PLJ 2024 Cr.C. (Note) 13
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
Mst. SUMAIRA BIBI--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 4094-B of 2023, decided on 13.6.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), S. 382/342 Malicious intention--CDR--No specification of stolen articles--No medical evidence--Pre-Arrest Bail--Confirmation of--With regard to allegations against petitioner in respect of depriving complainant of case and various articles mentioned in FIR, said allegations are couched in generalized and collective germs without there being any specific terms leveled against petitioner herself--Despite allegation against petitioner that complainant of case was beaten by accused, neither any injury statement was prepared--Call Data Record, related to mobile phone device has been produced before I.O.--In absence of any record and transcript of text messages or voice calls allegedly made between petitioner and complainant, it cannot be determined--In FIR, no specifics of articles have been mentioned, even if any recovery is made, it would be impossible to relate recovered articles with stolen articles--The involvement of petitioner is based on malafide and malicious intent--Paramount consideration remains fact that sending petitioner behind bars, who is a women and law does recognize some benefit on ground of her gender, would cause irreparable loss to her reputation--Petition is allowed. [Para 4 & 5] A, B, C, D, E, F, G, H
PLJ 2018 SC 445; PLD 2017 SC 730 ref.
Malik Khaleel Ahmad Mimra, Advocate for Petitioner.
Mr. Hassan Mahmood Khan Tareen, Deputy Prosecutor General for State.
Khawaja Qaisar Butt, Advocate for Complainant/Respondent No. 2.
Date of hearing: 13.6.2023.
Order
Through this petition under Section 498, Cr.P.C. the petitioner, namely Mst. Sumaira Bibi seeks pre-arrest bail in case F.I.R No. 381 of 2023 dated 01.04.2023 registered in respect of offences under Sections 342 and 382, P.P.C., Police Station Chowk Azam, District Layyah.
2. The allegation against the petitioner, namely Mst. Sumaira Bibi, culled from the evidentiary material produced before the Court, is that she alongwith her co-accused, restrained the complainant of the case and committed theft of various articles belonging to the complainant of the case as detailed in the F.I.R.
3. I have heard the arguments of the learned counsel for the petitioner, the learned counsel appearing on behalf of the complainant/Respondent No. 2, the learned Deputy Prosecutor General and perused the record with their able assistance.
4. This is a pre-arrest bail and only tentative assessment of the evidentiary material produced before the Court is to be made at this stage. A perusal of the record reveals that the offences being investigated are the ones made punishable under Sections 342 and 382, PPC. The offence made punishable under Section 342, PPC is bailable in nature as per Schedule II of the Code of Criminal Procedure, 1898. With regard to the allegations against the petitioner in respect of depriving the complainant of the case of various articles mentioned in the F.I.R., the said allegations are couched in generalized and collective germs without there being any specific terms levelled against the petitioner herself that she had deprived the complainant of the case of any specific article. In this manner, the case of the petitioner is quite distinct from her co-accused. It is also a fact that in the F.I.R. it was got recorded that a woman namely Rukhsana had called the complainant of the case for the purpose of purchasing clothes from him and it was subsequently the petitioner who asked the complainant of the case to meet her at the Shell Petrol Pump, Chowk Azam, whereafter he was given a beating and restrained in a house, however, it is also a fact that despite the allegation against the petitioner that the complainant of the case was beaten by the accused, neither any injury statement was prepared in this regard nor the complainant of the case appeared before any Medical Officer to get himself examined. In this manner, the allegations against the petitioner are also bereft. The learned counsel for the complainant has rightly pointed out that during the course of the investigation, the Call Data Record, related to the mobile phone device has been produced before the Investigating Officer of the case, which reflected that the petitioner had remained in contact with the complainant of the case, however, in absence of any record and transcript of the text messages or voice calls allegedly made between the petitioner and the complainant, it cannot be determined as to why and for what purpose the petitioner had remained in contact with the complainant of the case. The Investigating Officer of the case, submits that the recovery of the weapon used by the petitioner and the articles is to be made from the possession of the petitioner. The learned Deputy Prosecutor General has vehemently argued that as the recovery of the articles is to be affected from the possession of the petitioner, hence, she does not deserve the grant of extraordinary relief of pre-arrest bail. In the F.I.R, no specifics of the articles have been mentioned, therefore, even if any recovery is made, it would be impossible to relate the recovered articles with the stolen articles. With regard to the recovery of the weapon used by the petitioner, it is not necessary that the petitioner be sent behind the bars as the same purpose can be achieved by obtaining a search warrant by the Investigating Officer. Reliance is placed on the case reported as “Aamir Bashir and another v. State and another” (P.L.J. 2018 SC 445), In view of the circumstances, the contention of the petitioner that the involvement of the petitioner is based on mala fide and malicious intent, is an assertion which cannot be said to be without basis and foundation at this stage. The Investigating Officer has already verified the versions of the complainant as well as the petitioner during the investigation of the case. In view of the peculiar circumstances of the case, paramount consideration remains the fact that sending the petitioner behind the bars, who is a woman and the law does recognize some benefit on the ground of her gender, would cause irreparable loss to her reputation. Reliance is placed on the case of “Khalil Ahmad Soomro and others v. The State” (PLD 2017 SC 730) wherein the following principle has been enunciated:
“Although for grant of pre-arrest bail one of the pre conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide.”
5. In view of the above discussion, this petition is allowed and ad-interim pre-arrest bail already granted to the petitioner, by this Court, vide order dated 06.06.2023, is confirmed subject to her furnishing fresh bail bonds in the sum of Rs. 200,000/- (Rupees two hundred thousand only) with two sureties, each in the like amount, to the satisfaction of learned trial Court.
6. It is clarified that the observations enumerated are absolutely tentative in nature and restricted only to the extent of this particular petition, having no nexus and relevance with the trial, which shall be concluded quite independently and purely on merit.
(M.A.B.) Petition allowed
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