Along the lines of Section 497 of the Code of Criminal Procedure (“Cr.PC”), when any person accused of any nonbailable offence is arrested or detained without warrant by an officerin-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, however, according to the first proviso,the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. This proviso accentuates an additional consideration for the grant of bail while dealing with applications for bail of persons categorized in the proviso as a rider. This is encapsulated as beneficial legislation, in addition to considering whether there are reasonable grounds for believing that the accused is guilty of an offence punishable with death, imprisonment for life, or imprisonment for ten years. Undoubtedly, the Court has to first satisfy whether the bail petitioner is covered under the proviso or not. It is often seen that many women implicated in cognizable offenses are found poverty-stricken and illiterate and in some cases, they have to take care of children, including suckling children, as argued in this case. There are also many examples where the children are to live in prisons with the mothers. This ground reality is also ought to be considered which would not only involve the interest of such accused women, but also the children who are not supposed to be exposed to prisons, where there shall always be a severe risk and peril of inheriting not only poverty but also criminality, during the incarceration of their mother. The first proviso facilitates the Court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm under the doctrine of welfare legislation, reinforced by way of the proviso which requires a purposive interpretation for extending the benefit of bail to the taxonomy of persons mentioned in it, and the same is to be taken into consideration constructively and auspiciously depending upon the set of circumstances in each case, among other factors, including the satisfaction of the Court that the bail petitioner does not have any criminal record or is not a habitual offender.
The purpose of bail is to ensure the attendance of the accused at the Trial Court, but neither is it punitive nor preventative. Likewise, there is no inevitable or unalterable principle for extending the facility of bail, but the facts and circumstances of each case dominate and command the exercise of judicial discretion. It is also a well-settled exposition of law that there is no hard and fast rule to regulate the exercise of the discretion for grant of bail except that the discretion should be exercised judiciously. In the same breath, the turn of phrase “further inquiry” reckons the tentative assessment which may create doubt with respect to the involvement of the accused in the crime. The doctrine of “further inquiry” denotes a notional and exploratory assessment that may create doubt regarding the involvement of the accused in the crime. Whereas, the expression “reasonable grounds” refers to grounds which may be legally tenable, admissible in evidence, and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary, or presumptuous. The prosecution is duty bound to demonstrate that it is in possession of sufficient material or evidence, constituting “reasonable grounds” that the accused had committed an offence falling within the prohibitory limb of Section 497, Cr.PC, while for achieving bail, the accused has to show that the evidence or material collected by the prosecution and/or the plea taken by the defence visibly created a reasonable doubt or suspicion in the prosecution case.
Chapter VA of the PPC pertains to the offence of “Criminal Conspiracy”. According to Section 120-A, PPC, when two or more persons agree to do, or cause to be done, an illegal act, or an act which is not illegal by illegal means such an agreement is designated a criminal conspiracy; provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Whereas, the punishment of criminal conspiracy is provided under Section 120-B, PPC, which says that whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence; and whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. In tandem, Section 118, PPC, is germane to concealing design to commit offence punishable with death or imprisonment for life if offence be committed; it lays down that whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the commission of an offence punishable with death or imprisonment of life, voluntarily conceals by any act or illegal omission, the existence of design to commit such offence or makes any representation which he knows to be false respecting such design, if offence be not committed, shall, if that offence be committed, be punished with imprisonment of either description for a term which may extend to seven years, or, if the offence be not committed, with imprisonment of either description for a term which may extend to three years; and in either case shall also be liable to fine. While Section 109, PPC, provides that whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code, for the punishment of such abetment, be punished with the punishment provided for the offence. So far as the applicability of Section 34, PPC, is concerned, it lays down the principle of constructive liability whereby if several persons would unite with a common purpose to do any criminal offence, all those who assist in the completion of their object would be equally guilty. Constructive liability under the PPC may arise in well-defined cases such as a person may be constructively liable for an offence which he did not actually commit by reason of common intention of all to commit such an offence (Section 34); he being an abettor in commission of an offence (Section 109); he being a member of a conspiracy to commit such an offence (Section 120B); and he being a member of an unlawful assembly, the members whereof knew that an offence was likely to be committed (Section 149); The principle of vicarious liability can be looked into even at the bail stage if from the FIR, the accused appears to have acted in preconcert or shared a common intention with his co-accused.
Crl.P.L.A.243/2024
Mst. Ishrat Bibi v. The State thr. P.G. Punjab and another
Mr. Justice Muhammad Ali Mazhar
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