Consider children's welfare in women's bail cases: SC

ISLAMABAD:

The Supreme Court has ruled that courts should consider the interests of a woman's children when adjudicating her bail application.

A division bench comprising Justice Muhammad Ali Mazhar and Justice Athar Minallah granted bail to a woman accused in a murder case, referencing Section 497 of the Code of Criminal Procedure (CrPC). 

The section states that individuals accused of non-bailable offences may be released on bail unless there are reasonable grounds to believe they are guilty of an offence punishable by death, life imprisonment, or imprisonment for ten years. However, the first proviso of the section allows for the conditional release on bail of persons under sixteen, women, and those who are sick or infirm.

Justice Muhammad Ali Mazhar, authoring the order, highlighted the importance of the proviso as beneficial legislation, stressing that the court must first determine whether the bail petitioner falls under this proviso. 

The order said that, undoubtedly, the court has to first satisfy whether the bail petitioner is covered under the proviso or not. 

It said that many women implicated in cognisable offences are often poverty-stricken, illiterate, and responsible for young children. These children sometimes live with their mothers in prison, exposing them to significant risks.

"There are also many examples where the children are to live in prisons with the mothers. This ground reality 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 ruling stated.

It emphasised that 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. 

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 court said that 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. 

Moreover, it elaborated, that it is a well-settled exposition of law that there is no hard and fast rule to regulate the exercise of the discretion for the 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 ruling explained 

The order further said that 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, CrPC.

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As for achieving bail, the accused has to show that the evidence or material collected by the prosecution or the plea taken by the defence visibly created a reasonable doubt or suspicion in the prosecution case.

The rule of consistency, or in other words, the doctrine of parity in criminal cases, including bail matters, recapitulates that where the incriminated and ascribed role to the accused is one and the same as that of the co-accused then the benefit extended to one accused should be extended to the co-accused also, on the principle that like cases should be treated alike, but after accurate evaluation and assessment of the co-offenders’ role in the commission of the alleged offence. 

While applying the doctrine of parity in bail matters, the Court is obligated to concentrate on the constituents of the role assigned to the accused and then decide whether a case for the grant of bail on the standard of parity or rule of consistency is made out or not.

The court noted that in the case at hand, the petitioner has not been attributed any direct role in firing but she is allegedly a mastermind, who hatched the criminal conspiracy for the murder of her husband with other co-accused; she also abetted the offence allegedly; she acted with common intention in concert with other accused persons, etc. 

However, the top court noted, it is a ground reality that the FIR was lodged against unknown persons, all the accused persons were implicated through supplementary statements of the complainant recorded one by one in different phases, and all the accused persons who were part of the criminal conspiracy, including the main accused who fired upon the deceased, have been granted bail.

Therefore, at this stage, there appear no reasonable grounds for believing that the petitioner is guilty of the offence jotted down in the FIR, and in our tentative assessment, the petitioner has not only made out a case of further inquiry but is also entitled to be enlarged on bail in view of the rule of consistency coupled with the benefit of the first proviso of Section 497, CrPC.