Mst. Muhmadia vs State

2014 Y L R 663

[Peshawar]

Before Muhammad Daud Khan, J

Mst. MUHMADIA---Petitioner

Versus

The STATE through A.A.-G. and another---Respondents

Criminal Bail Application No.376-M of 2013, decided on 29th August, 2013.

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

----S. 497---Penal Code (XLV of 1860), Ss.496-A & 496-B---Enticing, or taking away, or detaining with criminal intent a woman, fornication---Bail, grant of---Case was one of moral turpitude and conduct of accused was undesirable for the society, especially in the area of Pakhtunkhwa culture, where Injunctions of Religion were strictly followed---Statement of accused under S.164, Cr.P.C., the proceedings under S.156(3), Cr.P.C., medical report, recoveries of Cellular Phones, and statements of independent witnesses, suggested reasonable ground for the accusation---Section 496-A, P.P.C. however, being not applicable to the case of accused, and S.496-B, P.P.C. was bailable offence, accused, in circumstances, was entitled for the grant of bail---Accused was directed to be released on bail.

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

----Ss. 497, 498 & 499---Bail, grant of---Sureties, type of---Duty of Court---Court accepting the bail application of an accused, was to prescribe conditions about the type of sureties, and the satisfaction of the officer accepting the surety bond---Even a routine bail order would contain certain conditions between the lines---Such imposition of condition, was not an illegality, but it was a practice and a requirement of the administration of justice---If an accused was unable to furnish the sureties of the type required by the court, he could presume that his request for grant of bail had been declined---Court could not pass bail orders mechanically, but it had to take into stock the status of the sureties, their availability in case, their presence was needed by the court, their capability of having access to accused; as well as the circumstances which provide a satisfaction to the court that the order would not be misused for the continuation of the illegality.

Mst. Shehnaz Bibi v. The State 2005 MLD 922 rel.

Abdul Jalal and Saeed Ahmed for Petitioner.

Haleem Khan for the Complainant.

Muhammad Javid A.A.-G. for the State.

Date of hearing: 29th August, 2013.

JUDGMENT

MUHAMMAD DAUD KHAN, J.--Mst. Muhmadia, the accused/petitioner is seeking bail in case F.I.R. No.275 dated 15-7-2013, Police Station Kalakot, registered under sections 496-A/496-B P.P.C., as the same was refused to her by the Courts below.

2.On 13-7-2013, the husband of the accused/petitioner, Syed Nawab complainant made report to Judicial Magistrate, Matta, Swat against co-accused Aitebar Muhammad son of Ahmad, for the charge of abduction of his wife, accused/ petitioner Mst. Muhmadia, since 7-6-2013. Subsequently, on recovery of Mst. Muhmadia petitioner, her statement under section 164, Cr.P.C. was recorded by Judicial Magistrate, on the basis of which instant case was registered in which she along with co-accused Aitebar Muhammad were charged. The said statement of accused/petitioner is as under:--

3.Arguments heard and record perused.

4.The statement of accused/petitioner under section 164 Cr.P.C., the proceedings under section 156(3), Cr.P.C., medical report, recoveries of cellular phones and statements of independent witnesses Mst. Nusrat Bibi and Mst. Mansoba suggest reasonable ground for the accusation. At this stage, this Court is confined only to the section of law for which the accused/ petitioner is charged. Section 496-A, P.P.C. is not applicable to the accused/ petitioner, while section 496-B, P.P.C. is bailable offence. Therefore, she is entitled for the grant of bail.

5.As the case is one of moral turpitude and conduct of the accused/ petitioner is undesirable for the society, especially in this area of Pakhtun culture, where Injunctions of Religion are followed strictly.

6.The Court accepting the bail application of an accused is duty bound to prescribe conditions about the type of sureties and the satisfaction of the officer accepting the surety bond, therefore, even, a routine bail order contains certain conditions between the lines. This imposition of conditions is not an illegality, rather it is a practice and a requirement of the administration of justice. If an accused is unable to furnish the sureties of the type required by the Court, he can presume that his request for grant of bail has been regretted. The Court cannot pass bail orders mechanically, rather it has to take into stock the status of the sureties, their availability in case their presence is needed by the court, their capability of having access to the accused as well as the circumstances which provide a satisfaction to the Court that the order will not be misused for the continuation of an illegality. Reliance can be made on case law reported in 2005 MLD 922 [Peshawar] "Mst. Shehnaz Bibi v. The State".

7.In the peculiar circumstances, the accused/petitioner cannot be given free hand to furnish bail sureties by anyone.

In the light of above observations, this application for bail is allowed and the accused/petitioner is directed to be released on bail provided she furnishes bail bonds in the sum of Rs.200,000 (Rupees Two Lac) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate/MOD, with the condition that the sureties must be related to the accused in prohibited degree i.e. father and brother etc. Needless to say, that the above tentative assessment is for the purpose of bail which shall not prejudice the learned trial Court.

Above are reasons of my short order of the even date.

HBT/519/P Bail granted.