SHAH JEE and another vs THE STATE and anothers
The petitioners, charged under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 452, 427, and 34 of the Pakistan Penal Code 1860, sought post-arrest bail after their earlier applications were dismissed by the lower forums. The core legal question was whether the petitioners were entitled to bail when the charged offences did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 and they had been incarcerated since their arrest without the likelihood of an early trial. The Peshawar High Court allowed the application and held that offences not falling within the prohibitory clause warrant the grant of bail as a rule, and an accused cannot be kept in jail as a hostage because a co-accused or family member is absconding. The key principle laid down is that the submission of a challan alone is no ground to refuse bail when the case falls outside the prohibitory clause, and penalizing an accused for the abscondance of another is impermissible.
- Whether bail should be granted when the offences charged do not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Can an accused person be kept in jail as a hostage due to the abscondance of a family member or co-accused?
- Does the mere submission of a challan in court constitute a sufficient ground to refuse post-arrest bail?
- Section 14, Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 452, Pakistan Penal Code 1860
- Section 427, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 114, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' IJAZ-UL-HASSAN KHAN, J.--- The petitioners, involved in case F.I.R. No,21 registered under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 452/427/34, P.P.C. At Police Station Qulangai, Malakand, were refused the concession of bail by the forums below vide orders dated 10-9-2005 and 30-9-2005. Feeling aggrieved thereby, the petitioners have approached this Court with the similar prayer.
2. Mr. Muhammad Salim Khan, Advocate for the petitioners, invited my attention to case F.I.R. No,20, dated 26-8-2005 registered at Police Station Qulangai, Malakand under sections 302/324/34/114, P.P.C., regarding murder of father of the petitioners at the hand of Jamil Ahmad son of Rahmatullah and attempted to argue that the entire case against the petitioners has been manipulated with sole object to pressurize them to effect compromise with Jamil Ahmad. The learned counsel also contended that except the bare allegations in the F.I.R. There is nothing on the file which could connect the petitioners with the crime in question. To supplement the contentions, reliance was placed on Nazir Nadeem v. The State 2002 PCr.LJ 160; Abdul Hameed Khan v. The State 2003 PCr.LJ 1302; Nasir Baig v. The State 2003 PCr.LJ 1306 and Gulap Khan v. The State PLD 2004 Pesh.
125.
3. As against that, Mr. Obaidulla Anwar, learned Additional Advocate-General for the State assisted by Mr. Sahibzada Asadullah, Advocate, for the complainant, bitterly opposed the bail application maintaining that the petitioners stand directly nominated in the promptly lodged report for the commission of crime; that challan has already been submitted in Court and that relief of bail has been refused to the petitioners for valid reasons.
4. Be that as it may, without highlighting merits of the case, I find that the petitioners are in jail ever since their arrest on 2-9-2005. The offences for which petitioners are charged do not fall within the prohibitory clause of section 497, Cr.P.C. The mere fact that challan has already been submitted in Court, by itself, cannot be considered a good ground to refuse the concession of bail to an accused person, if otherwise his case is found fit for the grant of bail. Again, the petitioners cannot be allowed to remain in jail as hostages for the reason that one of their brothers is absconding in this case.
' The application is allowed and the petitioners are directed to be released on bail on furnishing bail bonds in the sum of Rs,3,00,000 (three lacs) with two sureties each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.