I. The question of remand in cases exclusively triable by the Anti-Terrorism Court is governed by Section 21-E of the ATA but Section 167 of the Code and the relevant considerations shall also be applicable as much as those are not inconsistent with the provisions of ATA.
II. The remand of an accused can only be granted when he is produced before the Magistrate. No remand order should be passed by the Magistrate in the absence of an accused.
III. It is the bounden duty of the Magistrate to apply her/his independent judicious mind to the facts and circumstances of the case to arrive at the decision, whether the physical remand should be granted or refused. Application of an independent judicious mind being sine qua non must be reflected in the order passed by the Magistrate and for that purpose, the case diaries and other documents available on the record must be examined to arrive at a just decision.
IV. The Magistrate must pass a speaking order while dealing with the question of grant or refusal of physical remand, furnishing cogent and convincing reasoning as the grant of remand to police custody is not a rule, but an exception, therefore, the accused can only be handed over to investigating agency in cases of real necessity and that too for the shortest possible time required for investigation.
V. Before granting remand, the Magistrate should ensure that prima facie evidence is available on the record to connect the accused with the commission of the offence in question and the physical custody of the accused is necessary for the collection of further evidence.
VI. In case the Investigating Officer seeks an extension in physical remand, the Magistrate should examine the progress since the previous order(s), as the longer the accused person has been in custody the stronger should be the grounds required for further remanding him to the police custody. If no investigation was conducted after having obtained the physical remand, further remand should be refused.
VII.The accused must be given a fair opportunity to oppose the request of the Investigating Officer regarding the grant of remand himself or through his counsel. His objections should be brought on the record and the Magistrate should ensure that no physical harm is caused to him during police custody.
VIII. To strike a balance, between the needs of a thorough investigation on the one hand and the protection of the citizens from the oppressive attitude of the Investigating Agency, on the other hand, is the foremost duty of a Magistrate dealing with the question of grant or refusal of physical remand.
Crl. Revision67181/23Mansha Ali Vs The State etc. Mr. Justice Ali Zia Bajwa 24-10-2023 2023 LHC 6054
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