TARIQ JAVAID BUTT Versus STATE

ORDER

The petitioner is involved in case F.I.R. No. 63 of 1994, dated 27‑4‑1994 under section 17/22 of the Emigration Ordinance, 1979 registered at Police Station, F.I.A. Passport Cell, Lahore and has filed post‑arrest bail petition under section 497/491 read with section 561‑A, Cr.P.C. seeking the post‑arrest bail on the ground that the detention of the petitioner in the jail has become illegal.

2. The allegations against the petitioner are; that an Inquiry No.475 of 1993, dated 1‑11‑1993 was carried out against him and the Inquiry Officer came to the definite conclusion that the petitioner had received Rs.1,25,000 from Jaffar Hussain son of Mohsin Hussain in the presence of the witnesses on the pretext that the complainant shall be given an employment abroad. Jaffar Hussain on 7‑9‑1993 had gone with the petitioner to Iran, Turkey and thereafter to Balgharia. The petitioner had disappeared from there on the pretext to make arrangements for providing him Visa for France. The emigrant was left alone there and had become destitute in a foreign country till he had made arrangements to come back to his own country. After coming back to the country, the petitioner was approached for the repayment of the money, who flatly refused to pay back the money obtained by him through fraud. The instant case was registered against him after completing all the legal formalities.

3. The petitioner applied for post‑arrest bail petition in the Court of Special Judge (Central), Lahore which was declined on 12‑10‑1994. The petitioner, thereafter, filed another post‑arrest and the same was declined by this Court vide order dated 30‑1‑1995.

4. The learned counsel for the petitioner has vehemently argued his case on the ground that the petitioner was arrested in the instant case on 31‑7‑1994 and was remanded to judicial lock‑up on 4‑9‑1994 under section 344, Cr.P.C. and since then he is in the judicial lock‑up. Further, argued that since 4‑9‑1994 the petitioner is in the jail without any remand order of the Court of competent jurisdiction. He claims that the detention of the petitioner having been illegal, he has become entitled to the concession of bail. Further, elaborates that the remand of the petitioner to custody sine die tentamounts to the illegal detention. He relied upon Mukhtar Ali v. The State 1990 PCr.LJ 555; Ayub v. The State 1992 PCr.LJ 357 and Ghulam Qasim v. The State 1993 PCr.LJ 2066.

5. On the other hand, the learned counsel appearing on behalf of the State has half‑heartedly opposed the contentions of the learned counsel for the petitioner.

6. I have heard the arguments of both the learned counsel at full length and have also perused the record very minutely with their assistance and also gone through the cited case‑law.

7. The only point for enlargement of the petitioner on bail as argued before me is that the detention of the petitioner has become illegal due to the non‑compliance of the provisions of section 344, Cr.P.C. Admittedly the petitioner was arrested on 31‑7‑1994 and since then he is in the judicial lock‑up. The perusal of the record indicates that he was produced in the Court of Special Judge (Central), who vide his order dated 4‑9‑1994 passed under section 344, Cr.P.C. remanded the petitioner to custody and had adjourned the matter sine die. The record further indicates that no request for remand was made, thereafter, nor he was produced before the learned Special Judge (Central) or any other competent Court. On the other hand, the case after the investigation, statedly has been sent to the Federal Government to obtain sanction for prosecution, which is still awaited. The provisions of section 344, Cr.P.C. are to comply with by the Illaqa Magistrate as well as by the learned Special Judge (Central) as the case may be with a distinction of period of adjournment. But there is no restriction to 15 days for the learned Special Judge (Central). Admittedly no remand of the case under section 344, Cr.P.C. has been taken since 4‑9‑1994, the day he has committed to custody under the orders of the learned trial Court. The relevant section 344, Cr.P.C. reads as follows:‑‑‑

"344. Power to postpone or adjourn proceedings. ‑‑‑(1) If, from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:

Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time.

(2) Every order made under this section by a Court other than a High Court shall be in writing signed by the Presiding Judge or Magistrate."

8. The mere reading of section 344, Cr.P.C. makes it abundant clear that the detention of the petitioner in the jail without obtaining any order from the Court of competent jurisdiction under section 344, Cr.P.C. would be patently illegal.

9. In view of the above discussion and the circumstances of the case, I have no option but to hold the detention of the petitioner as illegal. Since the petitioner is accused of substantive offence, his trial is yet to take its due course, therefore, I allow the petitioner to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 (Rupees two lacs) with two sureties in the like amount to the satisfaction of the learned trial Court.

N. H. Q./T‑114/L ??????????????????????????????????????????????????????????????????????????????????????????? Bail granted.