PLJ 2024 Cr.C. 809
بدقسمتی سے پولیس آئین کے آرٹیکل 10 کی اہمیت اور مذکورہ بالا دو معاملوں میں جاری ہدایات پر کوئی توجہ نہیں دے رہی ہے۔ پولیس کا غیر ذمہ دارانہ رویہ بے گناہ مدعا علیہان کی مشکلات میں اضافہ کر رہا ہے اور انہیں بلاجواز قید میں رکھنے کے قابل بنا رہا ہے۔ اس سے پہلے بھی کم از کم تین معاملوں میں ایڈیشنل آئی جی (انویسٹی گیشن) پنجاب کو عدالت میں بلایا گیا تھا تاکہ انہیں فوجداری کیس میں گرفتار ملزم کو گرفتاری کی بنیاد فراہم کرنے کی اہمیت کے بارے میں آگاہ کیا جا سکے اور انہوں نے ضرورت کی تعمیل کے لئے مناسب اقدامات کیے لیکن ابھی تک ایسا کچھ نہیں کیا گیا ہے۔ اگرچہ پولیس کی جانب سے ملزمان کو گرفتاری کی بنیاد فراہم کرنے میں ناکامی کے بعد توہین عدالت کی کارروائی کا آغاز ہوتا ہے لیکن پھر بھی مستقبل میں ضروری کام کرنے کے لئے دوبارہ ہدایات جاری کرکے نرم رویہ اختیار کیا جارہا ہے۔ مزید توقع کی جاتی ہے کہ سی آر پی سی کی دفعہ 167 کے تحت جسمانی ریمانڈ کے معاملات کے ساتھ پکڑے گئے مجسٹریٹ اس بات کو یقینی بنائیں گے کہ ملزمان کو پولیس فائل کا حصہ بنا کر گرفتاری کی بنیاد فراہم کی جائے۔ اس عدالت کے رجسٹرار کو ہدایت کی جاتی ہے کہ وہ اس حکم کی کاپی صوبے کے تمام سیشن ججوں اور آر پی اوز کو بھیجیں۔
It is observed that unfortunately police is paying no heed to the importance of Article 10 of the Constitution as well as to the directions issued in the above mentioned two cases. The impassive attitude of the police is adding to the miseries of innocent litigants, making them volunerable to unjustified incarceration. Even previously, at least in three cases the Additional I.G (Investigation), Punjab was called in the court so as to sensitize him about the importance of the grounds of arrest required to be provided to the accused arrested in a criminal case and he undertook to take appropriate steps towards the compliance of requirement but nothing as such has yet been done. Though the failure on the part of police to provide grounds of arrest to the accused warrants initiation of contempt proceedings but still lenient view is being taken by reissuance of direction for doing the needful in future. It is further expected that the learned Magistrates, seized with the matters of physical remand under section 167 Cr.P.C will ensure that grounds of arrest are provided to the accused by making them part of the police file. The Registrar of this Court is directed to send the copy of this order to all the Sessions Judges and the R.P.Os in the province.
Crl. Misc-Post-arrest Bail
2945-B-23
MST. SHEHNAZ BIBI ETC VS STATE ETC
PLJ 2024 Cr.C. 809
[Lahore High Court, Rawalpindi Bench]
Present: Ch. Abdul Aziz, J.
Mst. SHEHNAZ BIBI and another--Petitioners
versus
STATE and another--Respondents
Crl. Misc. No. 2945-B of 2023, decided on 13.11.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Pakistan Penal Code, (XLV of 1860), S. 302/34--Constitution of Pakistan, 1973, Art. 10--Post arrest bail--grant of--The incident occurred on 01.04.2023 whereas Anam Bibi died in the hospital on the following day while being provided medical treatment--Autopsy of the deceased was also carried out--Whereafter the Medical Officer handed over various samples to the investigating officer for their onward examination by the experts--Astonishingly, after about 100 days of the death of Complainant produced before the police a clip and hair of the deceased which were forwarded to PFSA and upon examination both these articles were found to have traces of some corrosive substance--Why such important material was withheld by him--The delay of about more than three months in the registration of FIR, which is not explained in any manner--Both the petitioners admittedly are household ladies having no criminal antecedents--The case of petitioners not only falls within the first proviso to section 497(1) Cr.P.C but also comes within the ambit of further inquiry--Petitioners are admitted to post arrest bail-- Unfortunately police is paying no heed to the importance of Article 10 of the constitution as well as to the directions issued in the above mentioned two cases.
[Pp. 810, 811, 812 & 813] A, B, C, D, E
2023 SCMR 887; 2002 SCMR 1478; 2021 PCr.LJ 593 ref.
Syed Wasi Abbas Gillani, Advocate for Petitioners.
Khawaja Sohail Iqbal, DDPP with Javeria SP (investigation), Javed Inspector, Asghar DSP.
Date of hearing: 13.11.2023.
Order
Mst. Shehnaz Bibi and Mst. Sumera Ilyas Samra (petitioners) seek bail after arrest in case FIR No. 115 dated 13.07.2023 registered for offence under Sections 302, 34, PPC at Police Station Bahtar Tehsil Fateh Jang, District Attock.
2. Precisely stated the case of prosecution as gleaned from the First Information Report got lodged by Abdul Salam is to the effect that his daughter Anam Bibi was wedded with Zahir Ali about three years ago and from the said wedlock, the couple was blessed with two kids aged about 1 and 2 ½ years; that after lapse of some period, Zahir Ali, Shahnaz, Sumera (husband, mother-in-law and sister-in-law respectively of Anam Bibi) and one Muhammad Khizar started quarrelling and harassing Anam Bibi, as they wanted to tread her on wrong path; that Anam Bibi told the whole story to her father, the complainant; that the complainant convened a Jirga for settlement of dispute but despite that no positive outcome ensued therefrom; that on 01.04.2023 at about 10:15 p.m. Zahir Ali intimated through a phone call that Anam Bibi had endured burn injuries and is being shifted to POF Hospital Wah Cantt; that the complainant along with his wife and son Arslan reached hospital and found Anam Bibi fully burnt; that Anam Bibi remained admitted in hospital for one day and died on 02.04.2023 at about 6:45 p.m.; that Zahir Ali took the corpse of Anam Bibi to his house and destroyed proof of their guilt in the house; that the accused persons in connivance with each other committed murder of Anam Bibi after sprinkling petrol on her body and pretended that the occurrence took place by bursting of cooking cylinder.
3. Arguments heard and record perused.
4. It divulges from the record that the case stands registered for the homicidal death of one Anam Bibi (deceased), who was none other than the daughter of Abdul Salam (complainant). Anam Bibi was married with Zahir Ali and from this marriage, the couple was blessed with two kids. It is alleged by the complainant that in the wake of matrimonial disputes Anam Bibi was set ablaze by her in-laws on 01.04.2023 and due to these burn injuries, she took her last breath on the following day.
5. It is observed from the record that Shehnaz Bibi and Sumera Ilyas (petitioners) who were related with the deceased as mother-in-law (saas) and sister-in-law (nand) stand implicated in the case with the allegation of having participated in the crime. From the circumspective perusal of record, it is noticed that the incident occurred on 01.4.2023 whereas Anam Bibi died in the hospital on the following day while being provided medical treatment. The autopsy of the deceased was also carried out on 02.04.2023 whereafter the Medical Officer handed over various samples to the Investigating Officer for their onward examination by the experts but these do not include the hair or clip of the victim. Astonishingly, after about 100 days of the death of Anam Bibi, Abdul Salam (complainant) produced before the police a clip and hair of the deceased which were forwarded to PFSA and upon examination both these articles were found to have traces of some corrosive substance. Without dilating further upon the merits of the case, it is observed that the complainant has not put forth any justification as to why such important material was withheld by him and above all did not even form part of the samples which were forwarded by the Medical Officer to various quarters for examination. The delay of about more than three months in the registration of FIR, which is not explained in any manner, is another factor which favours the petitioners in respect of their plea for the grant of post arrest bail. Both the petitioners admittedly are household ladies having no criminal antecedents thus the benefit of first proviso to Section 497(1), Cr.P.C. is required to be extended to them inflexibly, more importantly when the prosecution is not in possession of sufficient incriminating material. If any reference is needed that can be made to the case reported as “Mst. Ghazala vs. The State and another” (2023 SCMR 887), the relevant portion of which is being reproduced hereunder:
“No doubt, the offence of Qatl-i-amd (intentional murder) punishable under Section 302, P.P.C. alleged against the petitioner falls within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure, 1898 (“Cr.P.C.”) but being a women, the petitioner’s case is covered by the first proviso to Section 497(1), Cr.P.C. The said proviso, as held in Tahira Batool case, 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), Cr.P.C. 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 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.”
After having formed an irresistible conclusion that the case of petitioners not only falls within the first proviso to Section 497(1), Cr.P.C. but also comes within the ambit of further inquiry as envisaged under Section 497(2), Cr.P.C., the instant petition is accepted and petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs. 2,00,000/- each with two sureties each in the like amount to the satisfaction of the learned trial Court.
6. On a departing note, a pressing need is felt to mention here that Under Article 10 of the Constitution of the Islamic Republic of Pakistan, 1973 it is a fundamental right of every accused to be provided with the grounds of arrest at the time of nabbing him. For reference sake Article 10 (1) is reproduced hereunder:
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.”
The Hon’ble Supreme Court of Pakistan in a case reported as “Abdul Qadir vs. Federation of Pakistan through Secretary, Ministry of Interior, Government of Pakistan, Islamabad and 5 grounds of arrest to be provided to an accused observed as under:
“The first and foremost requirement of the aforesaid Constitutional provision is that any person who is arrested and detained has to be informed, as soon as may be, of the grounds of his arrest and detention and no person can be arrested and detained in custody without complying with the above requirement.”
This Court in case reported as “Mst. Khatoon Bibi vs. State etc” (2021 P.Crl.L.J 593) reiterated the importance of Articles 9, 10 and 14 of the Constitution of the Islamic Republic of Pakistan in reference to the fundamental right of an accused to be informed about the grounds of his arrest and issued direction to the Inspector General of Police, Punjab for taking following steps:
(i) Station Diaries in all Police Stations be maintained in accordance with 22.48 of Police Rules, 1934 and Article 167 of Police Order, 2002.
(ii) In accordance with Article 10 of the Constitution, grounds of arrest must be provided to every accused immediately after taking him in police custody.
(iii) Inspections of all police stations be conducted in terms of Chapter-XX, Rule 5 of Police Rules, 1934.
(iv) Appropriate steps be taken for educating the police personnel in the Province in accordance with Articles 10 and 11 of UNCAT regarding torture during custody, interrogation, arrest, detention or imprisonment etc.
It is observed that unfortunately police is paying no heed to the importance of Article 10 of the Constitution as well as to the directions issued in the above mentioned two cases. The impassive attitude of the police is adding to the miseries of innocent litigants, making them volunerable to unjustified incarceration. Even previously, at least in three cases the Additional I.G (Investigation), Punjab was called in the Court so as to sensitize him about the importance of the grounds of arrest required to be provided to the accused arrested in a criminal case and he undertook to take appropriate steps towards the compliance of requirement but nothing as such has yet been done. Though the failure on the part of police to provide grounds of arrest to the accused warrants initiation of contempt proceedings but still lenient view is being taken by reissuance of direction for doing the needful in future. It is further expected that the learned Magistrates, seized with the matters of physical remand under Section 167, Cr.P.C. will ensure that grounds of arrest are provided to the accused by making them part of the police file. The Registrar of this Court is directed to send the copy of this order to all the Sessions Judges and the R.P.Os in the province.
(K.Q.B.) Petition accepted
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