TARIQ MEHMOOD JAHANGIRI, J. Through the instant petition, the petitioner, seeks bail after arrest in case FIR No.918, dated 25.07.2024, offence under Sections 365-A, 292-A, 506(ii), 337, 170, 171, 342, 148, 149, P.P.C. registered at Police Station Shehzad Town, Islamabad.
2. It is alleged that the petitioner along with co-accused has abducted the complainant, gave him beatings, made nude videos of him and also took Rs.10,00,000/- as ransom, hence the instant FIR.
3. Learned Counsel for the petitioner/accused, inter alia, contends that there is no evidence available against the petitioner regarding the alleged offence; she has falsely been implicated in the case, hence is entitled for grant of bail.
4. Conversely, learned DDPP assisted by learned counsel for complainant has controverted the arguments advanced by learned counsel for the petitioner and states that sufficient evidence is available against the petitioner; she has committed a heinous crime; offence falls under the prohibitory clause of section 497, Cr.P.C., hence is not entitled for grant of bail.
5. We have heard the arguments advanced by learned counsel for the petitioner/accused, learned DDPP assisted by learned counsel for complainant and perused the record with their able assistance.
6. No recovery has been effected from the petitioner/accused; no evidence is available regarding the call made by her to the complainant on 14.07.2024, as mentioned in the FIR.
7. No nude videos of the complainant have been recovered by the I.O; no CCTV footages of the ATM mentioned in the FIR have been collected.
8. There is no expert report regarding voice messages allegedly sent by the petitioner; even I.O has not bothered to collect the evidence that whether the SIM used in the recovered mobile phone was in the name of the petitioner or otherwise. Only evidence against the petitioner is that an amount of Rs.50,000/- has been transferred through easypaisa in her account by the complainant.
9. The petitioner is female having a suckling baby girl of four months who is also confined in judicial lockup with her.It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Mst.
Asiya v. The State and another", (2023 SCMR 383) that: "We have been informed that the petitioner has two children, one of which is a suckling baby girl of 17 months, who has been confined with her in jail. The other one is living with the grandmother.
Learned counsel for the complainant could not deny this fact. In Mst. Nusrat v. The State (1996 SCMR 973) this Court has candidly held that the suckling child of the petitioner kept in jail is undoubtedly innocent. He is kept in jail with mother obviously for his welfare. The concept of "welfare of minor" is incompatible with jail life. So, instead of detaining the innocent child infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor if the mother is released from the jail."
10. It has been held by the Hon'ble Supreme Court of Pakistan while granting bail after arrest to the female accused involved in the cases falling under the prohibitory clause of section 497, Cr.P.C. that: "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 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."
Reliance is placed on cases titled as "Mst. Ghazala v. The State and another" (2023 SCMR 887) and "Tahira Batool vs. The State and another" (PLD 2022 SC 764).
11. Apart from the above, it has been held time and again by the august Supreme Court that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance could be placed on case reported as "Haji Muhammad Nazir v. The State" (2008 SCMR 807).
12. As far as contention of the learned counsel that case of the petitioner squarely falls within the ambit of section 497(2), Cr.P.C. is concerned, the same is reproduced as under:-
497. When bail may be taken in cases of non-bailable offence.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
Perusal of the aforesaid provision reveals that intent of the legislature disclosing pre-condition to establish the word "guilt" against whom accusation is levelled has to be established on the basis of reasonable ground, however, if there exists any possibility to have a second view of the material available on the record then the case advanced against whom allegation is levelled is entitled for the relief in the spirit of section 497(2), Cr.P.C. Reliance in this regard is placed on a case titled as "Jahanzeb and others v. State through A.G. Khyber Pakhtunkhwa Peshawar and another" (2021 SCMR 63),
13. It has been held by the Hon'ble Supreme Court of Pakistan in a case titled as "Resham Khan and another v. The State through Prosecutor General Punjab, Lahore and another" (2021 SCMR 2011) that: "It is well settled that object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not."
14. It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep the people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail after arrest granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. Reliance is placed on the cases titled as Manzoor and 4 others v. The State (PLD 1972 SC 81) and Zaigham Ashraf v. The State and others (2016 SCMR 18).
15. Investigation in the case has been completed; the petitioner is a female accused having suckling baby and she is behind the bars since her arrest without any fruitful progress in the trial,
16. A tentative assessm ent of record shows that petitioner/accused has made out a case of further inquiry as envisaged under section 497(2), Cr.P.C.
17. In view of above, instant petition is accepted and the petitioner/accused is admitted to bail subject to furnishing bail bonds in the sum of Rs. 100,000/- (One Hundred Thousand only) with one surety in the like amount to the satisfaction of learned trial Court.
18. The concession of bail may be cancelled by the competent Court under section 497(5) of Cr.P.C, if the petitioner misuses it in any manner, including causing delay in the expeditious conclusion of the trial.
19. Needless to mention that, this is a tentative assessment which shall not affect the trial of case in any manner.