3.2 Pre-Trial Detention – Physical and Judicial Remand

Pre-trial Detention – Physical and Judicial Remand

 

• International Human Rights Safeguards and Standards

 

International law lays down certain standards for the protection of human rights during deprivation of liberty in the form of detention as well. Much like arrest, the principle of legality must be complied with in relation to detention as well which means that such deprivation of liberty must be lawful.^[1] The UDHR and core international human rights conventions lay down the standards of protection to be accorded during pre-trial detention.

 

However, it must be noted that pre-trial detention is seen as a last resort in international law and may be used where there is a credible risk of the accused absconding or committing more serious crimes.^[2] The UN Human Rights Committee has taken the view that detention when an accused has not been convicted of a crime impacts the presumption of innocence^[3] and may lead to further violations of human rights. To this end, the HRC has stated that, “bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the state party.”^[4] A report of the Justice Project Pakistan (JPP) had revealed in May, 2020 that there were 77,275 prisoners in Pakistani prisons against the authorised capacity of 57,742 prisoners in Sindh, Punjab, K-P and Balochistan. “This is 34 per cent more than the official capacity.” The report revealed that out of Pakistan’s total prison population (77,275), 65 percent of all prisoners are currently undergoing trial. “This means that 48,008 prisoners out of Pakistan’s prison population have not yet been convicted of a crime.”^[5]

 

The issue of under-trial prisoners not only leads to overcrowding but leads to conditions for rampant abuse of prisoners as well. In Saqib Raza v. State,[6] the High Court emphasised on the need to protect the rights of under-trial prisoners and stated that expeditious and a fair trial is a fundamental right which must be protected for all. The Court stated that delay in imparting justice leads to reduced confidence of the public in the judiciary which must be avoided. Moreover, the Code of Criminal Procedure (Amendment) Act 2011 also provides for statutory bail to under trial prisoners whose trials have not been disposed of in the prescribed time limit. Thus, an under trial prisoner is entitled to bail if he has been charged with any offence not punishable by death and has been detained for one year. This reflects the budding need to ensure the rights of under trial prisoners and to limit pretrial detention in line with international law on the subject.

 

The primary international law with regards to pre-trial detention can be found within Article 9 of the ICCPR which provides for the protection of the right to liberty and security of person and requires all deprivations of liberty to be conducted in a manner in accordance with the procedures established by law. Article 9(3) encapsulates the international standards relating to pre-trial detention and explains that any detained individual is entitled to a fair trial within a reasonable time, and any individual awaiting trial may be detained, or released on conditions set out by the law. Furthermore, Article 9(4) provides individuals with the right to challenge the legality of detention thus ensuring that arbitrary arrest and detention are prohibited.

 

In explaining the application of Article 9 of the ICCPR, the HRC has stated that pre-trial detention must only be used as an exception. In General Comment No. 8 the HRC notes that such detention should be as short as possible and defines ‘reasonable time’ within Article 9(3) as no longer than 48 hours.

 

Furthermore, Article 11 of the UDHR states that every individual has the right to be presumed innocent until proven guilty, and no individual must be held criminally responsible under any law which applies retrospectively. The same can be found within Article 14(2) of the ICCPR as well. Article 14 of the ICCPR establishes various protections such as equality before the law, right to effective remedy by a competent Court, right to fair trial and due process of law, right to compensation in cases of miscarriage of justice, and the right to not be held criminally liable if acquitted for an offence in accordance with the law. Furthermore, Article 15 states that every individual has the right to not be held criminally liable under law which applies retrospectively.

 

Additional standards have also been established under international law which are essential in providing guidance for the protection of those in pre-trial detention. A list of such standards is presented below:

 

INSTRUMENT	RELEVANT CONTENT
Standard Minimum Rules for the Treatment of Prisoners	Rules 84 to 93 provide for the provision of separate accommodation for untried prisoners. Furthermore, individuals in pre-trial detention are to be kept in separate rooms, allowed to wear their own clothes, are to be given opportunities for work but are not required to work, must be allowed to visit or treated by their own doctor, and must be provided with legal aid to present their defense.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment	These principles require for humane treatment of anyone deprived of their liberty and places a prohibition on derogation from human rights of those who have been detained. The principles place a strict prohibition on torture, requires provision of separate accommodation for detained persons, provision of legal assistance and upholds the right to fair trial. Further, the principles strictly prohibit the use of violence or other measures to compel the detained person to confess or to incriminate himself.
UN Basic Principles and Guidelines on Remedies and Procedures on the right of anyone deprived of their liberty to bring proceedings before a Court.	These require detained persons to be informed of the charge against them, provided adequate time to challenge their deprivation of liberty, provision of legal aid and the ability to bring proceedings in Court. These Principles also require specific measures to be adopted to ensure that women and girls are treated equally in challenging the legality of any deprivation of liberty to which they have been subjected.
Convention on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.	The UN Convention places a strict prohibition on torture and any form of inhumane or degrading treatment which is equally applicable to individuals subjected to pre-trial detention.
UN Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules)	These provide for alternatives to pre-trial detention and require that detention should be used as a last resort only when non-custodial measures are not appropriate.
Convention on the Rights of the Child	The Convention requires detention of a child to be a measure of last resort, and requires any child deprived of their liberty to be treated with humanity and respect. Furthermore, it requires that children deprived of their liberty must be provided with separate accommodation and kept separately from adult detainees. It further requires legal assistance to be provided to children subjected to detention.
UN Standards Minimum Rules for the Administration of Juvenile Justice (Beijing Rules)	Rule 13 explains that detention pending trial must be used as a last resort, children awaiting trial must be kept separately from adults and are entitled to all rights provided under the Rules.
UN Rules for the Protection of Juveniles Deprived of their Liberty.	These Rules state that any juveniles awaiting trial must be presumed innocent until proven guilty, must be provided legal counsel, must be provided separate accommodation, must be provided with opportunities to work and should receive materials for leisure and recreation.

 

Figure 3.4 – International Human Rights Standards in Pre-Trial Detention

 

• Constitutional Safeguards

 

The protections accorded under Article 9 and 10 of the Constitution apply to cases of pre-trial detention as well which means that any deprivation of liberty must be made in accordance with human rights and the security of such persons must be protected. Furthermore Article 10 stipulates that any detained individual must be informed of their arrest, and must be provided access to legal consultation.

More importantly, Article 10 requires detained persons to be produced in front of a magistrate within twenty-four hours of their arrest so as to determine the legality of such deprivation of liberty. In addition to this, the Constitution of Pakistan requires the right to fair trial to be protected (Article 10A) and prohibits slavery and forced labour of all kinds for persons awaiting trial.

 

The rights of detained persons are further protected under Article 12, 13 and 14 which prohibit retrospective punishment, provide protection from double punishment and self-incrimination and establishes the inherent dignity of man. Article 14(2) clarifies that a person must not be subjected to torture to extract evidence which must be complied with during pre-trial detention as well.

 

• Domestic Law and Jurisprudence

 

Beyond the initial twenty-four hour period after an arrest, further pre-trial detention in Pakistan is divided into two categories – physical and judicial remand.

 

• Physical Remand

1. Domestic Law

 

Physical Remand includes detention of the accused in police custody to further investigate the commission of the crime. An arrest permits the Police to detain an individual for the purposes of investigation for up to twenty-four hours^[7] and where the Police cannot complete their investigation within twenty-four hours, the accused must be produced before a magistrate. However, continued custody of the detained individual may be requested through an application for physical remand.

 

This procedure has been laid down by Sec. 167 Cr.P.C. which provides that if an investigation cannot be completed within 24 hours, and there exists sufficient information as to the commission of a crime then the arrested person may be detained for a time exceeding twenty-four hours. Furthermore, it stipulates that for such an extension to be made a Magistrate may authorize detention for a term not exceeding fifteen days.^[8] In practice, Magistrates are approached several times for extension in remand and it is common for the full 15 day remand period to be granted to the Police.

 

In addition to this, any Magistrate authorizing such detention is under a duty to record the reasons for such detention,^[9] and if detention is not deemed appropriate then a Magistrate may try the case or send the accused for trial to a Magistrate who has sufficient jurisdiction to try the case.^[10] Sec. 167(5) lays down the law for physical remand of women and states that a magistrate may not authorize detention of a female in cases other than those involving Qatl or Dacoity, and the interrogation of the accused must be conducted in the presence of an officer of jail and a female police officer.^[11]

 

The specific application procedure for physical remand is dealt with by Rule 25.56 of the Police Rules 1934.^[12] Rule 25.56 (1) explains that an application for remand is to be made on an incomplete Charge Sheet Form found in Form No. 25.56(1) of the Police Rules. Copies of the case diary concerning the investigation are to be attached to this application and produced before the Magistrate along with the arrested individual and the Magistrate must record his order on the application form which is not to be returned to the police but forms part of the Magisterial proceedings.

 

The basis for seeking remand was discussed in the case of Rasool Bux v. the State^[13] where the Karachi High Court juxtaposed the requirements of Sec. 54 Cr.P.C. regarding the grounds needed to arrest with those under Sec. 167 Cr.P.C. relating to the grounds upon which physical remand may be granted. Under Sec. 54 Cr.P.C. The wordings are that the police officer has ‘reasonable suspicion’ of the accused having being concerned in the crime thus justifying his arrest. Sec. 167 on the other hand, requires a police officer to have “grounds for believing” that the accusation or information received by him against the appellant is well founded. According to the Karachi High Court, the police should have some tangible evidence with them which converts their opinion from a ‘reasonable suspicion’ (Sec. 54) to ‘belief’ (Sec. 167) about the involvement of the accused within twenty-four hours of arrest and for that there should be grounds to show that the accusation or information is well founded.

 

Further guidance in relation to the grounds for requesting remand has also been provided within Rule 25.26(2) the relevant portions of which have been produced below:

 

POLICE RULES 1934

Rule 25.56(2)

(2)    No application for remand to police custody shall be made on the ground that an accused person is likely to confess. Grounds for such an application should be of the following nature:  That it is necessary to take the accused to a distance that he may be shown to persons likely to identify him as having been seen at or near the scene of the offence. That it is necessary to have his footprints compared with those found on or near the scene of offence. That the accused has offered to point out stolen property or weapons or other articles connected with the case. Any other good and sufficient special reason.

 

Figure 3.5 – Rule 25.56(2) Police Rules 1934

 

The following principles^[14] have also been laid down for the guidance of Magistrates in the matter of granting remands, and District Magistrates are required to see that they are carefully applied:

 

1. Under no circumstances should an accused person be remanded to Police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of the inquiry. A general statement by the officer applying for the remand that the accused may be able to give further information should not be accepted.
2. When an accused person is remanded to Police custody the period of the remand should be as short as possible.
3. In all ordinary cases in which time is required by the Police to complete the inquiry, the accused person should be detained in magisterial custody.
4. Where the object of the remand is merely the verification of the prisoner’s statement, he should be remanded to magisterial custody.
5. An accused person who has made a confession before a Magistrate should be sent to the Judicial lock-up and not made over to the Police after the confession has been recorded. If the Police subsequently require the accused person for the investigation, a written application should be made giving reasons in detail why he is required and an order obtained from the Magistrate for his delivery to them for the specific purposes named in the application. If an accused person, who has been produced for the purpose of making a confession, has declined to make a confession or has made a statement which is unsatisfactory from the point of view of the prosecution he should not be remanded to Police custody.

 

These principles have been included in the Police Rules as well for the guidance of Police officers.

 

Finally, the Cr.P.C. under Sec. 173 requires the submission of a police report at the culmination of the investigation. This report must be made in accordance with Form 25.57(2) of the Police Rules 1934 and is significant as it marks the end of physical remand, requiring that investigation must be completed without unnecessary delay. On completion of the maximum period of police remand under Sec. 167 Cr.P.C. the accused becomes entitled for trial, and challan/final Police report under Sec. 173 Cr.P.C. is to be submitted before the competent Court of jurisdiction through a Public Prosecutor.^[15]

 

Furthermore, principles as to remand in cases regarding terrorism are dealt with under the Anti-Terrorism Act 1997 under which an Anti-Terrorism Court is deemed to be a Magistrate and is empowered to grant physical or judicial remand.^[16] The ATC may grant physical remand for a period of thirty days at a time, up to a total remand period of ninety days.^[17] Extensions beyond the initial thirty days are to be granted if the ATC is satisfied that further evidence may be available and that no bodily harm has been or will be caused to the accused.^[18]

 

The HRC review of Pakistan also further sheds light upon this issue. It states that Pakistan ‘should review the Anti-Terrorism Act with a view to aligning  the definition of terrorism provided in article 6 of the Act with international standards; removing the jurisdiction of the antiterrorism courts over juvenile offenders; repealing section 21-H of the Act; and establishing procedural safeguards in the Act and bringing the court proceedings in line with articles 14 and 15 of the Covenant to ensure fair trials. It should also take the measures necessary, acting in line with the Covenant, to reduce the existing backlog of case. [19]

 

The review also highlighted that there was a rising concern regarding the country’s application of the death penalty in cases which do not constitute as the “most serious crimes” as defined by Article 6(2) of the Covenant. This is further exacerbated by  the death penalty being assigned to juveniles and individuals suffering from psychosocial or intellectual disabilities. There is also no existing record of clemency applications being granted, instead there is reason to believe that a blanket policy exists to refuse clemency applications and there is no mechanism in place to prevent executions through torture or inhumane punishment. A large number of Pakistani migrant workers who have either been awarded the death penalty or already executed in foreign countries apparently receive inadequate consular and legal services which is a protected right to under Articles 2, 6, 7, 9, 14 and 24. [20]

 

The review states that death penalty should only  be applied for the “most serious crimes” and should not be treated as a mandatory sentence. Pardons or commutations of the sentence should be available in all cases lest it be imposed in violation of the Covenant. Such a violation also exists if the death penalty is awarded in the absence of fair trial procedures or by military courts. Secondly, the review states that Pakistan should ensure that individuals who were below 18 years of age at the time the offence was committed are not subjected to the death penalty and that an independent and effective age determination process is in place in such situations. In case of doubt, the offender should be treated as a minor. The State party needs to make a greater effort to register children at birth and employ all reasonable measures to facilitate the identification of undocumented children[21]. Thirdly, individuals with psychosocial or intellectual disabilities should be exempt from the death sentence. This may be facilitated by the establishment of an independent mechanism to review all cases where sufficient evidence exists that the prisoner facing death penalty is the victim of such disabilities as well as to monitor the mental health of death row inmates. Lastly, Pakistani migrant workers facing the death penalty in foreign countries must be provided with effective and sufficient legal and consular services throughout their legal proceedings.[22]

 

With regards to the use of torture and cruel or inhumane forms of punishments and executions against prisoners, The HRC review stated that Pakistan should adopt measures to discourage this practice. The laws should be amended to ensure that all elements of the crime of torture are prohibited in accordance with  Article 7 of the Covenant and sanctions should be imposed for acts of torture proportional to the gravity of the crime. Secondly, mechanisms should be developed to ensure prompt, thorough and effective investigation of all allegations of torture or ill-treatment. The accused must be immediately prosecuted and accordingly penalized if found guilty of the offence while the victims should be rehabilitated or receive effective remedies. To further discourage and discredit torturous acts, confessions obtained through coercion must be deemed inadmissible during legal proceedings and the training of judges, prosecutors, police, military and security forces should be strengthened in this regard.[23]

 

At the same time, review recommends that Pakistan should also tackle the issue of prison overcrowding and must improve the conditions of detention with regards to healthcare and hygiene. All necessary measures should be taken to restrict situations in which pretrial detention is allowed. Instead, this should only be viewed as an exceptional measure and not be allowed for very lengthy periods of time in accordance with Article 9 of the Covenant.[24]

 

2. Jurisprudence

 

The Superior Judiciary has adopted a liberal approach to Sec. 167 Cr.P.C. and has established guiding principles for pre-trial detention which aim to restrict the potential for abuse within detention. In Mian Ghulam Ijaz v. State^[25] the Court took the view that an accused cannot merely be physically remanded because his presence is essential for the completion of the investigation, and there needs to be sufficient grounds for such detention to be granted.

 

In Ghulam Sarwar’s Case^[26] the Court laid down fifteen principles which aimed at regulating the grant of remand and improving accountability in the process. The principles are as follows:

 

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 Sec. 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 Sec. 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. The Magistrate shall not grant remand mechanically for the sake of co-operation with the prosecution/ police.

 

In another landmark case, Noor Muhammad v. SHO Police Station KlurKot, District Bhakkar, the Lahore High Court further developed the jurisprudence relating to remand.^[27] The principles laid down by the Court in this case are also useful for determining whether a person should be remanded to police custody or judicial/magisterial custody.

 

1. In order to form an opinion as to the necessity or otherwise of the remand applied for by the police, the Magistrate should ascertain what previous similar 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.
2. Under no circumstances should an accused person be remanded to police custody unless it is made clear that his presence is actually needed in order to serve some important and specific purpose connected with the completion of the enquiry.
3. A general statement by the officer applying for the remand that the accused may be able to give further information should not be accepted.
4. When an accused person is remanded to police custody the period of the remand should be as short as possible.
5. In all ordinary cases in which time is required by the police to complete the enquiry, the accused person should be detained in magisterial custody.
6. Where the object of the remand is merely the verification of the prisoner’s statement, he should be remanded to magisterial/ judicial custody.
7. A prisoner, who has been produced for the purpose of making a confession and who has declined to do so, or has made a statement which is unsatisfactory from the point of view of the prosecution, should in no circumstances be remanded to police custody.
8. In any case when an accused person is remanded to police custody, the reasons must be recorded in the order of remand.
9. If the physical remand is granted by a Magistrate a copy of the order has to be forwarded to the Sessions Judge under Sec. 167(4) of the Code of Criminal Procedure who can suo moto review the same under Sec. 439-A of the Code of Criminal Procedure. However, if the physical remand is granted by a Special Court or an Executive Magistrate not under the administrative control of the Sessions Judge, he need not send a copy of the order to him.

 

The Lahore High Court cautioned the Special Courts and Magistrates to adopt the utmost precautions when granting physical remand otherwise they could also be held responsible/liable for any extra-judicial killing effected afterwards by the Police.

 

Due to the nature of pre-trial detention under physical remand, Courts in Pakistan have taken the view that such powers must be exercised with caution. In Rehan v. State^[28] the Supreme Court stated that if the final report of investigation could not be submitted after the time prescribed under Sec. 167 Cr.P.C. then an interim challan must be submitted through the Public Prosecutor for trial and an accused must not be kept in detention without any legal justification for an indefinite period.

 

In the State v. Nasir Javed Rana^[29] the Court emphasised that the liberty of a person cannot be curtailed and every accused has the right to represent themselves before a Magistrate when remand is to be granted. Additionally, it was stated that it is the sacred duty of a Magistrate to safeguard the rights of individuals due to which remand cannot be granted on a mere request of the Police. Furthermore, in Haseeba Taimoor Afridi v. The State^[30] the Court stated that under Sec. 167 Cr.P.C. it is the duty of the Magistrate to satisfy himself that there are grounds for believing that the accusation or information is well founded for justifying custody of an accused with the police.

 

Furthermore, in relation to timely submission of police reports, the Court in Hakim Mumtaz Ahmed v. The State^[31] stated that delay in submission of challan under Sec. 173 Cr.P.C. has been noticed invariably in criminal cases, resulting in a large number of persons detained in jails without trial – which is in clear violation of Article 9 of the Constitution. The Court noted that the detention of accused individuals for indefinite periods without trial cases creates innumerable problems and that the Superintendent of the Police should initiate action against any S.H.Os or Investigating Officers found negligent in complying with the mandatory provisions of Sec. 173 Cr.P.C.

 

• Judicial Remand

 1. Domestic Law

 

Judicial Remand is characterized as the custody of an accused in a prison after he has been produced in front of a Magistrate within twenty-four hours of his arrest. In such cases, where the accused is alleged to have committed a bailable offence, he/she is entitled to bail as of right and be released from custody. Where bail is denied in non-bailable cases, the Court will extend the accused’s detention through the mechanism of judicial remand. Here the accused would be sent to prison awaiting the finalization of investigation or the commencement of trial. Judicial remand is of immense importance as no bail application can be moved when an accused is in physical remand of the police.

 

Judicial remand operates in two ways. Where the police seek physical remand under Sec. 167 of the Cr.P.C. the Court can instead grant judicial remand where it feels that the physical presence of the accused is not needed for the police investigation. This judicial remand cannot last longer than 14 days as envisioned in Sec. 167. Where physical remand is granted to the Police for a period less than the maximum 14-day period, the remainder of this period can be given as judicial remand under Sec. 167. After the culmination of the initial fifteen-day period from arrest wherein either physical or judicial remand is granted and investigation ought to be completed, any further detention of the accused may only be granted under the provisions of Sec. 344 of the Cr.P.C. The detention of an accused under Sec. 344 is not intended to be penal but to ensure the attendance of the accused at the trial. At any period during judicial remand a bail application may be made and the accused may be admitted to bail under Sec. 497 Cr.P.C.

 

In order for the prosecution to obtain a judicial remand under Sec. 344 three conditions are required to be fulfilled:

 

1. Some evidence should be adduced before the Court which should be sufficient to raise suspicion of the accused’s guilt and the Court should be sure that further evidence to strengthen the suspicion is expected to be collected;
2. A police report in writing of acts constituting the offence must be produced to enable the Court to take cognizance of the offence; and
3. If the nature of the case is such that no cognizance of the offence can be taken without previous sanction, then such sanction should be produced to enable the Court to take cognizance of the offence.^[32]

 

Proceedings relating to judicial remand are proceedings within the meaning of Sec. 340 Cr.P.C. and therefore, during these proceedings, an accused has the right to be represented by his lawyer and to have access to his relatives for that purpose.^[33] No single order of remand by a Magistrate under Sec. 344 can exceed fifteen days at a time. However, there is no limit on the total period of a series of orders of remand. Further remand under Sec. 344 can only be made if sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence and that it appears likely that further evidence may be obtained by remand.^[34]

 

Generally, under the Cr.P.C. only in exceptional cases can a Magistrate having sent an individual to judicial remand, send him back to the police on physical remand. This is to be distinguished from the procedure under the Anti-Terrorism Act 1997 where such a transfer back to physical remand is specifically authorized. Under Sec. 19(5) of the Anti-Terrorism Act 1997 if an accused has been released from police custody, remanded to judicial custody then the ATC is authorized to grant physical remand to the Police or any other investigating agency joined in the investigation for the purpose of further investigation in the case.

 

 

DISTINCTION BETWEEN SEC. 167 AND SEC. 344 CR.P.C

▪         Remand under Sec. 167 may be both physical or judicial remand. ▪         Physical/police remand may only be granted where the Police require physical custody of the accused for the purposes of investigation, otherwise judicial remand will be granted. ▪         Continued detention in custody of the accused after the initial 15-day period cannot be granted under Sec. 167 but only under Sec. 344. ▪         The powers given by Sec. 167 Cr.P.C. cannot be exercised by a Magistrate of 1st or 2nd class unless he is specially empowered in that behalf. This detention in custody can only be judicial remand. In essence custody under Sec. 344 is for under-trial accused persons. ▪         The maximum period of detention under Sec. 167 is fifteen days whereas the sum period of detention under Sec. 344 can exceed fifteen days provided sufficient reason is found. ▪         It is to be noted that since Sec. 344 deals with postponement or adjournment of trial, such delays can only be made for fifteen days at a time. ▪         With regards to the location of detention under these sections, under Sec. 167 detention may be in police custody or in judicial lockup whereas detention under Sec. 344 can only be in judicial lockup (jail). ▪         With regards to the jurisdiction of the Magistrate to try the case, since Sec. 167 applies when the police are conducting investigation at the preliminary stage- prior even to the framing of charges whereas Sec. 344 generally applies after commencement of the trial. Therefore, a Magistrate acting under Sec. 167 need not have jurisdiction to try the case, however a Magistrate acting under Sec. 344 must have jurisdiction over the case in order to grant remand.

 

Figure 3.6 – Distinction between Sec. 167 and Sec. 344 Cr.P.C

 

2. Jurisprudence

 

Courts in Pakistan have recognised the need to protect the rights of individuals who have been arrested and detained prior to conducting a fair trial to determine the illegality of the actions of the accused. In Dost Muhammad v. Addition Sessions Judge Barkhan at Rakhni^[35] the Court stated that in exercising the power under Sec. 344, the reasons for adjournment of proceedings must be in writing and the duration      of such adjournment must be reasonable. Furthermore, in Adeel v. State^[36] It was      held that it is settled law that once an accused is sent to Judicial lock-up he cannot be handed over to Police subsequently and successive remand cannot be given except in extraordinary circumstances. If remand is required in exceptional cases, then it must be on the basis of details given in the application for remand and the reasons given by the Magistrate concerned.

 

 

---

^[1] OHCHR and IBA, ‘Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers’ Professional Training Series No. 9, 2003

^[2] Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August – 7 September 1990, Chapter 1, section C, paragraph 2(b).

^[3] Human Rights Committee, Concluding Observations: Argentina, UN Doc CCPR/CO/70/ARG (2000), para. 10.

^[4] Hill v. Spain, Communication No. 526/1993, para. 12.3.

^[5] https://tribune.com.pk/story/2262196/pm-orders-release-of-women-prisoners-in-line-with-top-court-order

[6] 2015 MLD 515 Karachi High Court Sindh

^[7] Sec. 61 Cr.P.C. 1898 (Act V of 1898)

^[8] Sec. 167(2) Cr.P.C. 1898 (Act V of 1898)

^[9] Sec. 167(3) Cr.P.C. 1898 (Act V of 1898)

^[10] Sec. 167(2) Cr.P.C. 1898 (Act V of 1898)

^[11] Sec. 167(5) Cr.P.C. 1898 (Act V of 1898)

^[12] Rule 25.26 Police Rules 1934

^[13] 2005 YLR 915

^[14] Part-B Chapter 11-B Volume-3 of Rules and Orders of the Lahore High Court

^[15] Sec. 173(1) Cr.P.C 1898 (Act V of 1898)

^[16] Sec. 21E(2) Anti-Terrorism Act 1997

^[17] Sec. 21E(1) and (2) Anti-Terrorism Act 1997

^[18] Sec. 21E Anti-Terrorism Act 1997

[19] Sec. 22 International Covenant on Civil and Political Rights [2017] CCPR/C/PAK/CO/1

[20] Sec. 17 International Covenant on Civil and Political Rights [2017] CCPR/C/PAK/CO/1

[21] Sec. 44 International Covenant on Civil and Political Rights [2017] CCPR/C/PAK/CO/1

[22] Sec. 18 International Covenant on Civil and Political Rights [2017] CCPR/C/PAK/CO/1

[23] Sec. 26 International Covenant on Civil and Political Rights [2017] CCPR/C/PAK/CO/1

[24] Sec. 28 International Covenant on Civil and Political Rights [2017] CCPR/C/PAK/CO/1

^[25] 2018 PLD Lahore High Court 151

^[26] 1984 P.Cr.L.J 2588

^[27] 2000 YLR Lahore 85

^[28] 2009 SCMR Supreme Court 181

^[29] PLD 2005 Supreme Court 86

^[30] 2013 SCMR 1326

^[31] 2002 PLD Supreme Court 590

^[32] Dr. Aijaz Hassan Qureshi v. Government of the Punjab through Secretary Home Department Government of Punjab, Lahore and another 1977 PLD Lahore 1304

^[33] ibid

^[34] Amir v. Bakhshu and six others 1975 PLD Lahore 625

^[35] 2017 P.Cr.L.L Quetta High Court 1654

^[36] 2016 YLR Peshawar High Court 2212