Mst. FAUZIA HAVEED vs THE STATE
This matter concerns a post-arrest bail petition filed by a female accused facing charges under sections 302, 324, and 34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner, a woman detained for over one year without the conclusion of her trial, was entitled to bail under the statutory provisions introduced by Ordinance XIII of 2006. The court held that the petitioner was entitled to the concession of bail. The ratio decidendi established that under the third proviso to section 497 of the Code of Criminal Procedure 1898, a woman accused of an offence must be released on bail if she has been detained for a continuous period of six months and her trial has not concluded, provided the delay in the trial is not attributable to the accused. The court further clarified that the abscondence of a co-accused does not bar the court from granting bail to an accused who has otherwise accrued the statutory right to such relief due to the prolonged detention and delay in trial proceedings.
- Does the abscondence of a co-accused prevent a female accused from being released on bail when the statutory period of detention has expired?
- Under what conditions is a female accused entitled to bail under the third proviso to section 497 of the Code of Criminal Procedure 1898?
- Is the delay in trial attributable to the accused a relevant factor in determining the right to statutory bail for a female detainee?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
- Ordinance XIII of 2006
- Section 173, Code of Criminal Procedure 1898
ORDER
' RAJA SAEED AKRAM KHAN, J.---Petitioner seeks her post-arrest bail in case F.I.R. No,247 dated 29-8- 2007 registered under sections 302, 324/34, P.P.C. At P.S. Industrial Area (Islamabad).
2. Learned counsel for the petitioner has argued that the petitioner is innocent and she is behind the bars for the last more than one year, whereas, trial has yet not been concluded, therefore, she is entitled for the bail concession as statutory right, given under Ordinance XIII of 2006, whereby an amendment was made in section 497, Cr.P.C. That the petitioner was arrested on 29-8-2007, challan in her case was submitted on 10-4-2008, charge was framed against her on 11-10-2008 and uptil now not single witness has been recorded, whereas, delay in trial is not attributable to her.
3. On the other hand, learned counsel for the complainant has opposed the bail petition, on the grounds that the petitioner is nominated in the F.I.R. With specific role; that the petitioner had actively participated in the occurrence of double murder case; that each and every case should be decided on its own merits; that there is apprehension of her abscondance; that main accused is still absconder, who could not be arrested despite adopting all measures by the Court; that trial of the case is in progress and on last date of hearing statement of one P.W. i.e, doctor has been recorded.
4. Learned Federal Counsel has adopted the arguments, advanced by learned counsel for the appellant.
5. Arguments heard. Record perused
6. Admittedly, petitioner is behind the bars since her arrest and trial of the case has yet not been concluded. 22-Witnesses are mentioned in the report under section 173, Cr.P.C, out of which only one has been recorded. An amendment was introduced in section 497, Cr.P.C. Through Ordinance No, XIII of 2006, which is in the shape of third proviso, read as under:-- "Provided further that where a woman accused of an offence is refused bail under the foregoing proviso, she shall be released on bail if she has been detained for a continuous period of six months and whose trial for such offence has not been concluded, unless the Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on her behalf."
' Bare reading of above proviso, shows that in case a woman accused is detained in jail for continuous period of six months and her trial has yet not been concluded, she shall be released on IA bail, provided delay is not attributable to her.
7. Statutory period has expired much earlier and delay in trial is not attributable to the present petitioner, therefore, she has accrued right of bail. Reliance is placed on case re: Ghulam Sakina v.
The State, reported as 2007 M LD 860. Mere abscondence of co-accused would also not bar the Court from extending concession of bail, if otherwise same has become right of the accused.
Reliance can be placed on case re: Rajada v. The State, reported as 2005 PCr.LJ 570 (Lahore).
8. Resultantly, this petition is accepted and the petitioner is admitted to bail, subject to furnishing bail bonds valuing Rs,1,00,000 (one lac), with two local sureties, in the like amount to the satisfaction of learned trial Court.