As per the guidelines set by the Honourable Supreme Court of Pakistan, a Magistrate who grants remand, is under a strict legal duty to satisfy him or herself, if under the circumstances, remand is to be granted or not. The liberty of a citizen of Pakistan cannot be curtailed and he/she has a legal right to explain their point of view before the Magistrate when remand is to be granted. It is the sacred duty of a Magistrate to safeguard the rights of the citizens. Article 9 of Constitution of Pakistan 1973 guarantees that no person would be deprived of life or liberty, while Article 10 provides safeguards to arrest and detention. Courts must be mindful of this before remanding accused to police custody.
Section 167 of the Code of Criminal Procedure 1898, provides that the Magistrate should satisfy himself that there are grounds for believing that the accusation against the person sent up by the police is well founded and that there are good and sufficient reasons for remanding the accused to police custody instead of detaining him in magisterial custody.
In order to form an opinion as to the necessity or otherwise of the remand applied for by the police, the Magistrate should examine the copies of the diaries submitted under section 167 and ascertain what previous orders (if any) have been made in the case, and the longer the accused person has been in custody, the stronger should be the grounds required for a further remand to police custody. In various cases reported in PLD 1969 Lahore 1020 and PLD 1992 Karachi 358, it has been laid down that remand is not to be granted automatically after the police make such a request.
The duties and obligations cast upon police functionaries and magistrates are highlighted in the landmark judgment of the apex court reported in 1995 SCMR 429. “This Court (Supreme Court) expects the presiding officers to perform their duties with their eyes and ears open as required under the law and pass orders after judicial application of mind and not in a perfunctory and slipshod manner allowing room for mistakes because these mistakes, whether they are inadvertent or not, reflect upon the conduct of the Judge and can be considered as a minus point.”
Furthermore, it is a well-established law in terms of PLD 2007 Karachi 429 that, the judge/magistrate is required to give due attention to the complaint of maltreatment. If the accused has injuries on his person, it is the duty of the judge/magistrate to inquire as to how the accused had received the injuries before remanding him to police custody. The judge then is required to scrutinise the record and act of the police to see whether the act was legal, proper and if formalities required by law had been complied with.
When the judge/magistrate is satisfied that the arrest of the accused was justified, then the question of remand to police or judicial custody arises. Judicial officers are supposed to know that the arrest of a citizen without any legal justification and his detention through unjustified remand besides being illegal creates a sense of injustice and insecurity in the minds of people and no greater mischief than this can be imagined.
The superior courts have laid down several principles for the guidance of subordinate courts. In Ghulam Sarwar v. the State which was reported in 1984 in Pakistan Criminal Law Journal 2588, the High Court held that, “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.” The High Court had also held that the magistrates should realise 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.
The main reason for separation of Executive and Judiciary was the fact that remand was not being properly granted by Executive Magistrates and sometimes bail applications were not attended to seriously.