Mst. NASEEM AKHTAR vs THE STATE
This matter arises from a petition for pre-arrest bail filed by an elderly female petitioner seeking relief in a criminal case registered under sections 380 and 411 of the Pakistan Penal Code 1860 at Police Station Defence Area, Lahore. The core legal question concerns whether the petitioner, an old parda-observing lady involved in a civil property and demarcation dispute with the complainant, is entitled to confirmation of pre-arrest bail. The Lahore High Court held that the petitioner made out a case for confirmation of bail, noting her advanced age, the fact that the offences do not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898, her participation in the police investigation, the existence of a pending civil suit between the parties suggesting the criminal case was a pressure tactic, and the improbability of her commission of the offence. The court laid down the principle that an old lady may be granted bail under relevant statutory provisions where offences fall outside the prohibitory clause and mala fides in criminal prosecution stemming from a civil dispute are apparent.
- Whether an old lady is entitled to pre-arrest bail when the offences charged do not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Does the pendency of a civil suit between the parties affect the grant of bail in criminal proceedings arising out of the same subject matter?
- Whether joining the police investigation and lack of incriminating evidence support the confirmation of pre-arrest bail?
- Section 380, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
' MUHAMMAD MUZAMMAL KHAN, J.---Petitioner was refused post-arrest bail by the learned Additional Sessions Judge on 18-9-2007 in case against her vide F.I.R. No.242, dated 1-3-2006 under sections 380, 411, P.P.C. Registered with Police Station, Defence Area, Lahore. She, thereafter, filed instant petition for the same relief and she was admitted to ad-interim pre arrest bail on 21--2007 which has now been fixed for confirmation.
2. Charge against the petitioner is that she along with her 10/12 companions damaged constructions of the complainant and removed his valuable articles including 15 Split Air- Conditioners and other household goods, on 27-2-2006 when the complainant was not present at the place of occurrence.
3. I have heard the learned counsel for the parties and have examined the police record.
Undisputedly, petitioner owns Plot No.73 adjoining the Plot No.73-1/C owned/possessed by the complainant and there is some dispute of demarcation between the parties. Petitioner is an old lady of 60 years of age and resides at Shalimar Link Road, Lahore, far away from the place of occurrence. Her husband Javed Khalid Bhatti was out of country from 21-2-2006 to 8-10-2006 and in this situation, A commission of the offences charged is not probable. By virtue of Ordinance XXXV of 2006 petitioner being an old lady is entitled to the concession of bail especially when she has already joined the police investigation and the offences reported to have been committed, are not covered by prohibitory clause of section 497, Cr.P.C. There is no incriminating evidence against the petitioner, and the statement of the only prosecution witness namely Muhammad Nawaz under section 161, Cr.P.C. Hardly connects the petitioner with the occurrence as he is not related or known to the petitioner and had no reason to be present at the spot. Civil suit inter parties is reported to be pending and it appears that criminal prosecution of the petitioner has been created to generate pressure on her. Prima facie, arrest of the petitioner who is an old Parda-observing Lady would expose her to humiliation/inconvenience/ disrepute in the eyes of her relations and pubic- at-large, especially when case against her is not made out.
4. For the reasons noted above, petitioner has a case for confirmation of her bail before arrest and consequently instant petition is allowed and bail before arrest already given to her on 21-9-2007 is confirmed.