Remand (Part 3)

I am giving these case laws for my lawyer brothers. If you look for Section 167, you will find it there too: 167 CrPC, 1992, Pakistan Criminal Law General, page 131. In it, the High Court has formally held that if there is more than one case at the same police station, then arresting in one after another, one, then two, then a third, is not the intent of the law. Arrest in all cases should be put on the same day, and remand should be taken in all cases on the same day, and while taking remand, the magistrate will see in which case remand should be granted and in which it should not.

Now the other side of this: after twenty-four hours, he is produced, and the magistrate is told, sir, recovery is to be made from him, the truth is to be discovered, this and that, and it is made out that if his physical remand is granted, the prosecution will stand on its own feet, and if his physical remand is not granted, it won't. Now if the magistrate does grant his physical remand, whose shoulders does the responsibility fall on? The investigating officer will have to account for every single minute, explain that the body of this person, this accused, was handed to you, account for every minute, what progress did you make in his investigation?

If, over three days, the case-diary entries (zimnis) show what he actually did, and if he sits idle and does nothing, that becomes a lapse on the part of the prosecution, because the investigating officer is a part and parcel of the prosecution. The prosecution cannot then ask the court for further remand, cannot ask for physical remand. The court will refuse, saying, a person has a constitutional right to liberty, I gave you his custody for three days or four days or two days. I handed over an extremely valuable right to you, and you treated it as routine. Now you will have to answer for it, I will not give you further physical remand, I am sending him to judicial lock-up. This is within the magistrate's authority. Saying, sir, this is the first remand, is no argument at all. Why is physical remand needed? Because the complainant says it is needed, and the accused says it is not needed.

Now here is another interesting point: should it be assumed that once an FIR is registered and the accused is arrested, he absolutely must be produced before a magistrate within twenty-four hours? Is this an absolute rule? The answer to this question is: no, it is not necessary that just because a police officer has arrested an accused, his only path is to be produced before a magistrate after twenty-four hours, whether he's guilty or innocent. The law gives the arresting investigating officer the authority that, having arrested the accused, because until then you only had what was on the record, the one-sided version given by the prosecution, on the basis of which you were compelled to think that arresting him was necessary, but as soon as the accused is arrested and states his own position, and you find weight in that position, then, Mr. Investigating Officer, it is not the court but the law itself that gives you the authority to release that person immediately, to release him immediately, because the evidence against him is weakening, because you do not have enough evidence relating to that offence to justify keeping him after arrest.

The law says that if there is no evidence, the investigating officer can release him under Section 169 CrPC, with or without a surety bond. This authority lies with the police, given by this very law. Now this does not mean that if he released him, discharged him, freed him on a surety bond under Section 169 in the presence of alleged evidence, he cannot arrest him again. He can arrest him again, once evidence comes onto the record showing yes, he did commit this offence, he can be arrested again too. Always remember this: if your accused is caught and must be produced before a magistrate within twenty-four hours, your very first move should be to ask the magistrate for his medical examination. If the accused has no lawyer there, no family member there, the accused himself should say, sir, get my medical examination done, I strongly suspect they will torture me.

That medical exam will happen, and if that medical exam turns up something out of the ordinary later, the police will have to answer for it. The accused should have a lawyer who can state what exactly was done to him during physical remand. He can bind the magistrate, he can request the magistrate, and in light of that request, bind him, that these facts, these things I have told you, be made part of the record, so that if any additional custodial courts write something on my behalf, they must write it in their own hand, I did not do it. The police get people to write, oh sir, I made a mistake, I ask for forgiveness, or a confessional statement after a murder: sir, I made a mistake, forgive me, I will get the weapon recovered. Human reason simply does not accept this. These aren't even proper parameters of investigation. There is no difficulty at all, for investigating officers, in catching an accused, and if the accused is guilty, properly connecting him to that offence with what he actually did. You can do this without ever touching him. You need to have the competence for it.