MUMTAZ BIBI Versus State
ORDER
ABDUL SAMI KHAN, J.--- Through this petition under section 498, Cr.P.C. the petitioner has sought pre-arrest bail in case FIR No.438/16, dated 04.10.2016 registered at Police Station Saddar Jhang in respect of offences under sections 337A(i), 337A(ii), 337L(2), 148, 149, P.P.C.
2. I have heard the learned counsel for the parties and have gone through the record with their able assistance. This is bail before arrest and only tentative assessment is required at this stage. It has been noticed by this Court that although the petitioner is named in FIR, yet the fact remains that there is an unexplained delay of seven days in registration of the FIR, which prima facie shows that the FIR has been got recorded after due deliberation and consultation. The offences under sections 337A(i) and 337L(2), P.P.C. are bailable in nature and as far as the offence under section 337A(ii), P.P.C. is concerned, injury No.3 available in the medico legal certificate of Shabnam Bibi injured does not reflect that bone is exposed rather it is mentioned that the injury is bone deep, so the question as to whether provisions of offence under section 337A(i), P.P.C. are attracted instead of section 337A(ii), P.P.C. shall be determined by the learned trial court at an appropriate stage. It is well settled by now that vicarious liability of the petitioner in the commission of alleged occurrence and sharing common intention by her with co-accused shall be determined by the learned trial court after recording evidence. By virtue of her gender, case of the petitioner covered by proviso to subsection (1) of section 497. In such like cases, the petitioner being female cannot be remanded to police custody. Guidance can be sought from subsection (5) of section 167, Cr.P.C. which is as under:--
"[(5) Notwithstanding anything contained in sections 60 and 61 or hereinbefore to the contrary, where the accused forwarded under subsection (2) is a female, the Magistrate shall not, except in the cases involving Qatl or dacoity supported by reasons to be recorded in writing, authorize the detention of the accused in police custody, and the police officer making in investigation shall interrogate the accused referred to in subsection (1) in the prison in the presence of an officer of jail and a female police officer."
Even otherwise, it is an admitted position of the case that the petitioner is previous non-convict; neither she is hardened, dangerous, desperate criminal nor has committed the alleged offence on the pretext of honour, therefore, section 337N(2), P.P.C. also comes to her rescue, which is reproduced as under:--
337-N(2) Cases in which qisas for hurt shall not be enforced: Notwithstanding anything contained in this Chapter, in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal [or the offence has been committed by him in the name or on the pretext of honour]
Provided that the ta'zir shall not be less than one-third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour.
The above quoted provision of law clearly depicts that additional punishment of imprisonment as to ta'zir can only be awarded to a person, who is previous convict or hardened, dangerous, desperate criminal or has committed the offence on the pretext of honour, but all these elements are missing in this case. The person of the petitioner cannot be handed over to police only for the purpose of effecting recovery, which otherwise has lost relevancy with the passage of time as occurrence in this case took place on 04.10.2016. In such situation, recovery of weapons of offence after the lapse of about two months is of little help to the prosecution. In this regard, reliance can be placed on 2014 SCMR 1349. The petitioner has already joined the investigation which is complete to her extent, therefore, no useful purpose would be served by sending her behind the bars so as to enable her to come out of jail on post-arrest bail after few days.
3. For what has been discussed above, keeping in view the provisions of section 337N(2), P.P.C. coupled with the facts and circumstances discussed in preceding paragraphs, this petition is allowed and the ad interim pre-arrest bail already granted to the petitioner vide this Court's order dated 23.11.2016 is hereby confirmed subject to furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty thousand only) with one surety in the like amount to the satisfaction of learned trial court.
4. The observations made above are tentative in nature and are strictly confined to the decision of this bail petition only.
WA/M-220/L Petition accepted.