P L D 1975 Karachi 151 (PLP)

This is a reference by the IInd Additional Sessions Judge, Larkana recommending that the proceedings under section 109, Cr. P. C. pending against both the respondent in the court of Mukhtiarkar and F. C. M. Dorki be quashed, as the order passed against them under section 112, Cr. P. C. was illegal and not justified by the facts and circumstances of the case.

2. The facts of the case in brief are that on .4‑2 1973 A. S. 1, Ghulam Abbas alongwith H. C. Sahawal Khan, H, C. Ali Martian and P. C. Hakimali left the police station at 11‑00 p.m. for going on patrol duty. Half an hour after mid‑night the party reached the bridge of Dadu Canal and waited there. At about 2‑00 a.m. the two respondents were seen crossing the bridge. They were stopped and interrogated. They could not give satisfactory account of themselves. While respondent Sharbat was carrying one hatchet and two chhapurs, Punhal was armed with one hatchet only. The respondents were arrested and sent up with a complaint before the Mukhtiarkar & F. C. M., Dokri who there and then passed an order under section 112, Cr. P. C. stating therein that the respondents were taking precautions to conceal their presence and could not give satisfactory account of themselves and they had in their possession the hatchets and chhapurs which were instruments ordinarily used for commission of offence. They were accordingly called upon to show cause why they should not be required to execute bonds in the sum of Rs. 1,000 each with two sureties who should be land‑owners paying land revenue of Rs. 500 per annum and residing within the radius of 5 miles.

3. The question arises that, when a. person on being ordered by the police to stop, attempts to escape or cannot give sufficient reasons for his presence at the spot or is carrying a weapon of offence, he can be legitimately arrested by the police and sent up under section 109, Cr. P. C. The section being restrictive of the liberty of the subjects must be applied only when it is strictly applicable. It is the duty of Courts to see that the fundamental rights of citizens in respect of their freedom from arrest are not jeopardised by the arbitrary action of the police, and they are not detained in custody whenever the police desire to do so. The section is not meant to be used for confining suspects and bad characters in jail. Section 109, Cr. P. C. refers to a continuous course of conduct and not to a momentary effort at concealment to avoid detection or arrest. A person under this section becomes liable when he "takes precautions to conceal his presence" within the jurisdiction of the Magistrate with a view to commit any offence, or he is not in a position to give satisfactory account of himself. This cannot be presumed if a! person going openly on the road at night runs away on being challenged by a police officer. This is not a type of concealment envisaged by section 109(a). In I L R 49 All. 249, it was observed as follows :‑‑ "It is an entire mistake to read clause (a) of section 109 of the Code of Criminal Procedure as applying to any person who takes steps to conceal himself, in the sense of concealing his presence in the way in which a criminal conceals his presence when he goes in the dark, or by a deserted road, or by some other secret means to commit a crime in his own neighbourhood. The offence contemplated is that a person, probably though not necessarily, coming from outside the jurisdiction into the Magistrate's jurisdiction for nefarious purpose, takes precautions to conceal the fact that he is present in that jurisdiction." Another case is reported in Reshu Kaviraj v. The King‑Emperor (22 C, W N 163). In that case the petitioner was found at midnight in association with two others who had in their possession house‑breaking implements. On being dis covered he fled, and when arrested remained silent, and the explana tion he subsequently gave to the Magistrate of his presence at the time and place in question was false. It was held on those facts that the petitioner did not come within section 109 of the Code. Shamsul Ruda, J. in the decision expressed the view that clause (a) of section 109, Cr. P. C. referred to a continuous act and did not, therefore, apply to a cash where there was a momentary effort at concealment to avoid detention or arrest. In P L D 1962 Dacca 611, both the above decisions were relied upon. It was held in the Dacca ease that since there was no continuity and also there was nothing to indicate that the petitioner was taking precautions to conceal that he was present in the jurisdiction of the Magistrate, the hiding was a momentary affair, and the charge under section 109, Cr. P. C. had not been driven home to the petitioner.

4. In P L D 1964 Kar. 384 similar point was raised that the expression in clause (b) of section 109, Cr. P. C. i.e. "who cannot give satisfac tory account of himself", did not refer to the explanation of the momentary behaviour of a person. His Lordship Inamullah, J. (as he then was) relying on the majority view of the Full Bench decision of 5 Judges of the Allahabad High Court in Emperor v. Phuchi and others (A I R 1929 All. 33), observed ac under: "If the words "give a satisfactory account of himself" are given the meaning "explain what he was doing" or "explain his conduct" at any particular time or place it would make the scope of section 109 (b) too wide. On such an extended interpretation of the expression a man could be bound over merely because he does not discharge the burden of satisfying a Magistrate as to his conduct at a particular time or place. It means failure to explain one's course of conduct as distinguished from failure to explain a momentary behaviour." I am, therefore, in agreement with the above view that the wordings o section 109, Cr. P. C. do not refer to or suggest one stray instance of a person having been caught in an act of concealment at night, but contemplate continuous course of conduct of a person trying to conceal his presence within the local limits of Magistrate's jurisdiction with a view to commit an offence. Momentary effort of cancealment or being found at night in possession of implements of house‑breaking or failure to explain a momentary behaviour, are isolated acts which do not fall within the purview of section 109, Cr. P. C. Such cases were dealt with by the Police in this province under section 61‑D of the Bombay District Police Act (Bombay Act IV of 1890) as long as that Act remained in force. Now that the Act is no longer applicable, resort is being had to the provisions of preventive detention under the Code of Criminal Procedure, which were not meant for cases of this type.

5. For the reasons discussed above, the reference is accepted, the proceedings under section 109, Cr. P. C. are hereby quashed and it is ordered that the respondents be set at liberty if not required in any other case. S. A. H. Reference accepted.