Law:

Section:

Facts, briefly stated, are that vide F.I.R. 40 Police Station Oghi dated 18-3-1993 there was registered a murder case against Hafizur Rehman accused by one Abdur Rehman brother-in-law of Speen Gul deceased. Hafizur Rehman accused was arrested the same day in a 'Bazar' and a .30 bore Pistol the alleged crime weapon was recovered from him which was onwards sent to Arms Expert alongwith 2 crime empties recovered from the spot and a positive report was received from the Arms Expert. On 19 - 3-1993 Hafizur Rehman was produced before the Magistrate and he was remanded to police custody for 3 days with direction for production before the Court on 22-3-1993, that on that date the accused was produced with an application that he was ready to make a judicial confession but on appearance before the Magistrate the accused did not make a confession and as such he was remanded to judicial custody till 5-4-1993. On the day the S.H.O. applied for his further judicial remand due to incomplete investigation and the Magistrate ordered the accused's judicial custody in prison till 19-4-1993 that once again the Magistrate remanded the accused to the judicial custody till 29-4-1993. On 29-4-1993 the accused was produced in Court and was sent to judicial lock-up to be produced on 10-5-1993 that thereafter on 10-5-1993 Magistrate remanded the accused to judicial custody till 22-5-1993. It is pertinent to point out that the accused was not produced before the Magistrate on 5-4-1993, 19-4-1993 and 10-5-1993 that he was sent to further judicial custody on those dates.

2.  Hafizur Rehman accused-petitioner was refused a bail by the Courts below on merits and apparently there could not be taken any exception to those orders due to the ocular evidence furnished by the P.Ws. referred to its the F.I.R. and one Burhan, a third person, the Arms Expert report, recoveries and motive etc. Learned counsel for the accused-petitioner raised a point that accused has been remanded to judicial custody by the Magistrate on three specified occasions in the absence of his physical attendance by the Magistrate which amounted to accused's illegal confinement and detention and as such he was entitled to bail as of right. In support of his above contention he placed reliace on an unreported judgment of this Court dated 23-9-1989 in Cr. M.No.147 of 1998 Raja Muhammad Farid etc. v. State PLD 1989 Pesh. 43, Asif Mehmood alias Kuko and another v. The State and 1992 PCr.IJ 357, (Peshawar). On the other hand it was argued that for remand to judicial custody by a Magistrate the physical attendance of an accused is not a mandatory requirement and that herein the accused has been last remanded to judicial custody by a valid order passed in his due presence and attendance and that even otherwise the accused is not entitled to bail as of right on the so called ground of illegal confinement, moreso, when found involved in a murder case punishable with death or imprisonment for life. In support reliance was placed on 1993 PCr.LJ 43, PLD 1980 Lah. 127. AIR 1971 SC 178. AIR 1973 SC 850 and 1981 SCMR 267.