Bail Granted in a case when FIR was lodged after 5 days

PLJ 2013 Cr.C. (Karachi) 704

Present: Dr. Rana Muhammad Shamim, J.

Mst. ZAREENA--Applicant

versus

STATE--Respondents

Crl. Bail Appln. No. S-625 of 2008, decided on 13.10.2008.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(1)--Bail, grant of--Murder case--No eyewitnesses and no specific role was attributed--FIR was lodged after delay of five days--Lady having one year suckling baby--Allegations were ill-founded, vague and general in nature--Validity--Incident of murder was un-witnessed and there was no even last seen evidence available on record and if it would be available then same would had been a week piece of evidence, unless prima facie series of circumstantial evidence connecting her with commission of alleged crime was available on record--Accused being a woman was entitled for grant of bail.          [P. 707] A

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(1)(i)--Inserting first proviso to S. 497(1)--Bail, grant of--Prohibits grant of bail--Scope of--No restriction for releasing on bail to any woman accused if there appears reasonable ground to believe that she was not guilty of offence and her case of further inquiry--As per Ordinance (XIV of 2007) the woman involved of an offence of murder, an act of terrorism and financial corruption could be released on bail if she had been detained for continuous period of six months and where trial had not been concluded unless in opinion of Court, such delay in trial was not caused by accused or any person acting on her behalf--Accused was entitled for concession of bail and her case required further inquiry as well as on ground of being woman having suckling baby--Bail was allowed.         [P. 708 & 709] B & G

Bail--

----Not punitive in nature--No legal and moral bar to keep people in detention for indefinite period without trial--Question of grant refusal of bail was to be determined judiciously having regard to facts and circumstances of each case--Where accused satisfied the Court and appeals to prudent mind that there were no reasonable ground to believe that accused was not guilty of such offence an basis of material on record then Court must release on bail.  [P. 708] C

Bail--

----Prima facie--Benefit of doubt--Accused had committed alleged offence but reasonable doubt exist to believe that accused had not committed the offence--Held: It is settled law that benefit of reasonable doubt can be extended to accused even at bail stage.       [P. 708] D

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497(1)(i)--Bail, grant of--Accused was in prison with suckling baby without trial--No satisfactory reparation for unjustified incarceration--Accused can't be detained in jail for indefinite period as her children were suffering hardship without mother--Remaining in prison pending trial and subsequently she was acquitted--No satisfactory reparation would be offered to her for unjustified incarceration at any stage and if she was released on bail and at end of trial prosecution succeeded and she was convicted then state can be compensated subsequently of mistaken relief extended to her while taken her in custody and sending her to prison to serve out sentence so awarded.           [P. 708] E

Bail--

----Concession of bail to women specially who was with suckling baby shall never be with held--Bail to accused being lady was granted although she had committed murder of her husband with help of her paramour, inspite of fact that deceased husband disclosed the name of accused before death.         [P. 709] F

Mr. Raja H.R. Naurang, Advocate for Applicant.

Mr. Rehmatullah Hisbani, Advocate for State.

Date of hearing: 13.10.2008.

Order

This bail application is directed against the impugned bail order dated 4.9.2008, whereby the bail to the applicant was refused.

The facts briefly stated in the FIR lodged by complainant Muhamamd Shabir Ansari on 26.4.2008 at 1700 hours that he along with his uncle Muhammad Ashraf and his family also reside with him while his Taya Abdul Salam was residing at Karachi. Bundo Qazi is fast friend of Muhammad Ashraf and both of them were on visiting terms with Fida Hussain and his wife Mst. Zareena r/o Noorani Basti, Hyderabad and usually they both stayed in their house. After some time, Fida Hussain and his wife Mst. Zareena shifted to near Hali Road, Sabzi Mandi, Hyderabad where Muhammad Ashraf and Bundo Qazi used to visit them. On 10.4.2008 at about 9.00 or 10.00 a.m. Ashraf and Bundo left Hyderabad for Karachi to purchase the animals. Muhammad Ashraf had Rs.15,000/- with himself. They both did not return for 3/4 days on which complainant enquired from his Taya Abdul Salam who after enquiries replied them that Muhammad Ashraf and Bundo Qazi had not come to Karachi. Thereafter Abdul Salam also arrived at Hyderabad and they all searched for Muhammad Ashraf and Bundo Qazi and came to know that Muhammad Ashraf, Bundo Qazi and Mst. Barkat Bano alias Kalo had gone to Thatta for Ziarat purpose. On approach to Mst. Barkat Bano alias Kalo she informed the complainant party that she had gone to Karachi to met her relatives where Bundo Qazi having some amount in hand came with him and offered her to accompany him for Thatta and that Muhammad Ashraf is waiting at bus stop. Mst. Barkat Bano alias Kalo further disclosed that then they three persons came at Thatta at the shrine of Abdullah Shah and was stayed night in a musafar Khana and in the morning she leaving Muhammad Ashraf and Bundo Qazi at Thatta came to Hyderabad, thereafter complainant party searched Muhammad Ashraf and Bundo Qazi. On 20.11.2008 Yousif a relative of Bundo Qazi called the complainant in the house of Bundo Qazi and informed him that he met with Muhammad Ashraf on way to Sabzi Mandi, Hali Road, Hyderabad, who requested him for giving Rs.20/- to him on which Yousif told Muhammad Ashraf that he and Bundo Qazi are being searched by the complainant party to which Muhammad Ashraf told Yousif that he will be in his house at 3.00 or 4.00 p.m. On this complainant waited for his uncle Ashraf but he did not come to his house and in the night complainant alongwith Waheed son of Bundo Qazi and Molvi Shahid visited house of Fida Hussain at Holi Road who told that Bundo Qazi and Muhammad Ashraf had not come there. On 21.4.2008 complainant's father and Saeed S/o Bundo Qazi after Fajjar prayer visited the house of Fida Hussain where Fida Hussain was not available but his wife Mst. Zareena informed them that Fida Hussain had left for to search of Bundo Qazi and Muhammad Ashraf at 4.00 a.m. (mid night). According to the complainant, thereafter they both returned to home when at about 1200 hours two constables of Police Station, Pinyari came and disclosed that Site police has recovered the dead body of Muhammad Ashraf from Phuleli river and is lying at Civil Hospital. On this complainant alongwith others visited Civil hospital and was informed that the dead body was recovered at 1110 hours from Phuleli river. The complainant identified the said dead body to be of his uncle Muhammad Ashraf, who had no visible injuries on his person. The dead body after post mortem was handed over for burial and during bath to dead body it revealed that bone of forehead was broken. After burial of dead body on 24.4.2008 Waheed S/o Bundo Qazi informed the complainant party that dead body of his father Bundo Qazi was recovered by Husri police from Phuleli canal. Thereafter complainant lodged FIR that Fida Hussain and his wife Mst. Zareena due to some unknown reasons have murdered his uncle Muhammad Ashraf and then thrown his dead body in Phuleli canal and that dead body be exhumed and its post mortem be conducted.

Police after usual investigation submitted challan against three accused showing applicant/accused Mst. Zareena in custody, co-accused Fida Hussain as absconder and co-accused Mst. Barkat Bano alias Kalo as shown in Column No. II.

Learned counsel for applicant contends that the applicant is innocent and has falsely been implicated in the case malafidely for ulterior motives; that the allegations are ill-founded, vague and general in nature; that there is no eye-witnesses and no specific role has been attributed to the applicant; that the FIR has been lodged after the delay of five days and no plausible explanation has been offered for such delay that who prevented them to promptly lodge FIR; that she is a lady having one year suckling baby and six other children; there is no material on record to show that she has committed the alleged offence, but there exists sufficient grounds for further inquiry into the guilt of the applicant for entitling her for concession of bail. Further, she is also entitled for the grant of bail on the ground of being women as provided in the first proviso to sub-section (1) of Section 497, Cr.P.C. He further submits that mere pendency of another criminal case does not dis-entitled her for grant of bail unless conviction is recorded in the said case.

The learned State counsel frankly conceded for the grant of bail on twofold grounds that no specific role has been assigned to the applicant secondly the allegations against her are ill-founded and she, being a women having suckling baby and small children-would also entitles for the grant of bail.

I have heard the learned counsel for the applicant as well as learned State counsel and perused the material available on record.

The allegations against the applicant are ill-founded, vague and general in nature as no specific role has been attributed to her in the alleged offence. The story as set up by the complainant in the FIR, prima facie, is not believable at this stage unless the evidence at trial is recorded. The incident of murder is un-witnessed and there is no even last seen evidence available on record and if it would be available then the same would have been a week piece of evidence unless prima facie series of circumstantial evidence connecting her with the commission of the alleged crime is available on record. Further, she being a woman is entitled for the grant of bail. If history of Section 497, Cr.P.C. is traced out, the law makers in the year 1926, amended Section 497, Cr.P.C. by inserting  first  proviso  to  sub-section  (1)  of Section 497, Cr.P.C. that a person under the age of 16 years, women or any sick, or infirm person may be, released on bail who is accused of an offence punishable with death, imprisonment for life or imprisonment for ten years. Subsequently, Ordinance XIV of 2007 was promulgated which prohibits the grant of bail to woman if there appears reasonable grounds to believe that she is guilty of an offence relating to terrorism, financial corruption and murder which is punishable with death, imprisonment for life or imprisonment for ten years. However, there is no restriction for releasing on bail to any woman accused if there appears reasonable ground to believe that she is not guilty of the offence and her case of further inquiry. However, as per the aforementioned Ordinance, 2007 the woman involved of an offence of murder, an act of terrorism and financial corruption could be released on bail, if she has been detained for a continuous period of six months and whose trial has not been concluded unless in the opinion of the Court, such delay in trial was not caused by the applicant/accused or any person acting oh her behalf.

In my humble view the provisions of Section 497, Cr.P.C. are, otherwise, not punitive in nature. There is no legal and moral bar to keep the people in detention for indefinite period without trial. Consequently there is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case, where the accused satisfies the Court and appeals to the prudent mind, that there are no reasonable grounds to believe that he/she is not guilty of such offence on the basis of material on record then the Court must release him/her on bail.

Admittedly in this case, no prima facie material is available on record to show that the applicant has committed the alleged offence, but reasonable doubt exist to believe that she has not committed the alleged offence. It is settled law that benefit of reasonable doubt can be extended to the applicant, even at bail stage as held in PLD 1972 SC 277 and PLD 1995 SC 34. Further, the applicant was arrested on 12.6.2008 and since then she is in prison with her suckling baby without trial which amounts to punishment before judgment. It cannot be ruled out that in our society there is tendency to involve innocent persons with the guilty. Once an innocent person is falsely involved in a serious case then he/she has to remain in jail for considerable time. Normally it takes months and years to conclude the trial. She can't be detained in the jail for indefinite period as her children are suffering hardship without mother. In case, she remains in prison pending trial and subsequently she is acquitted, no satisfactory reparation would be offered to her for her unjustified incarceration at any stags of the case and if she is released on bail and at the end of trial, the prosecution succeeds and she is convicted then the State can be compensated subsequently of mistaken relief extended to her while taking her in custody and sending her to prison to serve out the sentence so awarded.

As regards the concession of bail to women especially who is with suckling baby shall never be withheld. While saying so I am fortified with the case of Mst. Raisa v. State (1985 P.Cr.L.J. 23), the bail to the applicant being lady was granted, although she had committed the murder of her husband with the help of her paramour, inspite of the fact that the deceased husband disclosed the name of applicant and her paramour before his death. In the case of Mst. Babo Jana v. State (1990 P.Cr.L.J, 326), this Court had granted bail to a lady, whose case fell within first proviso to sub-section (1) of Section 497, Cr.P.C. inspite of the fact that she was arrested at the spot for attempted to smuggle out five Kgs of heroin powder, in which the capital punishment is provided under the special law.

In view of the above, the applicant is entitled for the concession of bail and her case requires further inquiry as well as on the ground of being woman having suckling baby.

The bail was allowed to the applicant accordingly subject to furnishing solvent surety in the sum of Rs.200,000/- (Rupees two lacs) and PR bond in the like amount to the satisfaction of learned trial Court vide short order dated 13.10.2008 and these are the reasons for the same.

(A.S.)   Bail allowed