SHC recommends withdrawal of administrative powers from judge who refused police Armaghan’s remand

KARACHI: The Sindh High Court on Tuesday ruled that the orders passed by the administrative judge of anti-terrorism courts (ATCs) in Karachi about the judicial remand of suspect Armaghan and the formation of a joint investigation team in the Mustafa Amir murder case were against the law and recommended to withdraw the administrative powers from the judge.

While referring the matter to the acting chief justice and home secretary, the SHC observed that the powers of administrative judge might be withdrawn from the judge of ATC-I and assign it to any other ATC in the public interest and administration of justice.

A two-judge bench headed by Justice Zafar Ahmed Rajput also noted that initially, the administrative judge passed orders for police custody remand of the prime suspect, but a few hours later he used correction pen on words “police custody” remand and made hand correction “JC” remand, only initials.

On Feb 18, the bench had allowed a set of criminal revision applications, filed by the prosecution impugning the orders of the administrate judge of the ATC denying physical custody of Armaghan and ordering the formation of the JIT to probe the case, through a short order. The detailed judgement was issued on Tuesday.

Bench rules ATC judge’s decision was ‘illegal and arbitrary’

The bench noted that as per facts of the case, after obtaining search warrant from a magistrate police raided the house of Armaghan on Feb 8 and managed to apprehend him after an encounter that left two policemen injured and on the following day police got his one-day transitory remand from the area magistrate and on Feb 10 brought him before the administrative judge for physical remand.

However, the administrative judge declined the same merely on the complaint of the suspect about maltreatment at the hands of police.

The judgment also stated that police custody remand was a pre-trial step allowing investigating officer to collect evidence and complete the investigation as it was an important part of criminal justice system since it helps to connect suspects with the crimes and build cases for prosecution.

The only ground for granting remand by a magistrate or administrative judge is to see the nature of accusation and grounds to believe that the same are well-founded against the accused/suspect, it added.

The bench further observed that for the present case, sufficient grounds were available to believe that the accusation or information against the accused/suspect was well-founded for justifying police custody for further investigation since the suspect acted within the meaning of “terrorism” as defined in the relevant law, caused bullet injuries to a DSP and police constable and heavy arms and ammunition were recovered from his house as mentioned in remand reports while he also had a previous criminal record.

It said that the suspect had also complained about maltreatment before the SHC and he was asked to remove his shirt, but no visible sign of maltreatment causing bodily harm was found on the upper part of his body and thereafter, the suspect said that he was beaten on lower part of his body.

A report issued by a medico-legal officer suggested bruises and abrasions on various parts of the suspect’s body, but the MLO did not opine if the same were caused on account of any maltreatment and as per the IO, he had sustained such bruises at the time of his arrest upon offering resistance, it added.

The SHC also observed that even in such state of affairs, the proper course available for the administrative judge was to remand the suspect in police custody for a short term and order medical examination of the suspect and if any bodily harm was found in such report, the administrative judge was competent to take action in accordance with law against the IO instead of remanding the suspect to judicial custody to frustrate and defeat the investigation of heinous offences.

It further said that the administrative judge also passed impugned remand orders on the remand reports and the same were not in his handwriting but in typed form and he used a correction pen to replace “police custody” with “JC”.

The acting prosecutor general has orally stated that at the time of remand, the father of suspect was sitting in the chamber of the administrative judge for two hours and it was a subsequent act of the latter who changed his police custody remand orders in JC (judicial custody) remand, it added.

Besides, it said that none of the parties made any request for formation of a JIT, the administrative judge was not empowered under the law to order constitution of a JIT as it was the prerogative of the government to set up the same, if necessary.

“For the foregoing facts and reasons, we are of the considered view that the administrative judge has failed to appreciate the request of second IO for grant of police custody remand of the accused, therefore, impugned orders granting remand of accused in judicial custody instead of police custody are illegal, arbitrary and against the law, which are also likely to affect the investigation of the above crimes,” the order said.

“Before parting with his order, it would be in the fitness of the things to direct the learned Registrar of this Court to place copy of this Order before the Honorable Acting Chief Justice, High Court of Sindh and Home Secretary, Government of Sindh for passing appropriate order, if deem fit and proper in the circumstance of the case, for withdrawing the power of Administrative Judge for Anti-Terrorism Courts, Karachi Division, from the Anti-Terrorism Court-I Karachi (by designation) and assign it to any other Anti-Terrorism Court of Karachi Division under section 13 (2) of the Act of 1997 in public interest and administration of justice,” it concluded.

Published in Dawn, February 26th, 2025