PLJ 2023 SC (Cr.C.) 238
[Appellate Jurisdiction]
Present: Syed Mansoor Ali Shah and Mrs. Ayesha A. Malik, JJ.
Mst.
GHAZALA--Petitioner
versus
STATE and another--Respondents
Crl. P. No. 54 of 2023, decided on
22.2.2023.
(Against the judgment of the Peshawar High Court, Peshawar
dated 19.12.2022, passed in Bail Petition No. 3875-P of 2022)
Criminal Procedure Code, 1898 (V
of 1898)--
----S.
498--Pakistan Penal Code, (XLV of 1860), Ss. 302, 325, 200, 201, 182, 109
34--Woman--No prohibitory clause--Post arrest bail--grant of--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), Cr.P.C--Grant of bail to the
petitioner u/S. 497(2), Cr.P.C, under which the bail
is granted an accused as of right--There are no reasonable grounds for believing
that the accused has committed the offence--Under Section 497(1), Cr.P.C, 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.
[Pp.
239 & 240] A & B
PLD 2022 SC 764; PLD
1995 SC 34; 2009 SCMR 1488; PLD 2017 SC 733; PLD 2021 SC 799 ref.
Criminal Procedure Code, 1898 (V
of 1898)--
----S. 498--Woman--Right of bail--
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. [P. 239] A
Criminal Procedure Code, 1898 (V
of 1898)--
----S. 498--No prohibitory clause--The bail is to be granted as
a rule and refused only as an exception in the case which do not fall within
the prohibitory clause of Section 497(1), Cr.P.C. [P. 240] B
Criminal Procedure Code, 1898 (V of 1898)--
----S.
498--Bail--Grant of bail to the petitioner under Section 497(2), Cr.P.C, under which the bail is granted an accused as of
right.
[P.
240] B
Syed Rifaqat Hussain Shah, ASC/AOR
for Petitioner.
Arshad
H. Yousafzai, ASC for Complainant.
Mr. Zahid
Yousaf Qureshi,
Additional A.G., Faqir Gul,
DSP and Sabr Ali, I.O. for the State.
Date of hearing: 22.2.2023.
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 (“P.P.C.”) 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,
P.P.C. alleged against the petitioner falls within the prohibitory clause of
Section 497(1) of the Code of Criminal Procedure, 1898 (“Cr.P.C.”)
but being a women, the petitioner’s case is covered by the first proviso to
Section 497(1), Cr.P.C. The said proviso, as held in Tahira Batool case,[1]
makes the power of the Court to grant bail in 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), Cr.P.C. 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), Cr.P.C. 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), Cr.P.C., 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), Cr.P.C.,
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.
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), Cr.P.C. if the petitioner
misuses it in any manner, including the causing of delay or otherwise hindering
the expeditious conclusion of the trial.
(K.Q.B.) Bail granted