Investigation officer has no power to get drafted the case diaries from his subordinates. Similarly, it amounts to delegate his power to someone else which is not a mandate of law.

 2023 YLR 382

Investigation officer has no power to get drafted the case diaries from his subordinates. Similarly, it amounts to delegate his power to someone else which is not a mandate of law.

In the Code of Criminal Procedure, 1898, there are two sections which deal with remand of an accused to custody explicitly sections 167 and 344.

The former section deals with grant of remand to police custody and the latter deals with grant of remand to judicial custody. Section 167, Cr.P.C. describes that if investigation is not completed within 24 hours, the period fixed in section 61, Cr.P.C., the S.H.O. shall forthwith remit a copy of the entries in the case diary to the nearest Magistrate and "shall at the same time forward the accused to such Magistrate". It is noteworthy that this section is coincide with Article 10 of the Constitution of Islamic Republic of Pakistan, 1973.

According to section 167(3), Cr.P.C. while granting the physical custody to police the Magistrate shall record his justification for granting remand whereas in the case in hand neither the contention of accused has been mentioned nor any plausible reasoning has been given by him for granting physical remand. To understand the difference between section 167, Cr.P.C. and section 344, Cr.P.C.

In that backdrop, learned Duty Magistrate was under obligation to perform his duty in accordance with law because a liberty of a person was involved in this case and it was incumbent upon him that while allowing the physical remand of the alleged detenu it was his prime duty to go through the evidentiary material collected by the police and presented before it but he overlooked this aspect of the matter and passed the remand order in mechanical manner. without observing the law on the subject.

It is settled proposition of law that physical remand of an accused person in a criminal case can only be granted when sufficient incriminating material is available which connect him with the commission of crime.

High Court converted the application filed under section 491, Cr.P.C. into section 497, Cr.P.C. in the light of Rule 3 Part-F, Chapter 4, High Court Rule and Orders Volume 5.

There is no provision in the Code of Criminal Procedure, 1898 with respect to supplementary statement. Even otherwise, supplementary statement can not be equated with the FIR.