Mst. Shazia Parveen Saleem (petitioner) seeks bail after arrest in case FIR No.82 dated 26.02.2019, under Sections 420, 468, 471 PPC registered with Police Station Gunjmandi, Rawalpindi.
2. Precisely stated, the case of prosecution as unfolded from the crime report is to the effect that Shazia Perveen (petitioner) got prepared a forged guardianship certificate and on the basis thereof entered into an agreement to sell with Raja Shaukat Ali Kiani regarding a house measuring 08-marla situated in Khasra No. 1217 Mouza Jarahi, Rawalpindi; that such misdeed came to limelight upon the complaint of one Gul Fraz; that the forged credentials of guardianship certificate were further disclosed in pursuance to an inquiry conducted by learned Civil Judge, Rawalpindi.
3. Learned counsel for the petitioner submitted that the petitioner is innocent in the case and became victim of circumstances; that the petitioner is a household lady and the guardianship certific ate was provided to her with the assurance that the same has been issued by court of competent jurisdiction; that even otherwise, the case does not attract the prohibitory clause of section 497 Cr.P.C. thus bail is to be granted as a matter of rule; that even otherwise, petitioner is a female and her case is covered by the first proviso of section 497 Cr.P.C. With these submissions, learned counsel urged for the acceptance of instant post arrest bail.
4. The learned Law Officer opposed the grant of bail on the ground that petitioner is specifically nominated in the First Information Report with the allegation of having presented the forged guardianship certificate before Sub- Registrar; that the guardianship certificate was found to be forged in pursuance to a probe conducted by learned Civil Judge, Rawalpindi and that since sufficient material is available on record, hence, the instant petition merits no acceptance.
5. Arguments heard and record perused.
6. It evinces from the tentative perusal of record that Shazia Perveen (petitioner) stands incarcerated in the case with the allegation of having presented a forged guardianship certificate before Sub-Registrar (Rural), Rawalpindi in an attempt to transfer 08-marla house in favour of Raja Shaukat Ali Kiani (co-accused). As per facts even admitted by the prosecution the house was in the name of Raja Saleem Aslam, who was none other than the husband of petitioner and had died in September , 2018. The petitioner was having two daughters and two sons, the youngest out of them was Najaf Ali aged about 16-years. The petitioner , as per canvassed facts, entered into an agreement to sell for the house in question and got prepared guardianship certificate in respect of Najaf Ali.
7. In the wake of facts mentioned above, it is noticed that admittedly the house in question belongs to the legal heirs of Raja Saleem Aslam (late) and all of them are on same page having no inheritance dispute. According to the learned counsel, Shazia Perveen (petitioner) obtained guardianship certificate after hiring the services of legal practitioner but unfortunately though the needful was done but by provid ing a forged document. The aforementioned stance of petitioner is noticed to have remained un-probed during investigation. Even during arguments, a query was raised by this Court as to wherefrom the forged certificate was obtained by the petitioner but the police officials in attendance resorted to a complete silence. It seems that the investigator prematurely committed himself by drawing an inference about the guilt of petitioner . Such approach of the Investigating Officer is unfortunately not in consonance with his obligation to unveil actual facts of the case, embodied in 25.2(3) of Police Rules, 1934, which for reference sake is being reproduced hereunder:- "It is duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offender s. He shall not commit himself prematurely to any view of the facts for or against any person."
8. While dilating upon the sections of law applied in the FIR, it is observed that 420 and 471 PPC are bailable as per II-Schedule of the Code of Criminal Procedure, 1898, whereas, the offence 468 PPC, though is non-bailable but entails maximum imprisonment up to seven years. A pressing need is felt to mention here that in section 497 Cr.P.C., a positive language is couched for the grant of bail in respect of offences having less than 10-years imprisonment and a stringent criteria is laid down for grant of bail in offences punishable with death, imprisonment for life or imprisonment for 10-years. Due to the foregoing reason, the offences are categorized as falling into non- prohibitory and prohibitory clause for the grant of bail under section 497 Cr.P.C. Needless to mention here that the term non-prohibitory clause stands for the offences punishable with imprisonment of less than 10-years. According to the law of bail evolved over the years through judge made law, the grant of bail in offences punishable with imprisonment of less than 10-years is rule and refusal is an exception. The question of bail in non-prohibitory clause was authoritatively expounded upon by the Hon'ble Supreme Court of Pakistan in case reported as Tariq Bashir and 5 others vs. The State (PLD 1995 Supreme Court 34) with following observation:- "It is crystal clear that in bailable offences the grant of bail is a right and not favour , whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example---
(a) where there is likelihood of abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the of fence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict."
The Hon'ble apex Court in another case reported as Muhammad Tanveer vs. The State and another (PLD 2017 Supreme Court 733) reiterated principles laid down in Tariq Bashir case (supra) with following observation:- "In the case of Tariq Bashir vs. The State (PLD 1995 SC 34), this Court has taken notice of stock of prevailing circumstances where under trial prisoners are sent to judicial lock-up without releasing them on bail in non-bailable offences punishable with imprisonment of less than 10 years. It was held that "bail in such offences shall not be refused." This Court took further pains by reproducing the entire provision of section 497 Cr.P.C. and further held that "grant of bail in such offences is a rule and refusal shall be an exception, for which cogent and convincing reasons should be recorded". While elaborating exceptions, albeit it was mentioned by this Court that if there is a danger of the offence being repeated if the accused is released on bail, then grant of bail may be refused like the two courts below in this case have held but it was further elaborated that such opinion of the court shall not be founded on mere apprehension and self assumed factors but the same must be supported by cogent reasons and material available on record and not to be based on surmises and artificial or weak premise."
In the para No. 13 of the same case, the Hon'ble Supreme Court of Pakistan further laid emphases on the point in question with the following observation:- "Once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497 Cr.P.C. shall be a rule and refusal shall be an exception then, the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding on all Courts throughout the country including the Special Tribunals and Special Courts."
9. In accordance with the ratio laid down by the Hon'ble Supreme Court of Pakistan in cases mentioned above, it can safely be held that bail is to be granted as a rule in offences having imprisonment of less than 10-years. There is no cavil to the proposition that in appropriate cases bail can be withheld in such cases provided there exists some recognized exceptional circumstances, which must be mentioned in the order . Unfortunately , the plea of petitioner for grant of her post arrest bail was decided by the learned Magistrate and ASJ in a very casual and cursory manner without paying heed to the observation and directions of the Hon'ble Supreme Court of Pakistan on the subject. Even the courts below also ignored the first proviso of section 497 Cr.P.C., whereby bail is to be granted benevolently to a female accused.
10. In view of above discussion, this petition is accepted and the petitioner is granted post arrest bail subject to furnishing her bail bonds in the sum of Rs.10,000/- with one surety in the like amount to the satisfaction of the trial court.