What is Remand?
In the criminal justice system of Pakistan, remand refers to the lawful detention of an accused person by the order of a magistrate or court during the course of investigation or trial. It is a crucial procedural aspect that balances the rights of the accused with the necessity of a fair and thorough investigation. The concept of remand is primarily governed by the Code of Criminal Procedure, 1898 (CrPC) and supported by constitutional safeguards.
Types of Remand:
There are three main types of remand in Pakistan:
1. Police Remand (Physical Remand)
Police or physical remand refers to the custody of the accused being granted to the police for the purposes of investigation. This type of remand is sought when the police require the accused for further interrogation or for recovering evidence.
Legal Provisions:
Article 10 of the Constitution ensures that no person shall be detained beyond 24 hours without being presented before a magistrate.
Section 167 of CrPC governs the procedure when the investigation cannot be completed within 24 hours.
Key Provision of Section 167 CrPC:
A magistrate may authorize police custody up to 15 days in total. If the magistrate does not have jurisdiction to try the case, they may forward the accused to a competent magistrate. Importantly, only a magistrate of the first class or specially empowered second class can authorize physical remand.
Female accused cannot be remanded to police custody except in cases involving qatl or dacoity, and even then, special precautions must be taken.
Safeguards and Judicial Guidelines:
In the landmark case of Ghulam Sarwar v. The State (1984 P Cr. L J 2588), the Lahore High Court laid down eighteen guiding principles to regulate police remand under Section 167 CrPC. Some significant principles include:
Police remand should only be granted on strong and exceptional grounds and for the shortest possible duration.
The magistrate must record reasons for granting remand and forward a copy of the order to the Sessions Judge.
If no investigation was conducted during the remand, the Magistrate shall refuse to grant further remand to the police.
The magistrate must examine the police file, hear the accused, and must not allow remand mechanically, for the sake of cooperation with police.
These principles aim to prevent abuse of police powers and protect the fundamental rights of the accused.
Torture During Remand
Police officials are strictly prohibited from torturing an accused during remand. Any act of torture while the accused is in custody constitutes a criminal offense under the Torture and Custodial Death (Prevention and Punishment) Act. If a police officer is found to have subjected an accused to torture during remand, they may be prosecuted under this law and held criminally liable, facing appropriate punishment upon conviction.
2. Judicial Remand
Judicial remand refers to the detention of an accused in judicial custody, typically in a jail, on the orders of the magistrate. This type of remand is ordered when the court deems further detention necessary but does not authorize custody with the police.
Legal Basis:
Governed by Section 344 CrPC, which allows the court to postpone or adjourn proceedings if necessary and to remand the accused in custody.
Key Provision of Section 344 CrPC:
The court may remand the accused for a maximum of 15 days at a time, and each order must be in writing, signed by the presiding judge or magistrate.
- The accused remains in judicial custody till the conclusion of the trial, except when he is released on bail.
- When an accused has been sent to judicial remand, he can not be remanded back into the custody of the police.
3. Transitory Remand
Transitory remand refers to the temporary custody of an accused by the police for the purpose of transportation from the place of arrest to the jurisdiction of the concerned court.
This is a procedural necessity when an accused is arrested in a different city or province. The local magistrate may grant police custody to facilitate the accused’s journey to the area where the original case is registered.
Purpose and Scope:
Ensures legal custody during transit.
Prevents unlawful detention during travel.
Acts as a bridge custody until the accused is produced before the competent court.
Though not elaborately discussed in statutes, transitory remand is judicially recognized and plays a vital role in inter-jurisdictional investigations.
Conclusion
Remand is a fundamental component of Pakistan’s criminal procedure, designed to uphold both the efficiency of investigations and the rights of the accused. While police remand facilitates effective evidence collection, it is bound by strict judicial scrutiny to prevent misuse. Judicial remand, on the other hand, offers a more secure form of custody, maintaining a balance between individual rights and procedural requirements. The accused may apply for the post-arrest bail during the judicial remand for his release. Transitory remand ensures the lawful handling of suspects across jurisdictions.
Magistrates, prosecutors, and defense counsel must remain vigilant to ensure that remand is not used arbitrarily or punitively. By adhering to constitutional guarantees and judicial principles, the remand process can serve the ends of justice without compromising individual rights.