Mst. SHAMAN vs THE STATE
This is a post-arrest bail application filed under Section 497 of the Code of Criminal Procedure 1898 on behalf of Mst. Shaman, who was charged in Crime No. 47 of 2004 at Police Station Hala under Sections 372 and 373 of the Pakistan Penal Code 1860 and Sections 13 and 14 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979 for allegedly purchasing a minor girl for prostitution. The core legal question was whether the applicant made out a case for further inquiry under Section 497(2), Cr.P.C., considering the disputed recovery, the lack of private mashirs, and the denial by the co-accused parents. The Sindh High Court allowed the bail application, holding that the case fell within the scope of further inquiry given the evidentiary gaps regarding the alleged purchase and recovery, coupled with the fact that the applicant was a female in custody for over five months. The key principle laid down is that where the prosecution case rests on questionable recovery without independent witnesses and is disputed by co-accused parents, the matter warrants further inquiry, entitling the accused to post-arrest bail.
- Whether the absence of private mashirs for an alleged recovery from the accused makes the case one of further inquiry under Section 497(2), Code of Criminal Procedure 1898?
- Is a female accused entitled to bail when the case against her requires further inquiry and she has been in custody for several months?
- Whether denial of the prosecution case by co-accused parents constitutes grounds for post-arrest bail?
- Section 497, Code of Criminal Procedure 1898
- Section 497(1), Code of Criminal Procedure 1898
- Section 372, Pakistan Penal Code 1860
- Section 373, Pakistan Penal Code 1860
ORDER
1. ' ANWAR ZAHEER JAMALI, J. Applicant Mst. Shaman daughter of Shamshad Pathan has moved this application under section 497, Cr.P.C. For grant of bail in Crime No,47 of 2004, Police Station, Hala, wherein she has been booked for commission of offence punishable under sections 373, 372, P.P.C.
2. And section 13/14 Offence of Zina (Enforcement of Hudood) Ordinance, 1979.
3. ' According to the prosecution case on 30-7-2004 A.S.-I. Ghulam Shabir Shaikh of Police Station, Hala, during patrolling received spy information, that the applicant is a prostitute, she has purchasbd a little girl about 4/5 days ago for the purpose of prostitution and she was taking her to her house. On such information he apprehended the applicant along with the minor girl in presence of two police mashirs. Upon inquiry made by the complainant, the applicant disclosed that she has purchased the little girl in the sum of Rs,25,000 from Bhan Saeedabad for the purpose of prosecution. The Applicant, who was arrested on the same day viz: 30-7-2004, is in custody since then. The police after usual investigation has submitted challan against her and the parents of girl before the trial Court.
4. ' Mr. Mumtaz Alam Leghari submits that no doubt the appellant is nominated in a case, which falls within the prohibitory clause of section 497(1), Cr.P.C. But from the contents of the complaint, it is evident that it is a concocted story, which has been foisted on the applicant by A.S.-I. Ghulam Shabir Shaikh due to his enmity with the brother of the appellant. He submits that both the mashirs of alleged recovery of, little girl aged about 5 years from the applicant are police personnel and further the parents for the girl who have also been joined as co-accused, have also not supported the prosecution case. He further submits that the case of the applicant needs further inquiry as to her guilt, as it is yet to be seen that whether at all the little girl was recovered from the custody of the applicant. He also submits that the applicant being female, and now in custody for over five months, is also entitled for grant of bail on this ground.
5. ' Mr. Rasheed A. Qureshi, learned Asstt. A.-G. Sindh has vehemently opposed this bail application.
6. He contended that there are reasonable grounds to believe that the girl aged about 5 years was purchased by the applicant from her parents so as to groom her for the purpose of prostitution.
7. After going though the whole case record, I am of the opinion that at this stage when the parents of the girl have also A disputed the case of prosecution and they have been joined as co-accused in the crime, case of the Applicant as to her involvement in the commission of offence needs further inquiry. It is yet to be seen whether the little girl was purchased by .The applicant, whether she was recovered from her custody and whether she was, though aged only 4/5 years, was to be used in future for the purpose of prostitution. It is significant to notice that though the applicant, according to the prosecution case, was apprehended on spy information, but the police did not brother to take any private mashirs for the arrest of applicant and alleged recovery of girl from her custody.
8. ' In view of the above, this application is allowed. The applicant is ordered to be released on bail on her furnishing surety in the sum of Rs, two hundred thousand and PR bond in the like amount, to the satisfaction of the trial Court.
9. Disposed of.