At bail stage it is neither permissible nor desirable to make a deep scrutiny

PLJ 2018 Sh.C. (AJ&K) 23

Present: M. Tabassum Aftab Alvi, J.

Mst. SOBIA SAGHIR--Petitioner

versus

STATE through Police Station Kotli and 2 others--Respondents

Crl. Revision Petition No. 205 of 2016, decided on 15.12.2016.

Bail--

----At bail stage it is neither permissible nor desirable to make a deep scrutiny or minute study of evidence on record--At same time, Courts are not expected to make an order in vacuum. [P. 29] A

Criminal Procedure Code, 1898 (V of 1898)--

----S. 498--Pre-arrest bail--Discretionary powers--Extraordinary relief on extra ordinary grounds--Discretionary powers in pre-arrest bail must be exercised with due care and caution especially in cases of heinous offences involving penalty of death or life imprisonment--It is worthwhile to observe here that powers available to Court under Section 498, Cr.P.C. are discretionary, which must be exercised with due care and caution especially in cases of heinous offences involving penalty of death or life imprisonment or imprisonment for 10 years--Discretion under provisions of aforesaid section is to be exercised by Court judicially and not arbitrarily--An anticipatory bail u/S. 498, Cr.P.C. being extraordinary relief.                                                                                 [P. 29] B

Criminal Jurisprudence--

----Principle--It is settled principle of criminal jurisprudence that a good ground for post arrest bail is no ground for pre-arrest bail.

                                                                                               [P. 29] C

Pre-arrest Bail--

----Criminal law--Principle--It is well settled principle of criminal law that pre-arrest bail should not be allowed in a routine matter, rather same is liable to be granted when accused is likely to be arrested for ulterior motives such as humiliation or unjustified harassment or where prosecution seems to be actuated to cause an irreparable injury to reputation and liberty.                                                       [P. 29] D

2004 SCR 36, ref.

AJ&K Islamic Penal Laws (Enforcement of Hudood & Tazeerat) Act, 1974--

----S. 25--Criminal revision--Pre-arrest bail--Declined by Lower Courts--Plea--Medical ground--Revision was filed--Allegation--Accused was implicated with malafide intention--Held: An accused person can be granted bail on ground of ailment, if matter of illness is such that it may detrimental to his/her life and it is not possible to give treatment to accused in criminal prison--However, a perusal of aforesaid letter reveals that period of required four weeks for further treatment has been completed almost a month ago--Accused was absented herself and in such like cases where accused does not appear before Court, even he/she is entitled to concession of bail, prayer of pre-arrest bail is refused--Petitioner-accused slipped away from Court below at time of announcing impugned order--Even she did not appear in person before this Court at time of arguments and remained seated in vehicle on pretext of ailment; therefore, she is not entitled to concession of pre-arrest bail even on Medical (ailment) ground too--Revision was dismissed.                                                      [P. 31 & 32] E, F & G

Ch. Abdus-Salam Arif and Kamran Tariq, Advocates for Petitioner-Accused.

Iftikhar Hussain Butt, Advocate for Complainant.

Sardar Mazhar Iqbal, Asst. A.G. for State.

Date of hearing: 14.12.2016.

Order

The captioned revision petition has been directed under Section 25 of the Azad Jammu & Kashmir Islamic Penal Laws (Enforcement of Hudood and Tazeerat Act, 1974, against the impugned order of Additional District Court of Criminal Jurisdiction, Kotli, dated 23^rd September, 2016, whereby, pre-arrest bail was declined to petitioner-accused.

2.  The precise facts leading to the instant Revision Petition are that complainant, Shahzad Gulshan, Advocate, lodged an oral report at Police Station City, Kotli, on 7th September, 2016, at 12:45am. He alleged in his oral report as under:--

“He is resident of Goi and has also constructed a house in Mandi Kotli, where he resides now-a-days. Today, on 6.9.2016, at 11:40 pm, he was sleeping in his bedroom, meanwhile, his wife, Mst.Sobia Saghir, amputated his penis with a sharp-edged weapon. He made hue and cry, whereupon, his brother Shahnawaz and mother Hafeez Begum came in the room. The motive behind the occurrence is that two months ago, his wife resented and went to the house of her parents,however, a few days ago, she was conciliated and brought back home. He requested to initiate legal proceedings against here.”

3.  As per oral report supra, an F.I.R. No. 231/2016, in offences under Sections 334 & 337, A.P.C. was registered against petitioner-accused at Police Station City, Kotli, on 7th September, 2016 and later on, offences under Sections 324 & 336, A.P.C were added.

4.  After registration of case, petitioner-accused moved an application for pre-arrest bail, before District Court of Criminal Jurisdiction, Kotli, on 7th September, 2016, which was entrusted to Additional District Court of Criminal Jurisdiction, Kotli, on the same day. The aforesaid latter Court granted pre-arrest bail to petitioner-accused vide order dated 8^th September, 2016, however, later on, the same was recalled,vide impugned order dated 23^rd September, 2016 hence, the instant revision petition. The petitioner-accused, during pendency of the instant revision petition, also moved a pre-arrest bail application before this Court, which, in presence of revision petition, was not allowed, however, the impugned order dated 23rd September, 2016, was suspended till next of hearing, which is yet intact.

5.  Ch. Abdus-Salam Arif and Kamran Tariq, Advocates, appeared on behalf of petitioner-accused, however, Ch. Abdus-Salam Arif, addressed arguments. He strenuously argued that a false, fictitious and fabricated case was registered against petitioner-accused with malafide reasons. The learned Counsel further submitted that occurrence was allegedly to be taken place on 6^th September, 2016, at 11:40pm, whereas, F.I.R. was lodged with delay of one hour, at 12:45am, which means that the same was registered after consultation. He contended that the case, initially, was registered in offences under Sections 334 & 337, A.P.C., but later on, in order to make the same heinous and weighty, the offences under Sections 324 & 336, A.P.C. were also added. The learned Counsel pointed out that complainant and accused contracted love marriage and in the ceremony so many people, including almost eighteen Ministers, participated; therefore, it is against common prudence that a wife, who loves so much with her husband, committed such like heinous crime. He stressed on the point that as per complainant report, his brother and mother came in the room quickly after occurrence, but it is against the nature that they neither caught hold petitioner-accused nor gave any beating to her. The learned Counsel maintained that no eyewitness is available in the case; therefore, petitioner-accused is entitled to the concession of bail. The learned Counsel voiced with vehemence that the prosecution changed its version time and again, as at first instant the place of occurrence was stated to be second floor of home, but later on, in statements recorded under Section 16, Cr.P.C. the same was stated to be first floor, which means that occurrence took place somewhere else, and probably someone else committed the same, but allegation was leveled against petitioner-accused with malice; therefore the aforementioned facts makes the prosecution case doubtful, which needs further inquiry, and it is settled principle of law that benefit of doubt goes in favour of accused even at bail stage. He further maintained that accused joined investigation and got recorded her statement, but the same with the connivance of police, was not made part of record. The learned Counsel emphasized that due to behavior of complainant, the accused lost mental balance and became abnormal, which fact is admitted by complainant in his application filed before Sessions Judge, preferred under Section 491, Cr.P.C., for recovery of minor daughter. He further argued that accused, prior to the instant occurrence, was mentally disturbed, which factum is supported by the reports of Armed Forces Institute of Mental Heath, Rawalpindi, annexed with the revision petition, and at that time, complainant himself got her checked from the concerned doctor. The learned Counsel submitted that accused, due to leveling such type of heinous allegation, is totally paralyzed, and she is still under treatment of Armed Forces Hospital, Rawalpindi, who is brought before Court by Ambulance on each date of hearing. He further argued that Section 84, A.P.C. deals with unsound mind persons and in such like cases, pre-arrest bail is granted to the accused. The learned Counsel finally craved that by setting aside the impugned order dated 23^rd September, 2016, pre-arrest bail of petitioner-accused, may be confirmed. The learned Counsel in support of his arguments cited the following case law:--

(i)       Hanif v. The State [1983 P.Cr.L.J (Karachi) 1972].

(ii)      Muhammad Jaffar v. The State [1987 P.Cr.L.J (Karachi) 1338].

(iii)     Bashir Ahmad v. Muhammad Yunus [1990 P.Cr.L.J (Lahore) 1035].

(iv)     Miss Shahla Raza v. The State [1991 MLD (Karachi) 1814].

(v)      Muhammad Hussain and others v. The State [1992 P.Cr.L.J. (Lahore) 1683].

(vi)     Rafaqat Ali v. The State [1994 P.Cr.L.J (Lahore) 379].

(vii)    Mehrban alias Munna v. The State [PLD 2002 SC 92].

(viii)   2005 P.Cr.L.J 186.

6.  Conversely Iftikhar Hussain Butt, the learned Counsel for complainant, vigorously contended that the instant incident is the first one in history of human beings, in which a wife amputated penis of her husband due to minor family differences, who contracted love marriage with pump and show, and so many people, including a huge member of Ministers of AJ&K Government, participated in the marriage ceremony. He submitted that after receiving injury, the condition of complainant was critical, however, F.I.R. was lodged promptly and in such like matters, delay of one hour does not matter. He further argued that the instant matter pertains to pre-arrest bail and the grounds for post arrest and pre-arrest bails are altogether different. The learned Counsel submitted that the offences involved in the present case entail maximum sentences of 35 years; therefore, accused, who is nominated in F.I.R. with specific role, is not entitled to concession of bail. The learned Counsel voiced with vehemence that after obtaining concession of pre- arrest bail, accused remained absconder, as she failed to appear before Court below under pretext of ailment, which factum also does not deserve her to be given pre-arrest bail concession. He while replying to argument of the learned Counsel for petitioner, regarding no any eye-witness of occurrence, submitted that tie between husband and wife is made much sanctified and proximity by Almighty Allah, which always needs privacy in order to fulfill the purpose of promoting human generation, but accused committed alleged offences at midnight, so the recoveries of blood-stained mattress clothing and coverlet are corroborative pieces of evidence, which fully implicate petitioner-accused with the alleged crime. The learned counsel while replying to the argument of the learned counsel for petitioner-accused, regarding her sickness, submitted that a perusal of pre-arrest bail application, moved before the Court below, would show that not a single word regarding sickness of accused was incorporated in it, which means that medical ground was not taken in the Court below; therefore, the same cannot be agitated before this Court, at the stage of revision petition. He pressed into service that medical reports annexed with the revision petition, would reveal that, prior to the occurrence, accused deposed before doctor that she had conflicts with her husband, hence, it cannot be said that accused is not involved in the instant hideous crime and occurrence was done by some other person. The learned Counsel further argued that accused sought pre-arrest bail by this Court, on medical ground, however, under Section 498,Cr.P.C., there is no such like provision regarding pre-arrest bail on medical ground, which ground is available  in post arrest bail, under Section 497, Cr.P.C. He submitted that there was no malafide on the part of police in conducting investigation, but the accused did not co-operate and remained absconder; therefore, she ought to be arrested for investigation purpose so that challan of the case may be submitted before that competent Court of law. The learned Counsel finally supported the impugned order on all counts and craved for dismissal of the instant revision petition. He cited the following authorities in support of his contentions:--

(i)       Basharat Khan and 7 others v. Sher Muhammad Khan [2002 SCR 278].

(ii)      Abdul Majid v. The State [2003 MLD (Karachi) 194].

(iii)     Ghulam Raza v. Khuda Bux and another [2005 SCMR 1904].

(iv)     Imtiaz Jawed v. The State [PLD 2008 (Karachi) 522].

(v)      Naseer Ahmad v. The State [2009 P.Cr.L.J. (Lahore) 1430)].

7.  Sardar Mazhar Iqbal, the learned Assistant Advocate General, representing the State, fully supported the arguments of the learned Counsel for complainant and added that the victim is an Advocate of District Bar, Kotli, whose health and honor were ruined by accused in the society. He further submitted that petitioner-accused did not join investigation, as putting up a hoax of sickness, who is also not appearing before the Court, so the concession of bail was rightly recalled by the Court below; hence, the impugned order may be maintained.

8.  I have heard lengthy arguments of the learned Advocates for parties and cursorily perused the record made available.

9.  The matter in hand pertains to pre-arrest bail and at the very outset, it may be pointed out that at bail stage it is neither permissible nor desirable to make a deep scrutiny or minute study of the evidence on the record. At the same time, the Courts are not expected to make an order in vacuum. The Courts of law are supposed to make a tentative assessment of the F.I.R., statements of P.Ws. recorded under Section 161, Cr.P.C., the recovery evidence, the defence plea, if any, other circumstances and facts of the case in order to reach a conclusion that whether in the given circumstances accused is entitled to concession of bail or not?

10.  It is worthwhile to observe here that the powers available to the Court under Section 498, Cr.P.C. are discretionary, which must be exercised with due care and caution especially in the cases of heinous offences involving the penalty of death or life imprisonment or imprisonment for 10 years. The discretion under the provisions of the aforesaid section is to be exercised by the Court judicially and not arbitrarily. An anticipatory bail under Section 498, Cr.P.C. being extraordinary relief, is granted on extraordinary grounds; therefore, it is settled principle of criminal jurisprudence that a good ground for post arrest bail is no ground for pre-arrest bail. Moreover, it is well settled principle of criminal law that pre-arrest bail should not be allowed in a routine matter, rather the same is liable to be granted when the accused is likely to be arrested for ulterior motives such as humiliation or unjustified harassment or where prosecution seems to be actuated to cause an irreparable injury to reputation and liberty. The aforesaid view is fortified from a case reported as Kareem Dad v. Zaheer & another (2004 SCR 36), wherein, it was held by the apex Court as under:--

“After hearing the respective contentions of the learned counsel for the parties and perusal of record, it may be stated that it is indeed correct that the ad-interim bail cannot be allowed in a routine matter and the powers available to the Court under Section 498, Cr.P.C. may be exercised with due care and caution especially in the cases of heinous offences involving the penalty of death or life imprisonment. Though the grant of bail in such like cases is not a rule but the concession of anticipatory bail can be extended where it is felt that an accused person might have been falsely implicated in the case with mala-fide intention and he is likely to suffer an irreparable injury to his dignity, respect and reputation.”

The distinction between the principles governing pre-arrest and after arrest bails are to be well known and this distinction should not be lost by Courts while deciding pre-arrest bail matters.

11.  Now, it is liable to be determined that whether in circumstances of the given case, accused was implicated with malafide intention. The allegation against petitioner-accused is that she, upon petty differences with her husband, amputated his penis at midnight of 6th September, 2016. The learned Counsel for accused firstly took stance that a false case was registered against his client, who is innocent and she did not commit the alleged offence. However, later on, he emphasized that accused is entitled to pre-arrest bail on medical ground, as she is suffering from schizophrenia/psychiatrist disease, even prior to the instant occurrence and referred to the medical case sheets of Armed Forces Institute of Mental Health, Rawalpindi, regarding illness of accused, appended with the revision petition. I have gone through the reports supra and found that in the medical case sheet dated 27th May, 2016, the doctor described History of present illness of the accused as under:

“Detailed assessment revealed that my patient was in usual state of health 03 months ago when she had conflicts with husband on account of financial issues and trivial matters. She got irritable and got annoyed with her husband on daily basis. She had argumentative behavior with the husband and had episodes of argumentative in which she started shouting and got agitated. She started suspicions to her husband in which she believed that her husband got involved in the extra narrative affairs. She then went into the home of her parents and remained there for 1 month. During the stay at her parents she used to cry that she would be harmed by her husband and his family.”

The aforesaid medical case sheet of patient was written by doctor prior to the instant occurrence, which indicates that accused and complainant had some conflicts on account of trivial matters. Therefore, prima-facie, probability of commission of alleged offence by petitioner-accused cannot be ruled out, especially in the circumstance when she solemnized love marriage with great pump and show, but later on, after one year, as per her version, complainant, her husband, got involved with someone else in love affair.

12.  After obtaining pre-arrest bail from Court below on 8th September, 2016, petitioner-accused one again got admission in AFIMH Rawalpindi, on 15th September, 2016, who, as per submission of the learned Counsel, is still under treatment. However, a perusal of record reveals that S.S.P., Kotli, wrote a letter bearing No. 16857-58, dated 30th September, 2016, to Commandant Military Hospital, Rawalpindi, requesting therein that what kind of disease accused is suffering and for how long she will remain under treatment? The Deputy Commandant, Shahzad Rauf, while giving reply to the aforesaid letter on 3rd October, 2016, stated as under:--

“It is intimated that Mst. Sobia Saghir, daughter of Muhammad Saghir, admitted in family ward of Armed Forces Institute of Mental Health (AFIMH) Rawalpindi for post Natal Psychosis on 15th September, 2016 and will remain under treatment for further four weeks.”

It may be observed here that an accused person can be granted bail on ground of ailment, if the matter of illness is such that it may detrimental to his/her life and it is not possible to give treatment to the accused in criminal prison. However, a perusal of the aforesaid letter reveals that the period of required four weeks for further treatment has been completed almost a month ago. Moreover, Capt. (AMC) Nida Saleem, Resident psychiatry, AFIMH, Rawalpindi, reviewed the patient/accused on 24th September, 2016, and wrote about her “(1) Stable, (2) Manageable, (3) No fresh complaint and (4) Eating & Sleeping well”. It would not be out of place to observe that petitioner-accused did not seek pre-arrest bail on medical ground from the Court below and plea of insanity was taken before this Court, which seems to be an afterthought ground. However, if for the sake of argument, it is assumed that accused was suffering from ailment, even then the aforesaid report showed her condition stabled; therefore, argument of the learned Counsel for accused, regarding sickness of accused at the moment, is misconceived, which is repelled.

13.  The contention of the learned Counsel for complainant that petitioner-accused did not appear before the Court at time of arguments, rather at the time of announcement of the impugned order, she willfully slipped away and absconded; therefore, she lost some of normal rights including the right of pre-arrest bail. A perusal of record reveals that the impugned order was announced on 23rd September, 2016, however, accused was absented herself and in such like cases where accused does not appear before the Court, even he/she is entitled to concession of bail, the prayer of pre-arrest bail is refused. The aforesaid view finds support from a case reported as Abdul Kareem v. The State [1988 PCr.L.J. (Lahore) 917], wherein, it was opined as under:--

“However, when the case was called for announcement of the judgment, the petitioner did not appear and is reported to have slipped away. One of the essential ingredients mentioned in the above rulings specifically in Zahoor Ahmad’s case (supra), for grant of pre-arrest bail, is that the accused has to surrender to the custody of the Court. By his absence/abscondence the petitioner has disentitled himself to bail before arrest. The prayer for bail before arrest is, therefore, refused. The petitioner is dismissed. The petitioner can be taken into custody/arrested by the police.”

The petitioner-accused slipped away from the Court below at the time of announcing the impugned order. Even she did not appear in person before this Court at the time of arguments and remained seated in vehicle on the pretext of ailment; therefore, she is not entitled to concession of pre-arrest bail even on the aforesaid ground too.

14.  I have also cursorily gone through the statements of P.Ws. recorded under Section 161, Cr.P.C., other material collected by the investigating agency as well as supra ailment case sheets history of accused and arrived at the considered view that petitioner-accused is, prima-facie, connected with the commission of alleged offences, who is, therefore, not entitled to concession of pre-arrest bail under cannon of law and justice. Therefore, the Additional District Court of Criminal Jurisdiction, Kotli, did not commit any illegality while declining confirmation of pre-arrest bail to petitioner-accused, who ought to be arrested for investigation purpose.

15.  The authorities cited by the learned counsel for petitioner-accused are distinguishable from the facts of the instant case, which do not render any help to the accused; hence, need not to be discussed.

16.  As a sequel to what has been discussed above, finding no substance in the instant revision petition, the same stands dismissed. Consequently, suspension order dated 28.10.2016, is recalled.

(A.A.K.)          Revision dismissed

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