Principles of law regulating the discretion of courts, under Section 497(1) CrPC, in the matter of granting post arrest bail to women accused, reiterated and the distinction between granting bail under Section 497(1) and under Section 497(2) CrPC, explained

No doubt, the offence of Qatl-i-amd (intentional murder) punishable under Section 302 PPC alleged against the petitioner falls within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898 (“CrPC”) but being a women, the petitioner’s case is covered by the first proviso to Section 497(1), CrPC. The said proviso, 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), CrPC. 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), CrPC. The exceptions that justify the refusal of bail are also well settled by several judgments of this Court. 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.

That being the legal position, we have asked the learned Additional Advocate General and the learned counsel for the complainant to show how the petitioner’s case falls in any of the said three well-established exceptions. They, however, could not explain and satisfy the Court as to which one of the said exceptions is attracted to the petitioner’s case. Their only response was that there is a sufficient incriminating material available on record of the case to connect the petitioner with the commission of the alleged offence. We are afraid, the response is misconceived. The Court is not considering the grant of bail to the petitioner under Section 497(2), CrPC, under which the bail is granted to an accused as of right if it appears to the court that there are no reasonable grounds for believing that the accused has committed the offence alleged against him rather there are sufficient grounds for further inquiry into his guilt. For the purpose of deciding the prayer for grant of bail in exercise of the discretionary power of the court under Section 497(1), CrPC, the availability of a sufficient incriminating material to connect the accused with the commission of the offence alleged against him is not a relevant consideration.

Bail After Arrest Crl.P.54/2023
Mst. Ghazala v. The State thr. A.G. Khyber Pakhtunkhwa and another
Mr. Justice Syed Mansoor Ali Shah
22-02-2023