ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Criminal Bail Application No. 750 of 2023

(Mst. Shireen Asad versus The State)

Date Order with signature of Judges

1. For orders on office objection at A

2. For hearing of bail application

3. For orders on M.A.No. 5428/2023

Date of hearing: 16.06.2023

Date of order: 21.06.2023

Mr. Raj Ali Wahid Kunwar advocate for the applicant

Mr. Abrar Ali Khichi Addl. PG for the state

M/s. Fayyaz Ali Metlo and Muhammad Idrees Rahimoon advocates for the complainant

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It is the case of the prosecution that deceased Rafiq, his brothers P.Ws Abdul Razzak and Rasheed were working with the applicant against monthly salary of Rs.15,000/-. Rafiq Ahmed allegedly was tortured to death by the applicant, for that the present case was registered.

The applicant on having been refused bail by learned I-Additional Sessions Judge, Karachi East has sought for the same from this Court by making the instant bail application under Section 497 Cr.P.C.

It is contended by learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by the complainant; the FIR of the incident has been lodged with delay of about 02 days; she has nothing to do with the alleged incident; the deceased has died on account of his fall from the rickshaw and the applicant being woman is entitled to benefit of first provisio to Section 497 Cr.P.C. By contending so, he sought for release of the applicant on bail on point of further inquiry. In support of his contention he relied upon cases of Abdul Razzaq Mania vs. The State (1988SCMR 653) and Noor Muhammad vs. The State and another (2020 SCMR 1049).

It is contended by learned Addl. P.G for the state and learned counsel for the complainant that the applicant has committed the death of the deceased by way of torture; there is recovery of plas and its use in commission of incident is proved on DNA test, therefore, she is not entitled to be released on bail on point of further inquiry. By contending so, they sought for dismissal of the instant bail application. In support of their contentions, they relied upon case of Muhammad Wakeel vs. The State (2006 SCMR 1731).

Heard arguments and perused the record.

The complainant is not an eye witness to the incident; the FIR of the incident has been lodged with delay of about 02 days; such delay could not be overlooked. Initially the postmortem on the dead body of the deceased was not conducted; subsequently, it was conducted by a Medical Board after exhumation of the dead body of the deceased. As per the opinion of the Medical Board, the deceased has been done to death by causing him injuries on his right frontal bone and right parietal bone with some hard blunt substance, those injuries to the deceased have been attributed to the applicant by P.Ws Abdul Razzaq and Rasheed by making their statements under Section 161 Cr.P.C, those statements have been recorded twicely that too with delay of about 04 days even to FIR, such delay having not been explained plausibly could not be overlooked. It is reflecting concoction. If it is believed that nail swab of the deceased has been found matched with the swab taken from the head of the plas allegedly used in commission of the incident, even then such fact alone is not enough to deny concession of bail to the applicant. Section 3/4 of the Prevention of Trafficking in Persons Act, 2018 has been applied by the police at later stage, its applicability obviously would be determined at trial. The case has finally been challaned and the applicant is not required by the police for further investigation. The applicant being house wife is having family; there is no criminal record against her and there is no likelihood of her absconsion or tampering with the evidence on her release on bail, therefore, she is found entitled to benefit of first proviso to Section 497 Cr.P.C. In these circumstances, a case for her release on bail on point of further inquiry obviously is made out.

In case of Mst. Ghazala vs. The State and another (2023 SCMR 887), the Apex Court has held that:

“4.    No doubt, the offence of Qatl-i-amd (intentional murder) punishable under section 302, P.P.C. alleged against the petitioner falls within the prohibitory clause of section 497(1) of the Code of Criminal Procedure, 1898 ("Cr.P.C.") but being a women, the petitioner's case is covered by the first proviso to section 497(1), Cr.P.C. The said proviso, as held in Tahira Batool case,¹ makes the power of the court to grant bail in the offences of prohibitory clause of section 497(1) alleged against an accused under the age of sixteen years, a woman accused and a sick or infirm accused, equal to its power under the first part of section 497(1), Cr.P.C. It means that in cases of women accused etc. as mentioned in the first proviso to section 497(1), irrespective of the category of the offence, the bail is to be granted as a rule and refused only as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of section 497(1), Cr.P.C. The exceptions that justify the refusal of bail are also well settled by several judgments of this Court.² They are the likelihood of the accused, if released on bail: (i) to abscond to escape trial; (ii) to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice; and (iii) to repeat the offence.”

The case law which is relied upon by learned Addl. P.G for the State and learned counsel for the complainant is on distinguishable facts and circumstances. It was rendered during hearing an appeal while the case in hand is relating to hearing of bail application.

In view of above, the applicant is admitted to bail subject to her furnishing surety in sum of Rs.200,000/- (Rupees Two Lacs only) and P.R bond in the like amount to the satisfaction of the learned trial Court.

Instant bail application is disposed of along with listed application.

J U D G E