ISLAMABAD: The Supreme Court (SC) on Monday held that bail should be granted to women accused as a rule irrespective of the category of offence, but in case of refusal then it should be an exception.

“In cases of women, as mentioned in the first proviso to Section 497(1), irrespective of the category of the offence, bail is to be granted as a rule and refused 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) CrPC,” observed Justice Syed Mansoor Ali Shah in a judgment he wrote.

Section 497 of the Criminal Procedure Code (CrPC) deals with the bail in cases of non-bailable offence and says: (1) when any person accused of any non-bailable offence was arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a court, he may be released on bail. But he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years; provided that the court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused of such an offence be released on bail.

Justice Shah was a member of the two-judge Supreme Court bench, headed by Justice Qazi Faez Isa, which had taken up an appeal of Tahira Batool against the June 6, 2022, denial of post-arrest bail to her by the Islamabad High Court (IHC).

Observation comes in judgement on appeal against rejection of bail plea of maid arrested in house robbery

She was booked in a December 16, 2021, case registered at the police station of Loi Bher, Islamabad. According to the FIR, five unknown people entered the house of the complainant, forcibly detained him and his family along with their maid (Tahira Batool). They robbed the family of cash, jewellery, mobile phones and also took away the maid with them.

Through a supplementary statement made the same day, the complainant implicated the petitioner as a partner of the five suspects.

During the hearing, Advocate Mohammad Shahzad Siddiqui, the counsel for the petitioner, argued that in the crime report one Sidra was mentioned as being the maid in the house of the complainant and detained along with his family. There is no material on the record to show that the petitioner (Tahira Batool) was the maid.

Besides, according to the crime report, the maid (Sidra) had not been ascribed any role in the commission of robbery.

Advocate General Islamabad Jahnagir Khan Jadoon on behalf of the prosecution contended that the petitioner was in league with other co-accused who had committed the robbery in the house and some of the stolen items such as artificial jewellery and two mobile phones had been recovered from her.

The apex court in its order observed that being a woman the petitioner’s prayer for post-arrest bail should have been examined under the first proviso to Section 497(1) CrPC if she was not found entitled to bail under Section 497(2) of CrPC.

“The courts below have not adverted to it. Thus, the interest of justice requires the Supreme Court has to examine it,” the judgment explained, adding Section 497(1) CrPC which prohibits the grant of bail in certain offences was popularly known as the prohibitory clause and such accused was presumed innocent until proved guilty and bail cannot be withheld as punishment without conviction.

The court said it had examined the record of the case and did not find any material that would attract any exceptions in order to refuse bail to the petitioner.

“We are cognizant of the fact that the persons involved in the commission of offences of robbery or dacoity are usually the professional criminals and there is a likelihood that they would repeat the offence if enlarged on bail,” the order said.

“But the case of the present petitioner is distinguishable as she was working as a maid in the house of the complainant as per his own version; therefore, she does not appear to be a professional robber or dacoit and we do not find a likelihood of her repeating the offence if released on bail.”

The IHC order is, thus, not sustainable under the law and calls for interference by the apex court, the judgment said, adding the petition is converted into an appeal and the IHC order set aside.

The petitioner is also admitted to post-arrest bail subject to her furnishing bail bond worth Rs50,000 with two sureties in the like amount to the satisfaction of the trial court, the order said.

But the concession of bail may be cancelled by the competent court under Section 497(5) CrPC if she misuses it in any manner, including causing delay in the expeditious conclusion of the trial, the order added.

Published in Dawn, August 23rd, 2022