SHAGUFTA IFTIKHAR vs The STATE and others
This matter concerns a petition for post-arrest bail filed by a female accused in a case registered under sections 395 and 412 of the Pakistan Penal Code 1860. The complainant initially reported a robbery by unknown armed persons, including a veiled female, but later named the petitioner in a supplementary statement based on an extra-judicial confession of a co-accused. The investigating officer subsequently found the co-accused innocent, leaving the prosecution's case against the petitioner without independent corroboration. The Court observed that the petitioner's identity remained questionable and no recovery was made from her during police custody. Addressing the prosecution's argument that the commencement of the trial precluded bail, the Court held that the mere start of trial does not bar bail if the case warrants further inquiry under section 497(2) of the Code of Criminal Procedure 1898. Furthermore, the Court noted the petitioner's entitlement to relief as a female under the first and fifth provisos to section 497(1) of the Code of Criminal Procedure 1898, given her prolonged incarceration. The bail application was consequently accepted.
- Does the mere commencement of a trial preclude the grant of bail to an accused if the case otherwise warrants further inquiry?
- Can a female accused be granted bail under the first and fifth provisos to section 497(1) of the Code of Criminal Procedure 1898 if the trial remains unconcluded after a year of incarceration?
- Is a supplementary statement naming an accused, based solely on an extra-judicial confession of a co-accused who was later declared innocent, sufficient to deny bail?
- Section 395, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
SHAHID HAMEED DAR, J.---Muhammad Ashraf Ali Khan, the complainant of FIR No,401/2014, dated 12.08.2014, under sections 395, 412, P.P.C., Police Station City Shahkot (Nankana Sahib) has alleged that somebody knocked at the door of his house at 9:30 p.m. on 12.08.2014, whereon he opened the door and found a lady with muffled face standing outside, who hurriedly stepped into the house followed by four others, who all were armed with rifle and pistols; the accused brandished their weapons at all the inmates and snatched cash-amount of Rs,3,50,000/-, some gold ornaments, costly female clothes and a couple of licensed firearms (detail given in the FIR) at gunpoint; the unknown armed men confined him and his family members in a room and decamped with the looted property; he informed the police and his relatives telephonically, who reached there together and set them free by opening the room.
2. The complainant rendered a supplementary statement on 30.07.2015, whereby, he named six accused, including the petitioner-lady, by contending that he learnt about their names through his personal efforts; besides, Shahid co-accused admitted his guilt by disclosing names- of all the co- accused along with their cell numbers, before Nasir Iqbal and Mudassar Aftab.
3. After hearing the learned counsel for the parties and perusing the record, it is observed that the petitioner's name was introduced as an accused by the complainant through his supplementary statement, that he tendered on 30.07.2015, which revolved around extra judicial confession of Shahid co-accused, who allegedly disclosed names of the alleged crime-committers, including that of his own and the petitioner's, with their respective phone numbers. This statement might have been relevant against the co-accused as well, but for exonerating statement of the complainant in his favour during the course of investigation, which laid basis for holding him innocent by the Investigating Officer, who prepared a discharge report in this context and placed his name in column No,2 of the challan. By showing this generosity in favour of Shahid co-accused, the complainant certainly did no good to his case, as minus the informant, no other source of information is available with the prosecution to name the petitioner as an accused in this case.
4. The contents of FIR revealed that the veiled-female actively participated in the occurrence with a pistol in hand, but a question mark hanged on the issue of her identity, having been rendered still blurrier by the complainant, after he let Shahid co-accused off the hook. The petitioner was arrested in this case on 17.08.2015 and nothing was recovered from her, till she remained with the police. Her continued incarceration in the hazy backdrop hereof may be of no consequence to the prosecution's case. She is no more needed by the police for the purpose of any recovery etc.
5. Learned counsel for the complainant has vehemently argued that the petitioner's trial has commenced and a number of prosecution witnesses have already been recorded, therefore, she may not be released on bail. It hardly constituted a valid argument for nodding in negative to bail- plea of the petitioner, as her case called for further probe into her guilt within the scope of section 497(2), Cr.P.C. The apex court has dealt with an alike situation in the judgment, Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585) by holding that mere commencement of trial may not impede grant of bail-plea of an accused, if he was otherwise entitled to such relief within the, scope of section 497(2), Cr.P.C. The petitioner being a female, in fact, crossed statutory limit of a year's incarceration for grant of bail in the face of her trial still unconcluded, within the mischief of fifth proviso to section 497(1), Cr.P.C, long before. No one can be left to rot in jail as a matter of mature punishment or just to satisfy the whimsical grudge of D the complainant. Besides, her case is also covered by the first proviso to section 497(1), Cr . P. C .
6. Therefore, this application is accepted and the petitioner is admitted to post arrest bail subject to furnishing bail bonds in the sum of Rs,5,00,000/- with two sureties each in the like amount to the satisfaction of the learned trial court.