State organs must protect privacy of home: SC

The top court has held that all organs of the state, judiciary included, should enforce the laws that protect the privacy of home as failure to provide protection to citizens in their houses will amount to the failure of the state.

“It would be the worst position of a society if its people do not feel safe and secure even within their houses. All organs of state, including judiciary, should therefore enforce the laws protecting privacy of home strictly in letter and spirit," said the five-page order authored by Justice Syed Mansoor Ali Shah.

Justice Shah issued the order while leading a division bench that heard the post arrest bail application of Hilal Khattak, who allegedly trespassed into the house of his cousin, Ali Akbar, earlier this year.

The order said it is the sanctity and privacy of home, as guaranteed by Article 14 of the Constitution of Pakistan, that the offences of house-breaking—committed after preparation for causing harm or fear of harm have been categorised by the legislature as grave offences.

Such an offense is punishable by up to 10 years in prison—under section 455—if committed in daytime and punishable by up to 14 years in prison—under section 458—if committed at night.

"It is said that the house of everyone is to him as his castle and fortress as well as for his defence against injury and violence as for his repose," the judgment said.

The case

Rabia Khattak, daughter of Hilal Khattak—the petitioner—had married Talha Akbar, the son of Akbar Ali, without the consent of her father.

On January 1, 2023, in the early hours of the morning at about 06:45, Hilal along with some other persons—all armed with pistols—trespassed into Akbar Ali’s house by scaling a wall.

Later, Hilal and his brother Tufail allegedly dragged Rabia into the street with her hair. Talha attempted to rescue her, but one of the trespassers opened fire on him, an injury which later caused his death.

Hilal also fired a shot at Akbar Ali but missed. Another attacker also hit Akbar’s younger son, Huzaifa, on his head. The petitioner and other persons later abducted Rabia.

Bail is rejected

The court noted that it is true that in such offences, bail is to be granted as a rule, but not as of right.
It said bail can be refused in such offences when the case of the accused falls within any of the three well established exceptions: (i) likelihood to abscond to escape trial; (ii) likelihood to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice; and (iii) likelihood to repeat the offence.

It said in the present case, the petitioner being the father of the alleged abductee appears to have had the real motive for commission of the alleged offences while the others abetted him in his cause.

"Most of the other accused persons are absconders, and the police have so far only succeeded in bringing the petitioner and another accused person to justice.

“There is thus a likelihood that the petitioner may also abscond if he is released on bail. Further, and more importantly, the alleged abductee, Rabia Khattak, has not yet been recovered.

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"No one knows whether she is alive or not. There is a possibility that the petitioner may cause her harm or may coerce her to influence her evidence concerning the facts of this case if he is released on bail.

“The exceptions of likelihood of repeating the offence and influencing the witness are thus also attracted. The case of the petitioner, therefore, attracts not one but almost all the three exceptions which justify the declining of bail even in offences that do not fall within the prohibitory clause of Section 497(1), CrPC [Code of Criminal Procedure]," said the judgment.

The court also noted that facts alleged in the FIR prima facie constitute the offence of house-breaking by night after preparation for causing hurt, punishable under Section 458 of the Pakistan Penal Code (PPC), instead of Section 452 of the PPC.

"The petitioner and his accomplices allegedly committed house-breaking, that is, trespassed into the complainants’ house by scaling the wall of the house, as defined in clause 2 of Section 445 and that housebreaking was also committed by night, that is, after sunset and before sunrise, as defined in Section 446, PPC.

“The offence under Section 458 of the PPC being punishable with imprisonment up to fourteen years falls within the prohibitory clause of Section 497(1) of the CrPC. Therefore, even if the actual role of the petitioner is considered, his case also falls within the prohibitory clause."

"We feel constrained to observe that the non-recovery of the alleged abductee, Rabia Khattak, despite the lapse of a period of about five months since the day of occurrence, is a serious matter, which demands the immediate attention of the superior police officers of the Islamabad Police.

"We, therefore, direct the Inspector General, Islamabad Police, to personally look into the matter and depute a police officer not below the rank of Superintendent of Police to supervise the investigation of the case and to ensure recovery of the alleged abductee at the earliest,” it said.