HUMAIRA FAIZ BIBI vs THE STATE
The petitioner sought pre-arrest bail in a cross-version case registered under sections 302, 201, 109 and 34 of the Pakistan Penal Code 1860 at Police Station Kotwali, District Jhang, relating to the murder of her husband. The core legal question concerned the legal validity of a differing opinion by a verifying police officer substituting the finding of innocence given by the investigating officer, and whether the petitioner was entitled to pre-arrest bail as a woman under the Code of Criminal Procedure 1898. The Lahore High Court held that under the principle established in Khizar Hayat v. I.-G., Punjab, PLD 2005 Lah. 470, a verifying officer cannot substitute the opinion of the investigating officer with a new finding of guilt in the guise of verification. The court ruled that the opinion of innocence by the investigating officer held the ground, rendering the case one of further inquiry, and confirmed the interim pre-arrest bail in favor of the petitioner, noting the statutory leniency provided for women under the relevant provisions.
- Can a verifying police officer substitute the opinion of innocence given by an investigating officer with a finding of guilt?
- Does a conflict of opinion between an investigating officer and a verifying officer make a criminal case one of further inquiry for the purpose of bail?
- Is a female accused entitled to statutory leniency under the Code of Criminal Procedure 1898 regarding pre-arrest bail?
- Section 302, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
- Section 109, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' SYED SHABBAR RAZA RIZVI, J.---Petitioner filed this pre-arrest bail application in cross-version recorded on 2-3-2005 in F.I.R. No,83 dated 12-2-2005 under sections 302, 201, 109 and 34, P.P.C. At Police Station Kotwali, District Jhang. The said F.I.R. Was registered on the complaint of one Imdad Ali wherein it was alleged that complainant's brother-in-law Faiz Muhammad was murdered by Muhammad Iqbal. However, cross version was recorded on the complainant of one Imtiaz Hussain wherein it was alleged that the deceased Faiz Muhammad was actually murdered on the abetment of Imdad Ali and by accused Ghulam Abbas, Gulshan alias Gosha and the present petitioner, wife of the deceased Faiz Muhammad. The reason of murder is narrated illicit relationship of petitioner with Ghulam Abbas co-accused.
2. The learned counsel for the petitioner submits that cross version is based on a false story and it is an attempt to shield the accused persons mentioned in the F.I.R. Learned counsel submits that Investigating Officer, Muhammad Sharif, S.-I. Declared the petitioner innocent but when the file went to D.S.P., Investigation for verification he declared the petitioner guilty which is not permitted under the law. He further submits that there is no evidence available to connect the petitioner with the commission of offence under section 109, P.P.C. He also submits that section 497 itself, provides leniency as the first pfoviso is fully attracted in favour of the petitioner.
3. On the other hand, learned counsel for the complainant in the cross version submits that petitioner is fully involved in this case. The story in the F.I.R. Is false and it is not supported even by Shahbaz, a witness mentioned in the F.I.R. He further submits that Dawood Baig, A.S.-I., Masud Maan, S.H.O. And D.S.P., Investigation have declared the petitioner guilty.
4. I have heard the learned counsel for the parties and also consulted record with their help.
According to the opinion of Muhammad Sharif, S.-I./I.O., the petitioner is innocent. Thereafter investigation was never transferred formally to any other officer, D.S.P., Investigation while verifying the investigation of the said Sub-Inspector gave his own opinion whereby he declared the petitioner guilty. In a Full Bench judgment of this Court reported in Khizar Hayat v. I.-G., Punjab, PLD 2005 Lah. 470, it has been held that an illegal and wrong practice is prevailing whereby in the name of verification findings and opinions are being given by the police officers. According to the learned Full Bench verification can be done only of the record but in the name of the verification opinion cannot be substituted by the verifying officer with the opinion of the Investigation Officer.
Therefore, the opinion of the D.S.P., Investigation has no legal backing and opinion of Muhammad Sharif, S.-I. Holds the ground. The above facts make the present case of the further inquiry. Even otherwise proviso to section 497, Cr.P.C. Itself demands leniency towards a woman.
5. In view of the above discussion and reasons, the interim bail already granted to the petitioner vide order, dated 20-2-2006, is confirmed subject to petitioners furnishing fresh surety bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the trial Court.