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Writ Petition No.3968 of 1986, decided on 24th November, 1986.
---S.86-A--Constitution of Pakistan (1973), Art.199---Proceedings without lawful authority--Accused arrested in execution of warrants issued by Assistant Political Agent--No proceedings under S.86-A of Cr.P.C held--Remand not obtained from Judicial Magistrate--Post arrest proceedings, held, to be without legal sanction- -Recalling of proceedings and producing accused before Judicial Magistrate would meet ends of justice and there was no justification to release him in circumstances.
Z. H. Raja for Petitioner.
Tanvir Ahmad Khan,Addl. A.-G. for Respondents.
Date of hearing: 24th November, 1986.
This order shall dispose of two writ petitions bearing No.3968/86 and 4222/86 filed by the same petitioner. It will, however, remain on the file of WP No.3961/86.
2. Briefly put the facts which brought the petitioner to this Court, are, that in a criminal case pending before the Assistant Political Agent, Miran Shah N.W.F.P. North Area, warrants were issued by him against the petitioner, in execution whereof, he was arrested and is now lodged in Camp Jail, Lahore, for his onward transmission to the Tribal area. In Writ Petition No.3968/86, the petitioner has come forward with the contention that before his remove to the Tribal area, it was incumbent upon the District authorities t have conducted proceedings under section 86-A of the Criminal Procedure Code, but no such proceedings were held. In the other writ petition it is urged that under Section 86-A, ibid, his judicial remand could only be allowed by a Judicial Magistrate but the Magistrate before whom, he was produced, was not a Judicial Magistrate. It is, therefore, contended that the entire proceedings conducted by the learned Magistrate are without lawful authority.
3. The stand of the learned Addl. A.-G. is, that the requirements of Section 86-A ibid, were fully complied with; that there is no judicial Magistrate in Lahore; only the Magistrate who work under the control of the High Court, are categorised as the Judicial Magistrates.
4. I called for an official of the High Court, who deals with the subject of the Judicial Magistrates and he has produced before me a list of such Magistrates, which shows that at least five judicial magistrates, are working in Lahore. The amendment incorporated in Section 86-A, by virtue of Act XXI of 1976, ordains that the proceedings under Section 86-A, can only be held by a Judicial Magistrate.
5. Faced with this situation, the learned Addl. A.-G. states at the Bar that respondent No.2 is prepared to recall the proceedings already conducted and order passed in this behalf and produce him before the Judicial Magistrate. I feel that the course suggested by the learned Addl. A.-G. would meet the ends of justice.
6. The learned counsel for the petitioner, however, prays that since all the proceedings have been found to be without lawful authority, the petitioner is entitled to be set at liberty. This argument has no merit. The reason being that it is only after the arrest of the petitioner that he had to be produced before a Judicial Magistrate. The post arrest orders alone may be dubbed to be without any legs sanction. Under these circumstances, there is no justification to releases the petitioner. His production before the Judicial Magistrate would conform to the requirements of law as stated by the learned Addl. Advocate-General and I order accordingly.
With these observations, both the writ petitions are disposed of.
S.A./A-83/L Petition dismissed.
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