' Muhammad Ramzan complainant got recorded Crime Case No,177, dated 18-6-1998 under section 500/506/382/342, Pakistan Penal Code, to which section 337-K has been added, at Police Station Naikapura District Sialkot. It is alleged in the F.I.R. That Muhammad Razman complainant had to recover an amount of Rs,2 lac from Arshad co-accused, husband of Mst. Shagufta Naureen petitioner-accused, who, issued the cheque which was dishonoured. According to the complainant, from a street Arshad co-accused alongwith another person took him to his on house where he gave him a kick blow, brought some lady, made him to drink liquor, removed his clothes and got the nude snaps. Mst. Shagufta Naureen petitioner entered the room and asked him to keep quiet and to forget all what has happened as enough was enough. His (complainant's) son Shaukat arrived there who saw him in the aforesaid condition and raised the protest. Thereafter, Arshad forcibly removed an amount of Rs,6,000 from his person and asked him to leave the place.
Mst. Shagufta Naureen was arrested on 18-6-1998 whose bail plea was rejected by the learned Area Magistrate as well as by the learned Sessions Judge, Sialkot. She filed this petition before this Court for her admission to bail who was allowed the interim relief on 22-12-1998.
2. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the F.I.R. Learned counsel for the petitioner has canvassed that even according to the recitals of the F.I.R. No role has been attributed to Mst. Shagufta Naureen with respect to all what happened with Muhammad Ramzan complainant, that her presence in her own house is expected and that she being a female is entitled to be admitted to bail under proviso (1) to subsection (1) of section 497 of the Code of Criminal Procedure. At the first instance learned State Counsel expressed that Mst. Shagufta Naureen is prima facie liable in the matter as her husband committed the nefarious offence who made the complainant naked and got the photographs of the complainant along with some other woman. However, when confronted with the situation that would a wife be a party in the aforesaid type of episode when the character of the female is not objectionable and the male accused is a business man; learned State Counsel scrupulously conceded that according to the recitals of the F.I.R. Mst. Shagufta Naureen is not prima facie connected with the occurrence. I would express that a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure according to which a female is entitled to be admitted to bail even in those cases which fall within the prohibitory clause. The police had added section 337-K, Pakistan Penal Code, but it is not a case for the restoration of some property as nothing was handed over to the complainant by Arshad co-accused and Arshad co-accused did not want to get back any security or amount. The addition of section 337-K, Pakistan Penal Code is held to be a mala fide act of the Investigating Officer to make the case that of sensational nature as well as heinous. Under my supervisory Constitutional jurisdiction I pass the order for the deletion of section 337-K, Pakistan Penal Code as this type of free hand cannot be granted to the police keeping in view the shape of scale of justice. Section 500/506/342, Pakistan Penal Code are boilable and an accused involved in boilable offence(s) is entitled to be admitted to bail as of right as contemplated under section 496 of the Code of Criminal Procedure. Then remains section 382, Pakistan Penal Code. In the F.I.R. No role about the aforesaid forcible removal of Rs,6,000 is attributed to Mst. Shagufta Naureen petitioner-accused. Keeping in view the recitals of the F.I.R. It can safely be held that Mst. Shagufta Naureen petitioner, who is a female, is entitled to be admitted to bail.
3. It shall not be out of place to express that Arshad co-accused husband of Mst. Shagufta Naureen petitioner is stated to be a fugitive from law. Mst. Shagufta Naureen petitioner is expected to live in the house of her husband. It is surprising that she was not granted the bail even though she is a female. In the circumstances of the matter she cannot be detained in jail as that would be punished without trial. Even otherwise the criminal liability of one member of the family for an alleged act of another member of the family has not been approved in the larger interest of the society. This aspect stands settled in view of the kind words contained in the "Khutba-tul-Hajja-tul- Widah" wherein our Holy Prophet Muhammad (peace be upon him) has very kindly expressed that "henceforth the offender himself will be responsible for the offence; no son will be charged for the father's crime and no father will be punished for the crime committed by the son". The aforesaid kind words project that only the offender himself is responsible for his misdeed, if any. In the circumstances I hold that the petitioner was entitled to be admitted to bail at the end of the learned Court of Session keeping in view the proviso (1) to subsection (1) of section 497 of the Code of Criminal Procedure especially when she was arrested on 18-6-1998.
4. At this stage it would be instructive to refer that a bail application has to be disposed of within the framework of section 497 of the Code of Criminal Procedure. There is nothing on record as to how the learned Sessions Judge ignored the proviso 01 to subsection (1) of section 497 of the Code of Criminal Procedure according to which a female is entitled to the discretion of the Court for the purpose of her admission to bail keeping in view the role ascribed to her. The working of the learned Sessions Judge ignoring the statutory provisions of law in such-like cases. Which should be within his knowledge, cannot be approved. I am tempted to express that the law has to take its course and Courts have to keep in mind the shape of scale of justice.
5. In view of what has been expressed above, I hold that Mst. Shagufta Naureen is entitled to be admitted to bail than to be retained in jail. I, therefore, accept this petition, confirm the interim bail allowed to her on 22-12-1998 during the holy month of Ramadhan and admit her to bail in the sum of Rs,30,000 (Rupees thirty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel her bail.
6. This order shall be got executed within a period of fifteen days by the petitioner failing which this order shall stand recalled and the petitioner shall be liable to face the legal consequences.