Powers of the magistrate | can a duty magistrate can discharge accused on remand stage.

Meaning of duty magistrate .

A duty magistrate is a magistrate who duty on behalf of any magistrate is on leave. Often duty magistrate only dates in cases and not proceed main case. But they have all the powers what a regular magistrate have.

Powers of duty magistrate

ڈیوٹی مجسٹریٹ کی کیا پاورز ھیں وہ کیا کام کر سکتا ھے اور کیا کام نہیں کر سکتا۔

زیر نظر کیس لا میں ھائیکورٹ نے قرار دیا کہ ڈیوٹی مجسٹریٹ ریمانڈ کے لیے آۓ ملزم کو کیس سے ڈسچارج کر سکتا ھے۔

ملزم کو کورٹ میں ریمانڈ لینے کی غرض سے پیش کیا۔ بحث سننے کے بعدڈیوٹی مجسٹریٹ نے فیصلہ کیا کہ کیس سول نیچر کا ھے اور ملزم کو کیس میں غلط پھنسایا گیاھے۔

ڈیوٹی مجسٹریٹ نے ریمانڈ دینے کی بجائے ملزم کو کیس سے ڈسچارج کر دیا۔

مدعی نے آرڈرز کو ھائی کورٹ میں رٹ میں چیلنج کیا۔ ھائیکورٹ نے تمام سیکشن کو تفصیل کے ساتھ ڈسکس کیا اور قرار دیا کہ متعلقہ سیکشنز میں کہیں بھی ڈیو ٹی مجسٹریٹ کا ذکر نہیں ھے۔

لہزا ڈیوٹی جج کے پاس وہ ساری پاورز ھیں جو ریگولر مجسٹریٹ کے

پاس ھیں۔ھائیکورٹ نے رٹ خارج کر دی اور مجسٹریٹ کا فیصلہ برقرار رکھا۔

Case laws on Powers of duty magistrate

ORDER SHEET

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

JUDICIAL DEPARTMENT

W.P No.15198/2023

(Muhammad Bilal Vs. The State etc.)

Date of hearing:

25.10.2023

Petitioner by:

Mr. Muhammad Tariq Aqeel Qureshi,

Advocate.

Respondent by:

Nemo.

State by:

Mr. Hassan Mehmood Khan Tareen,

Deputy Prosecutor General for the State and

Mr. Iftikhar Ibrarhim Qureshi,

Assistant Advocate General.

SARDAR MUHAMMAD SARFRAZ DOGAR, ,J.:- Through this

constitutional petition filed under Article 199 of the

Constitution of the Islamic Republic of Pakistan, 1973,1 read

with Section 561-A of the Code of Criminal Procedure, 1898,2

the petitioner has assailed the order dated 28.06.2023 passed by

learned Duty Magistrate 1st Class, Dera Ghazi Khan whereby he

discharged the respondent No.3/Malik Muhammad Bilal from

the case FIR No.416 dated 10.06.2023 registered for the offences

under section 447, 511 of the Pakistan Penal Code, 1860 3 with

the Police Station Drahma, District Dera Ghazi Khan.

The main thrust of arguments of learned counsel for the

petitioner is that the Duty Magistrate was not empowered to

discharge the accused from the case as he could only authorize

1 The Constitution

2 Cr.P.C

3 PPC

W.P No.15198 of 2023

(Muhammad Bilal v. The State, etc.)

further detention of the accused and if he considered further

detention unnecessary, he could have just forwarded the

accused to a Magistrate having jurisdiction. By arguing so, he

referred section 167 (2) of the Cr.P.C relied upon case laws

titled as “Safdar Hussain v. Judicial Magistrate Section 30,

Ferozewala, District Sheikhupura and 2 others”4

, “Abid

Hussain v. Ikram-ul-Haq Chaudhry and another”5 and “Safdar

Hussain v. Judicial Magistrate and others”6.

Heard. Record perused.

Briefly, the facts of the case are that the petitioner got a

case FIR No.416/2023, under sections 447, 511 of PPC, lodged

with the Police Station Drahma District Dera Ghazi Khan

wherein he alleged that he is owner of his inherited property in

Holding No.255, which after partition has been given Wanda

No.2 on 10.05.2023 and the respondent No.3 attempted to

commit criminal trespass over the said land. During the

investigation of said case, the police arrested the respondent

No.3 on 28.06.2023 and produced him before the Duty

Magistrate 1st Class, Dera Ghazi Khan for his judicial remand,

who instead of granting judicial remand, discharged

respondent No.3 from the case vide order dated 28.06.2023. For

convenience, the main portion of order dated 28.06.2023 is

hereby reproduced hereunder:-

“Police has requested for judicial remand of accused person.

As per record, there is dispute of land between the

complainant and accused person, which shows that the matter

between the parties is of civil nature. Record further shows

4 PLJ 2009 Lahore 354

2005 P Cr.L J 1403

2009 YLR 1078

W.P No.15198 of 2023

(Muhammad Bilal v. The State, etc.)

that during course of investigation, nothing was recovered

from the possession of accused person. It is settled preposition

of law that no one can be detained without concrete evidence.

Moreover, the offence is minor in nature. During

investigation, police has failed to connect the accused person

with the commission of offence. At this stage, no

incriminating material is available against the accused to send

him to judicial lock up, therefore, request of police is hereby

turned down and accused Malik Muhammad Bilal son of

Malik Allah Bakhsh is hereby discharged from the case. He be

released forthwith, if not required in any other case.”

Learned counsel for the petitioner while referring Sub Section

(2) of Section 167 of Cr.P.C laid much emphasis on his

argument that the Duty Magistrate had no jurisdiction to

discharge the accused and he can only forward the accused to

the concerned Magistrate.

After hearing the arguments of learned counsel for the

petitioner, this Court has emphatically noted that the following

moot point needs to be addressed in the lis in hand:-

“Whether a Duty Magistrate is empowered to discharge an

accused produced before him for remand.”

Before proceeding further with the question involved, it is in

the fitness of things to firstly have some discussion on the

classes, appointment, powers and jurisdiction of a Magistrate.

5.A. As per definition of “Magistrate” given in section 4(ma) of

Cr.P.C, "Magistrate" means a Judicial Magistrate and includes a

Special Judicial Magistrate appointed under Sections 12 and 14. As

per Section 6 of Cr.P.C., besides the High Courts and the Courts

constituted under any law other than Cr.P.C for the time being in

force, there are two classes of Criminal Courts in Pakistan,

W.P No.15198 of 2023

(Muhammad Bilal v. The State, etc.)

namely:- (i) Courts of Session; (ii) Courts of Magistrate. As per Sub

Section (2) of Section 6 of Cr.P.C., the Courts of Magistrates have

three classes, namely:- (i) Magistrate of the First Class;: (ii)

Magistrate of the Second Class; and (iii) Magistrate of the Third

Class. The Magistrate is appointed under section 12 and 14 of the

Cr.P.C. Section 12 of Cr.P.C bears the heading of “Subordinate

Magistrates” and as per Sub Section (1) of Section 12 Cr.P.C.,

Provincial Government may appoint as many persons as it thinks fit to

be Magistrates of the first, second or third class in any district, from

time to time, define local areas within which such persons may

exercise all or any of the powers, with which they may respectively be

invested under this Code. Sub Section (2) of Section 12 Cr.P.C,

defines the local limits of jurisdiction and powers of Magistrate

which shall extend throughout the district where they have been

posted.

5.B. Coming to the powers of a Magistrate, the Magistrates have

been given ordinary and special powers to play a role in the processes

like remand, issuance of arrest warrants, search warrants,

proclamation, inquest, bails, recording of statements & confessions,

etc. Such ordinary and special powers are entrusted u/s 36 & 37 of Cr.

P.C which are as follows;

36. Ordinary Powers of Magistrates: All Magistrates have

the powers hereinafter respectively conferred upon them and

specified in the Third Schedule. Such powers are called "their

ordinary powers"

37. Additional powers conferrable on Magistrates: On the

recommendations of the High Court, the Provincial

Government may, in addition to the ordinary powers, invest

any Magistrate with any powers specified in the Fourth

Schedule.”

The mode of conferring powers as mentioned in Section 39 of Cr.P.C

reflects that powers can be conferred upon the Magistrates by the

Provincial Government either by name or by virtue of their office or

W.P No.15198 of 2023

(Muhammad Bilal v. The State, etc.)

classes of officials generally by their official title. Once the power is

given, the Magistrate shall unless the Provincial Government

otherwise directs or has otherwise directed, exercise the same powers

in the local area in which he is so appointed. Until the Provincial

Government withdraws all or any powers once conferred under this

Code on any Magistrate, he shall continue exercising such powers

wherever he is appointed as a Magistrate as ordained in section 40 of

Cr.P.C, which reads as follows:-

40. Powers of officers appointed: Whenever any person

holding an office in the service of Government who has been

invested with any powers; under this Code throughout any

local area is appointed to an equal or higher office, of the

same, nature, within a like local area under the same

Provincial Government, he shall, unless the Provincial

Government otherwise directs, or has otherwise directed,

exercise the same powers in the local area in which he is so

appointed.

From the above discussed statutory provisions, it stands crystal clear

that there exists no “term” as “Duty Judge” or “Duty Magistrate” or

any other provision in the Cr.P.C. which abridges the powers of a

Magistrate duly appointed as such in a District in accordance with the

provisions enumerated above and the term Duty Magistrate is nothing

but alien to the provisions contained in Cr.P.C. However, these terms

i.e. “Duty Judge or Duty Magistrate” are being used in pursuance of

“Distribution of Business” by the Sessions Judge of the District, who

under Section 17 of Cr.P.C can also frame rules or give special orders

consistent with Cr.P.C as to the distribution of business among such

Magistrates because they are subordinate to the Sessions Judge by

virtue of said Section. For ready reference, section 17 of Cr.P.C. is

reproduced verbatim:-

17. Subordination of Magistrates and Benches to Sessions

Judge:

(1) all Magistrates appointed under section 12, 13 and 14 and

all Benches constituted under section 15, shall be subordinate

W.P No.15198 of 2023

(Muhammad Bilal v. The State, etc.)

to the Sessions Judge and he may, from time to time, make

rules or give special orders consistent with this Code and any

rules framed by the provincial government under Section 16,

as to the distribution of business among such Magistrates

and Benches.

(2) All Executive Magistrates appointed under sections 13

and 14 shall be Subordinate to the district Magistrate and he

may, from time to time, make rules or give social orders

consistent with this Code and any rules framed by the

Provincial Government under section 16 as to the

distribution of business among such Magistrates.

(2-A) Every Executive Magistrate (other than a SubDivisional Magistrate) in a subdivision shall also be

subordinate to the Sub-Divisional Magistrate, subject,

however to the general control of the District Magistrate.

(3) Subordination of Assistant Sessions Judges to Sessions

Judge: All Assistant Sessions Judges shall be subordinate to

the Sessions Judge in whose Court they exercise jurisdiction,

and he may, from time to time, make rules consistent with

this code as to the distribution of business among such

Assistant Sessions Judges.

(4) The Sessions Judge; may, also when he himself is

unavoidably absent or incapable of acting, make provision for

the disposal of any urgent application by an additional or

Assistant Sessions Judge and such judge shall have

jurisdiction to deal with any such application.

(5) [Omitted by the Ordinance, XXXVII of 2001, dt:

13.8.2001]

5.C. But, even making of rules in respect of Distribution of business

by the Sessions Judge with respect to performance of duty by an

available Magistrate in case of absence of a Magistrate to whom the

Sessions Judge after making rules or giving social orders has allocated

a specific Police Station or category of cases, does not restraint the

powers of such Magistrate and also ousting of Jurisdiction of such

W.P No.15198 of 2023

(Muhammad Bilal v. The State, etc.)

Magistrate. As such, to all intents and purposes, pursuant to above

discussed provisions of Cr.P.C, it is held that the Magistrate who

passed the impugned order dated 28.06.2023 in absence of Magistrate

to whom the business to deal with was allocated by the Sessions

Judge, had the territorial jurisdiction and jurisdiction of said offence

i.e. offence falling under sections 447/511 of PPC, being triable by

“Any Judicial Magistrate” and his jurisdiction cannot be put to halt on

the misconstruction of said Magistrate’s being “Duty Magistrate”.

Coming to the argument of learned counsel for the petitioner

whereby he while referring the Section 167 (2) of Cr.P.C. questions

the jurisdiction of Duty Magistrate. For the sake of ready reference

and convenience for the upcoming discussion, Section 167 of Cr.P.C.

is reproduced hereunder:-

167. Procedure when investigation cannot be completed in

twenty-four hours:

(1) Whenever any person is arrested and detained in custody,

and it appears that the investigation cannot be completed

within the period of twenty four hours fixed by Section 61,

and there are grounds for believing that the accusation or

information is well founded, the officer incharge of the

police-station or the police-officer making the investigation if

he is not below the rank of the sub-inspector, shall forthwith

transmit to the nearest Magistrate a copy of the entries in the

diary hereinafter prescribed relating to the case, and shall at

the same time forward the accused to such Magistrate.

(2) The Magistrate to whom an accused person is forwarded

under, this section may, whether he has or has not jurisdiction

to try the case, from time to time, authorize the detention of

the accused in such custody as such Magistrate thinks fit, for

a term not exceeding fifteen days in the whole. If he has no

jurisdiction to try the case or [send] it for trial, and

considers further detention unnecessary, he may order the

accused to be forwarded to a Magistrate having such

jurisdiction;

W.P No.15198 of 2023

(Muhammad Bilal v. The State, etc.)

Provided that no Magistrate of the Third Class, and no

Magistrate of the Second Class not specially empowered in

this behalf by the Provincial Government shall authorise

detention in the custody of the police.

(3) ………………

(4) ………………

(5) ………………

(6) ……………….

(7) ……………….

Although, the perusal of above said provision of Cr.P.C restrains a

Magistrate from passing any order other than authorizing the

detention of accused so produced before him, however, it is noted that

the said section in respect of jurisdiction has been misconstrued by the

learned counsel for the petitioner and language of the specific portion

of the said section i.e. “If he (the Magistrate) has no jurisdiction to

try the case or [send] it for trial, and considers further detention

unnecessary, he (the Magistrate) may order the accused to be

forwarded to a Magistrate having such jurisdiction means that

whenever an accused is arrested and produced by the Police before the

nearest Magistrate in order to validate the detention of such accused,

the Magistrate before whom the accused has been produced, if he had

no jurisdiction (territorial jurisdiction) to try the offence or to send it

for trial (in respect of gravity of offence as has been prescribed by the

Cr.P.C) and considers the further detention of the accused so produced

before him unnecessary he would forwarded the accused to a

Magistrate who would have the territorial jurisdiction to try the

offence as well as to send the same for trial before the concerned

Court. The best example can be given while referring the section 186

of Cr.P.C which enables a Magistrate in whose local jurisdiction, an

accused is arrested and the police produce such accused before said

Magistrate, for the purpose of obtaining transitory remand of such

accused from the said Magistrate. Nevertheless, in the case in hand,

the Magistrate had the jurisdiction to entertain the matter and in doing

so he while exercising the powers conferred upon him under section

W.P No.15198 of 2023

(Muhammad Bilal v. The State, etc.)

63 of Cr.P.C (in respect of discharge of accused) passed the impugned

order in accordance with law. For the purpose of convenience, section

63 of Cr.P.C is reproduced hereunder for ready reference:-

63. Discharge of person apprehended. No person who

has been arrested by a police-officer shall be discharged

except on his own bond, or on bail, or under the special

order of a Magistrate.

Law requires Magistrate to judicially examine the police report and to

act fairly, justly and honestly. He is supposed to go through the

material collected during investigation, see its admissibility in

evidence and then to pass an order in accordance with law. Magistrate

is not supposed to rely upon the case diary or a piece of document not

admissible in evidence e.g. confession of accused before the Police

Officer which evidence is not admissible under articles 38 and 39 of

the Qanun-e-Shahadat, Order 1984.7

Learned counsel for the petitioner has failed to put forth any

viable legal as well as factual reason or ground which could have put

a question mark upon the jurisdiction of said Magistrate. In respect of

subject being discussed in this case in hand, the findings of Division

Bench of this Court passed in case titled “Abdul Sattar v. Amir

Muhammad Khan and others”8

are, however, more instructive.

Relevant excerpt therefrom is reproduced hereunder:-

“After hearing the arguments of both the sides and going

through the record, we have observed that while deciding the

question of grant of physical remand, Judge Anti-Terrorism

Court-II Multan, had directed the Investigating Officer to

delete Section 7 of the Anti-Terrorism Act, 1997 while acting

as Duty Judge. The Duty Judge enjoys the same powers as the

incumbent Judge enjoys. While deciding the question of

remand, the concerned Court is not expected to act blindly

2012 P.Cr.L.J. 1335

PLD 2007 Lahore 444

W.P No.15198 of 2023

(Muhammad Bilal v. The State, etc.)

and as such orders are expected to be passed with due

application of judicial mind. Impugned order cannot be set

aside simple on the ground that the same was passed by the

Duty Judge.”

(Emphasis added)

In view of what has been discussed above, impugned

order dated 28.06.2023 warrants no interference by this Court,

hence, instant petition having no force, is dismissed.

(SARDAR MUHAMMAD SARFRAZ DOGAR)

JUDGE

APPROVED FOR REPORTING

JUDGE

*رمشوز یلع

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