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| Bail of women in murder case. |
Honorable Supreme Court clear a point that prohibited clause not for woman under section 497crpc
Supreme court released on bail woman,
Who was alleged to involve in husband murder.
Supreme court set aside the orders of High Court.
High Court orders was based on that the offense fall in prohibited clause and sufficient material is available on record to connect her with offence.
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Women bail in 302 case law Judgement.
SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Bench-V:
Mr. Justice Syed Mansoor Ali Shah
Mrs. Justice Ayesha A. Malik
Crimnal Petition No.54 of 2023.
(Against the judgment of the Peshawar High Court, Peshawar
dated 19.12.2022, passed in Bail Petition No.3875-P/2022)
Mst. Ghazala
... Petitioner
Versus
The State & another
... Respondents
For the petitioner:
Syed Rifaqat Hussain Shah, ASC/AOR.
For the complainant:
Mr. Arshad H. Yousafzai, ASC.
For the State:
Mr. Zahid Yousaf Qureshi, Addl. A.G.
Mr. Faqir Gul, DSP & Mr. Sabr Ali, I.O.
Date of hearing:
22.02.2023
ORDER
Syed Mansoor Ali Shah, J.- The petitioner seeks leave to
appeal against an order of the Peshawar High Court, dated 19.12.2022,
(“impugned order”) whereby the High Court while dismissing the bail
application of the petitioner has denied to her the post arrest bail in case
FIR No.968 registered at Police Station Sher Garh, District Mardan, for the
offences under Sections 302, 325, 200, 201, 182, 109 and 34 of the
Pakistan Penal Code 1860 (“PPC”) and the offence under Section 15 of the
Khyber Pakhtunkhwa Arms Act 2013.
2.
Briefly stated, the allegation against the petitioner is that she
in connivance with the co-accused, Imran Ullah, has caused death of her
husband, Muhammad Arif.
3.
We have heard the learned counsel for the parties and
examined the record of the case.
4.
No doubt, the offence of Qatl-i-amd (intentional murder)
punishable under Section 302 PPC alleged against the petitioner falls
within the prohibitory clause of Section 497(1) of the Code of Criminal
Procedure 1898 (“CrPC”) but being a women, the petitioner’s case is
covered by the first proviso to Section 497(1), CrPC. The said proviso, as
held in Tahira Batool case,1 makes
Cr.P. 54 of 2023.
2
the offences of prohibitory clause of Section 497(1) alleged against an
accused under the age of sixteen years, a woman accused and a sick or
infirm accused, equal to its power under the first part of Section 497(1),
CrPC. It means that in cases of women accused etc. as mentioned in the
first proviso to Section 497(1), irrespective of the category of the offence, the
bail is to be granted as a rule and refused only as an exception in the same
manner as it is granted or refused in offences that do not fall within the
prohibitory clause of Section 497(1), CrPC. The exceptions that justify the
refusal of bail are also well settled by several judgments of this Court.2 They
are the likelihood of the accused, if released on bail: (i) to abscond to escape
trial; (ii) to tamper with the prosecution evidence or influence the
prosecution witnesses to obstruct the course of justice; and (iii) to repeat
the offence.
5.
That being the legal position, we have asked the learned
Additional Advocate General and the learned counsel for the complainant to
show how the petitioner’s case falls in any of the said three well-established
exceptions. They, however, could not explain and satisfy the Court as to
which one of the said exceptions is attracted to the petitioner’s case. Their
only response was that there is a sufficient incriminating material available
on record of the case to connect the petitioner with the commission of the
alleged offence. We are afraid, the response is misconceived. The Court is
not considering the grant of bail to the petitioner under Section 497(2),
CrPC, under which the bail is granted to an accused as of right if it appears
to the court that there are no reasonable grounds for believing that the
accused has committed the offence alleged against him rather there are
sufficient grounds for further inquiry into his guilt. For the purpose of
deciding the prayer for grant of bail in exercise of the discretionary power of
the court under Section 497(1), CrPC, the availability of a sufficient
incriminating material to connect the accused with the commission of the
offence alleged against him is not a relevant consideration.
6.
In view of the facts and circumstances of the case, we do not
find that there is a likelihood that the petitioner if released on bail, after
securing sufficient sureties, would abscond to escape trial, or tamper with
the prosecution evidence or influence the prosecution witnesses to obstruct
the course of justice, or repeat the offence. Her case, thus, does not fall
within any of the three well-established exceptions that may have justified
refusing bail to her.
2 Tariq Bashir v. State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488;
Muhammad Tanveer v. State PLD 2017 SC 733 and Iftikhar Ahmad v. State PLD 2021 SC 799
Cr.P. 54 of 2023.
3
7.
For the above reasons, we find that the High Court has passed
the impugned order while disregarding the settled principles of law
regulating the discretion of the courts in regard to the grant of bail to
women accused. The present petition is, therefore, converted into appeal
and the same is allowed. The bail application of the petitioner is accepted
and she is admitted to bail subject to her furnishing bail bond in the sum
of Rs.100,000/- with two sureties in the like amount to the satisfaction of
the trial court.
8.
Needless to mention that this concession of bail may be
cancelled by the trial court in the exercise of its power under Section 497(5)
CrPC if the petitioner misuses it in any manner, including the causing of
delay or otherwise hindering the expeditious conclusion of the trial.
Islamabad,
22nd February, 2023
Approved for reporting
Sadaqat
Judge
Judge
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