JABIR KHAN vs THE STATE
This matter arises from three criminal miscellaneous petitions filed by the petitioner, Jabir Khan, seeking post-arrest bail in multiple FIRs concerning alleged theft and lurking house-trespass by night under the Hudood Ordinance and the Pakistan Penal Code. The core legal question revolves around whether an arrested accused can be indefinitely detained awaiting the arrest of absconding co-accused, and whether the offences charged merit further inquiry under section 497 of the Code of Criminal Procedure. The court held that an accused cannot be incarcerated indefinitely without trial simply because co-accused have not been apprehended, and that the case against the petitioner warranted further inquiry as the value of Nisab for the Hudood provision was not established. Consequently, the court admitted the petitioner to post-arrest bail, laying down the principle that investigative delays or failure to arrest co-accused cannot justify indefinite detention without trial, and that cases lacking definitive statutory thresholds for specific penal provisions attract further inquiry under bail jurisprudence.
- Whether an arrested accused can be kept behind bars for an indefinite period awaiting the arrest of absconding co-accused?
- Does the failure to establish the value of Nisab under the Hudood Ordinance make a case one of further inquiry for the purpose of bail?
- Whether offences under section 14 of the Hudood Ordinance and section 457 of the Pakistan Penal Code fall within the prohibitory clause of bail?
- Section 9, Hudood Ordinance 1979
- Section 14, Hudood Ordinance 1979
- Section 457, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' SAHIB KHAN, J.--- These Criminal Miscellaneous Nos.149, 150, 151 of 2008 have been filed by petitioner/accused Jabir Khan seeking his bail on the cases under F.I.Rs, Nos.112 of 2008, 114 of 2008 and 153 of 2008 under sections 9/14 of Hudood Ordinance, 1979 and section 457 of P.P.C.
2. F.I.R. No,112 of 2008 has been lodged by S.H.O. Cantt. On the complaint of one Zaidur Rehman for committing theft by unknown person from his shop on 28-7-2008. The value of stolen property has been shown worth Rs,1,04,500. The investigation agency has held responsible of the crime, the petitioner along with other co-accused namely Mehboob and Abdullah. F.I.R. No,114 of 2008 has been lodged by the S.H.O. Cantt. Gilgit on 28-6-2008, on the report of shop-keeper Iqbal Ghazi, in his complaint he has claimed the value of stolen property from his shop to be Rs,33,680. The investigating agency has also involved the petitioner along with two co-accused namely, Abdullah and Mehboob. F.I.R. No,153 of 2008 has been lodged by the S.H.O. Cantt. On the report of Ghulam Sarwar in his report, the complainant has alleged the value of stolen property worth Rs,55,000 from his shop on 28-7-2008, and according to the investigation the above three accused are again involved in the occurrence.
3. I heard the arguments of the learned counsel for the parties. The counsel for the petitioner submitted that his client is behind the bar since his arrest and police has not submitted challan against him. Moreover, the petitioner has not been named in the F.I.R. And the occurrence has allegedly been taken place at night time therefore, no body has been shown as eye-witness, in the F.I.Rs, He referred PLD 1994 Pesh. Page 84, 1996 MLD (Lahore) page 633, 2001 PCr.LJ (Peshawar) page 1982, PLD 2002 SC page 590, 1994 PCr.LJ (Lahore) page 1724 in support of his contention.
4.. It is forcefully argued that police has not submitted the challan of these cases yet. To know the position, I called the concerned Police Investigator and inquired about non-submission and delay in submission of the challan, he replied that since two co-accused have not yet been arrested, hence the challan against the petitioner could not be submitted. It is alarming situation that if one or more accused persons involved in a case could not be arrested or absconded for indefinite period then the arrested person/persons can be kept behind the bar without any trial and, whether the Criminal Procedure Code does not provide any solution of the situation? Or the persons deputed for such important duties are blank and knowledge less, likewise their superiors have no concern over the affairs, therefore, they never bother to keep eye over the sensitive duties of the subordinates. The relevant provision of Cr.P.C. Providing especially for the above said situation is reproduced:--- "If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or send for trial to the Court of Session or High Court such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable."
5. Government of Pakistan has spent a lot of money in strengthening the system of Northern Areas, especially in police department drastic changes by opening of new branches are seen, in spite of existence of full-fledge Investigation Wing, C.I.D. Wing and Special Branch Wing, I feel no change/improvement in the investigation of crimes and in the arrest of offenders. Non arrest of two persons belonging from Gilgit City involved in above three cases is open air threat to the society that the police has nothing to do with control the crimes and produced the offenders before the Court of law but, waiting for promotion and other privileges. It has been stated before me that there is lack of force in the police station to arrest the accused; therefore, the investigator could not raid for arrest of accused and neither other Wings support him by providing secret report regarding the whereabouts of accused.
6. The big bosses of subordinate officer ever have bothered to inspect and to know about the routine duties of force? Under the prevailing judicial system one cannot allow to keep a person without any framing of charge or initiate trial, waiting arrest of his co-accused for indefinite period.
Therefore, law of equity, demands an equitable relief to the petitioner.
7. In this case as till now it could not be established by the prosecution, the value of Nisab required for enforcement of section 9, Hudood Ordinance nor the required evidence as required by law for enforcement of above provision of law has not been shown. The case is yet to be seen whether section 9 is applicable or not. So far the section 14 of Hudood Ordinance and section 457, P.P.C.
Concern, both of sections do not fall under the proviso II of section 497, Cr.P.C. The case against the petitioner requires further inquiry, hence he is released on bail subject to his furnishing bail bond a sum of Rs,2,00,000 with two sureties in the like amount to the satisfaction of vacation Magistrate 1st Class, Gilgit. File.