 2 under Part II of the Constitution which provides as under:‑

"2. Safeguards as to arrest and detention.

(1) No person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty‑four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.

(3) Nothing in sub‑paragraphs (1) and (2) shall apply to any person‑

(a) who for the time being is an enemy alien; or

(b) who is arrested or detained under any law providing for preventive detention."

As Sikandar Hayat is neither an enemy alien, nor was he arrested or detained under any law providing for preventive detention, sub‑paragraph (2) of the Article applies. We hope that in future the Magistrates will strictly follow the above provisions of law.

6. Rule discharged.

K. B. A. Rule discharged.

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