Kawal Bibi vs The State etc.

Criminal Misc.No.3536-B/2013

Mst. Kanwal Bibi @ Ayesha Kanwal The State etc.

09.07.2013 Mr. Naveed Aslam, Advocate for the petitioner in Crl.Misc.No.3536-B of 2013 and petitioner in person.

Mr. Aamir Siddique Bajwa, Advocate for the petitioner in Crl.Misc.No.5442-B of 2013 and petitioner in person. Rao Abdul Qayyum Sajid, Advocate for the petitioner in Crl.Misc.No.6938-B of 2013 and petitioner in person. Mr. Muhammad Ikhlaq, DPG and Abdul Ghafoor ASI along with record for the State.

Through this single order, I propose to dispose of Crl.Misc.No.3536-B of 2013 (Mst. Kanwal Bibi v. The State etc), Crl. Misc.No.5442-B of 2013 (Rai Ghulam Mustafa Kamal v. The State etc) and Crl.Misc.No.6938-B of 2013 (Mst. Nasim Akhtar v. The State etc) as all the three petitions arise out of FIR No.227/13 dated 22.02.2013 under sections 420/468/471 PPC Police Station Factory Area, Lahore.

2.This Court issued notices to the complainant Mst. Aliya Asad but nobody has entered appearance on her behalf. She was also summoned through SHO Police Station Factory Area, Lahore. The police official inform to the Court that complainant nominated special attorney to whom it was contacted about fixation of case and he refused to appear in Court.

3.Briefly the prosecution case as per the FIR is that the complainant was owner of a house bearing No.668/A measuring 05- marlas situated in Mauza Korey, District Lahore. She established stitching unit in the said house. Three years back, the complainant leave for Canada and handed over said house along with complete stitching unit to her Manager Muhammad Nadeem/accused for running said unit in presence of Abid Safdar. Two months prior to lodging the FIR, Abid Safdar informed the complainant telephonically that Muhammad Nadeem by preparing forged documents had sold

out her house to accused Mst. Naseem Akhtar. Muhammad Nadeem/accused along with his wife Mst. Kanwal Bibi prepared forged documents by impersonation complainant Aliya Asad and prepared forged agreement to sell in favour of Rai Ghulam Mustafa Kamal/accused along with general power of attorney and later on Rai Ghulam Mustafa Kamal/accused further alienated said house in favour of accused Mst. Naseem Akhtar.

4.The learned counsel for the petitioner Mst. Kanwal Bibi has contended that the petitioner has a suckling baby aged about one month and if she was sent to Jail, the minor would not provide proper care and medical facilities and that she is a previously non convict.

5.The learned counsel for the petitioners namely Rai Ghulam Mustafa Kamal and Mst. Naseem Akhtar has contended that during investigation no recovery has been effected from the petitioners; that the investigation has been completed and as such the petitioners are not required by police; that the evidence in the case was documentary in nature, hence, if released on bail there was no likelihood of tampering with the prosecution evidence; that the provisions of sections 420/468/471 PPC are not applicable to the petitioners and the maximum sentence provided under the penal provisions is seven years hence, the case of the petitioners is not covered by prohibitory clause of section 497 Cr.P.C and as such the case against the petitioners being one of further inquiry, they are entitled to the concession of bail

6.The learned DPG has vehemently opposed the bail applications on the ground that all the accused/petitioners are nominated in the FIR. Specific roles have been attributed to them and they are not entitled for the concession of bail because no mala fide in specific terms has made out. Adds that accused Mst. Kanwal Bibi is main accused along with her husband Muhammad Nadeem. She impersonated Mst. Aliya Asad and submitted her duly signed statement in which she admitted that she affixed forged signatures of complainant on the agreement to sell in form of Ria Ghulam Mustafa Kamal on asking of her husband and also executed general power of attorney in favour of Rai Ghulam Mustafa Kamal by putting

forged signatures of complainant Aliya Asad; that all accused found guity during investigation and challan has been submitted and the trial was likely to commence in the near future, hence the petitioners are not entitled to the extra ordinary concession of pre-arrest bail.

7.I have heard the arguments of the learned counsel for the parties and have gone through the available record.

8.First I would like to take case of Rai Ghulam Mustafa Kamal and Mst. Naseem Akhtar. I find much weight in the contention of the learned counsels for the petitioners that evidence against the petitioners are in shape of documents, which is in the possession of the I.O as admitted by him that on 20.02.2013 earlier I.O collected documents i.e agreement to sell, general power of attorney and sale deeds, whereas recovery memos were not prepared by him and same were handed over to him and he is going to prepare recovery memos. All the documents are with prosecution, the same was not likely to be tampered with. Whether the petitioners are vicariously liable for the acts of their co-accused can only be determined at the trial after recording of evidence. The dictum laid down by the Hon’ble Supreme Court in Tariq Bashir case (PLD 1995 SC 34) is fully attracted to the case of the petitioners as in cases not punishable with death, imprisonment of life or ten years grant of bail is a rule and refusal is an exception. Even otherwise I.O states that challan has been submitted in the Court and no recovery is to be effected from the petitioners Rai Ghulam Mustafa Kamal and Mst. Naseem Akhtar, hence in view of statement of the I.O sending the petitioners to Jail at this stage would not serve any useful purpose.

9.Now I would like to take up case of Mst. Kanwal Bibi @ Ayesha Kanwal. I have looked into all the alleged documents. The forged documents i.e CNIC, general power of attorney and agreement to sell in favour of Rai Ghulam Mustafa Kamal/accused bears signatures of complainant Aalya Asad, whereas picture on CNIC and general power of attorney was fixed of Mst. Kanwal Bibi/accused. These documents clearly show that Mst. Kanwal Bibi @ Ayesha Kanwal is fully involved in the crime. I have also seen statement of the petitioner duly signed by her, wherein, she admitted her guilt in writing. Prima facie, this statement appears to

corroborate the prosecution story and the petitioner along with her husband Muhammad Nadeem prepared false document falling in first proviso of section 464 PPC. There are reasonable grounds to believe that accused Mst. Kanwal Bibi is guilty of offences under sections 420/468 and 471 PPC, whereas challan has been submitted in the Court. Mst. Kanwal Bibi @ Ayesha Kanwal petitioner/accused is stated to be mother of a suckling baby of one month. The learned DPG has also endorsed the above fact. It would be worth mentioning here that for welfare of the minor/child in the famous case of Ghamidiyyah, the Holy Prophet Muhammad (P.B.U.H) was pleased to suspend the sentence awarded to a pregnant woman not only till delivery of child but for the period of Riza’at as well. At the moment the child, a sucking baby will suffer, if bail is not allowed to the petitioner. The baby has not committed any offence nor he can be separated from her mother/the petitioner Mst. Kanwal Bibi @ Ayesha Kanwal. I gathered guidance from the judgment of the Apex Court in a case titled as Mst. Nusrat v. The State (1996 SCMR 973), wherein it is held that

“The suckling child of the petitioner kept in Jail is undoubtedly innocent. He is kept in Jail with mother obviously for his welfare. The concept of “welfare of minor” is incompatible with jail life. So, instead of detaining the innocent child infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor if the mother is released from the jail. In famous case of Ghamidiyyah, our Holy Prophet Muhammad (P.B.U.H) had suspended the sentence on pregnant woman, not only till delivery of the child but also postponed it till suckling period i.e two years, obviously for the welfare of the child. This shows the paramount importance and significance of the right of a suckling child in Islam and the unprecedented care taken of, and the protection given to a child born or expected to be born, by our Holy Prophet Muhammad (P.B.U.H). This golden principle of administration of justice enunciated by the Holy Prophet Muhammad (P.B.U.H) must be strictly observed and followed in our country”

10.For what has been discussed above, a case for pre-arrest bail has been made out. Resultantly, the ad-interim pre-arrest bail granted to the petitioner Mst. Kanwal Bibi @ Ayesha Kanwal vide order dated 19.03.2013, petitioner Mst. Naseem Akhtar vide order dated 06.06.2013 and Rai Ghulam Mustafa Kamal vide order dated 03.05.2013 is confirmed subject to their furnishing fresh bail bonds in the sum of Rs.1,00,000/- each with one surety each in the like amount to the satisfaction of the learned trial court.

(Aalia Neelum) Judge

Approved for reporting.

Judge

*Tariq