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Petitioner: ABDUL WAHEED VS Respondent: StateHonorable Justice WAHID BUX BROHIM. Amin Lakhani and Naeem Qureshi
2005 M L D 943
2005 M L D 943 [Karachi] Before Wahid Bux Brohi and Rahmat Hussain Jaffari, JJ ABDUL WAHEED---Applicant versus THE STATE---Respondent Criminal Bail Application No.1187, M.As. Nos. 3978 and 3979 of 2004, decided on 23rd December, 2004.
Criminal Procedure Code (V of 1898)--- ----Ss. 86, 87, 76 & 561-A---Control of Narcotic Substances Act (XXV of 1997), Ss. 16, 15 & 9(c)---Application under S. 561-A, Cr.P.C.---Applicant had been arrested in a case registered at Lahore for an offence under Ss. 16, 15 & 9(c) of the Control of Narcotic Substances Act, 1997 and a proclamation under S. 87, Cr.P.C. had been issued against the applicant in that case---Applicant was arrested at Karachi and was produced before the Judicial Magistrate who passed an order remanding the applicant to judicial custody---Procedure to be followed in the case outlined by High Court. In exercise of the powers under subsection (1) of section 86, Cr.P.C. Judicial Magistrate had the first option to direct removal of the applicant in custody to the relevant Court at Lahore, but the aforementioned order was silent if such order was passed. No other documents had been filed to suggest if at a subsequent stage the order within the meaning of subsection (1) of section 86, Cr.P.C. was passed by the Judicial Magistrate. Then, the first proviso to section 86(1), Cr.P.C. contemplated an action in cases of bailable offence but this course was not available to the Judicial Magistrate since the offence was not bailable. Ultimately, the procedure prescribed in the second proviso to section 86(1), Cr.P.C. was the only remedy available to the applicant. Proclamation under section 87, Cr.P.C. had already been issued by the Court at Lahore. However, second proviso to section 86(1), Cr.P.C. provided that when the offence was not bailable and no direction was endorsed under section 76, Cr.P.C., the applicant had to approach to the Sessions Judge of the Division where the arrest had been effected. High Court directed that within the meaning of second proviso to section 86(1), Cr.P.C. the applicant may approach the relevant Sessions Court at Karachi which shall pass an appropriate order in accordance with law within the scope of the proclamation under section 87, Cr.P.C. issued by the Court at Lahore. Walayat Khan v. The State 1993 PCr.LJ 738 ref. M. Amin Lakhani and Naeem Qureshi for Applicant. Date of hearing: 23rd December, 2004.
ORDER WAHID BUX BROHI J.---The application M.A. No.3978 of 2004 is granted and in consequence thereof the other application M.A. No.3979 of 2004 is taken up for consideration. It may be stated that the main application was dismissed for non-prosecution today and the last mentioned application has been made for recalling the said order under section 561-A, Cr.P.C. This application is supported by the affidavit of learned counsel for applicant, wherein he has explained that when the matter was called he was present before another Bench. Although, it is stated that the matter was not mentioned in the additional list, the Reader of this Court states that roster branch had issued a Supplementary (Katchi) List as usual, since the matter was filed yesterday in late hours and that was the right course adopted by the office. However, in view of the personal ground of learned counsel for the applicant this application is allowed and the main application is taken up for hearing. We have heard Mr. M. Amin Lakhani learned counsel for the applicant who is assisted by Mr. Naeem Qureshi Advocate on the main application. The applicant has been arrested in a case registered at Police Station Ravi Road, Lahore on 14-5-2001 for an offence punishable under section 16/15/9(c) of the Control of Narcotic Substances Act, 1997. In that case a proclamation under section 87, Cr.P.C. was issued against the applicant but the Lahore police could not succeed in apprehending him. On his arrest here at Karachi he was produced before the Judicial Magistrate on 13-11-2004. Learned Judicial Magistrate passed an order remanding the applicant to judicial custody for five days and ordered his production on 18-11-2004. In exercise of the powers under subsection (1) of section 86, Cr.P.C. learned Judicial Magistrate had the first option to direct removal of the applicant in custody to the relevant Court at Lahore, but the aforementioned order is silent if such order was passed. No other document has been filed to suggest if at a subsequent stage the order within the meaning of subsection (1) of section 86, Cr.P.C. was passed by the learned Judicial Magistrate. Then, the first proviso to section 86(1), Cr.P.C. contemplates an action in cases of bailable offence but this course was not available to the learned Judicial Magistrate since the offence is not bailable. Ultimately, the procedure prescribed in the second proviso to section 86(1), Cr.P.C. was the only remedy available to the applicant. In this context it may be mentioned that a proclamation under section 87, Cr.P.C. has already been issued by the Court at Lahore. However, on bare perusal of the second proviso to section 86(1), Cr.P.C. it is manifest that when the offence is not bailable and no direction is endorsed under section 76, Cr.P.C., the applicant has to approach to the learned Sessions Judge of the Division where the arrest has been effected. Even in the precedent case cited by the learned counsel, Walayat Khan v. The State (1993 PCr.LJ 738) the prescribed course was adopted rightly and the Sessions Court was approached, first. Consequently, we direct that within the meaning of second proviso to section 86(1), Cr.P.C. the applicant may approach the relevant Sessions Court at Karachi which shall pass an appropriate order in accordance with law within the scope of the proclamation under section 87, Cr.P.C. issued by the Court at Lahore. Application stands disposed of.
M.B.A./A-174/K Order accordingly.