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Criminal Miscellaneous No. 5840‑H of 1969, decided on 22nd October 1969.

Ss. 167 & 344‑ Remand of accused‑Not to be granted mechanically without applica tion of mind‑To be granted only in case of real necessity and period to be fixed with due regard to reasonable requirements‑Magistrate bound to record briefly reasons for remanding accused to police custody.

A Magistrate in view of section 344, Cr. .P. Code should assign reasons for adjourning the case and remanding the accused to custody. Likewise, under section 167, Cr. P. Code, though a Magistrate is not expected to pass an elaborate order, he is certainly required to briefly indicate the reasons for remanding, a prisoner to police custody. It must be remembered that a Magistrate acting under section 167, or section 344, Cr. P. Code has to weigh evidence to decide whether the prisoner should be detained in custody or not, and this function of his, is essentially a judicial function. The remand to police or judicial custody should not be granted in a mechanical fashion, application of mind is a must, and should be granted in case of real necessity and the period should be fixed with due regard to the reasonable requirements of the case, as it involves the liberty of citizens of the State.

It has been noticed in a number of cases that the Prisoners are often remanded to the custody, in a mechanical manner under section 344, Cr. P. Code and thus the important provision of law has become nugatory. Section 344, Cr. P. Code con templates a stage prior to the submission of the charge‑sheet as time is wanted for further investigation and also regulates an enquiry or a trial in a criminal Court, therefore, if Magistrates take upon themselves, to enforce this provision in its letter and spirit, the usual complaints of inordinate delay in investigation and trial of criminal cases would evaporate.

S. 491 read with Ss. 167 & 344‑Remand of accused‑Illegality ‑ Magistrate remanding accused to custody without assigning reasons or examin ing police file‑Detention though illegal nevertheless subsequent filing of charge‑sheet and summoning of prosecution evidence thereupon, held, validated remand order.

Arshad Mobin Anwari for Petitioner.

Masood Ahmad Ghuman for the State.

Ch. Amjad Khan for the Complainant.

Date of hearing : 22nd October 1969.

This is an application by Faqir Muhammad, under section 491, Cr. P. Code for the release of Rashid, who is said to be "illegally" or "improperly" detained in custody.

2. The facts are as follows. A case under sections 302/307/ 326/149 and 148, P. P. C., was registered on the 18th of July 1969, against Rashid and thirteen others, at Police Station Muridke, District Sheikbupura, at the instance of one Sadiq Ali. This petition was moved on the grounds, firstly, that Rashid had been in detention for more than fifteen days without a charge‑sheet being filed, and that this could not be done under section 1'67, Cr. P. Code and secondly, the Magistrate was not competent to remand the accused to custody under section 344, Cr. P. Code without assigning the reasons and in the absence of the charge -sheet.

3. Learned counsel for the petitioner stoutly urged that from the evidence of Syed Muhammad Hussain, Sub‑Divisional Magistrate, Ferozewala, and Muhammad Ashraf, Station House Officer, Police Station Muridke, District Sheikhupura, it is obvious that the orders of remand were illegal, as the Magistrates gave no reasons for remanding the undertrial prisoner to judicial custody, as they were required to do, by section 344, Cr. P. Code. It is true that there is evidence on the record that the Magistrates while remanding the accused to custody did not give reasons. AI Magistrate in view of section 344, Cr. P. Code should certainly assign reasons for adjourning the case and remanding the accused to custody. Likewise, under section 167, Cr: P. Code though a Magistrate is not expected to pass an elaborate order, he is certainly required to briefly indicate the reasons for remanding a prisoner to police custody. It must be remembered that a Magistrate acting under section 167 or section 344, Cr. P. Code has to weigh evidence to decide whether the prisoner should be detained in custody or not, and this function of his, is essentially l judicial function. The remand to Police or judicial custody should not be granted in a mechanical fashion application of mind .is a must, and should be granted in case of real necessity and the period should be fixed with due regard to the reasonable requirements of the case, as it involves the liberty of citizens of the State.

4. It has come to my notice in a number of 'cases' that the prisoners are remanded to the custody, in a mechanical manner under section 344, Cr. P. Code thus the important provision of law has become nugatory. Section 344. Cr. P. Code contemplates al stage prior to the submission of the charge‑sheet as time is wanted for further investigation; and also regulates an enquiry or a trial in a criminal Court, therefore, if Magistrates take upon themselves, to enforce this provision in .its letter and spirit, I am sure the usual complaints, which we hear these days of inordinate delay in investigation and trial of criminal cases would evaporate.

5. Now in the case inland, the Magistrates remanded the prisoner to custody without assigning reasons or examining the police file, it was rightly urged that the detention was illegal, but it has come in evidence that the charge‑sheet has been filed in the Court and, the Magistrate has summoned the prosecution evidence. Therefore, even if the detention was illegal in its inception, it came to be validated by the subsequent order passed by the Sub‑Divisional Magistrate under section 344, Cr. P. Code.

6. The result is that at present the detention of Rashid is not unlawful. The petition fails and is dismissed.

A copy of this order should be sent to the Chief Secretary, Government of West Pakistan, for onward transmission to the District Magistrates in the province for compliance.

A.E. Petition dismissed.

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