2016 P Cr (PLP)

SAYYED MAZAHAR ALI AKBAR NAQVI, J.

Apprehending her arrest at the hands of police, by way of instant petition, the petitioner seeks her pre-arrest bail in case FIR No.177, dated 16.04.2015, offence under section 302, P.P.C., registered with Police Station, Qaboola Sharif, District Pakpattan.

2. Prosecution story, in brief as per contents of the crime report is that in between the night of 14/15.04.2015 at about 9:00 p.m. Allah Jewai, daughter of the complainant, who was wearing golden ear rings and having cash worth Rs.70,000/- went out of the house, but thereafter she did not return. On 16.04.2015, her dead body was found lying in the fields of one Muhammad Akram son of Muhammad Nawaz, but the gold ornaments as well as cash were missing. The complainant stated that the unknown accused have committed the murder of her daughter.

3. Learned counsel for the petitioner submits that the petitioner has falsely been roped in the instant case against the actual facts and circumstances with mala fides. It is argued that initially the crime report was lodged in the instant case at the instance of Mst. Jatti Bibi, real sister of the present petitioner, but she along with the present petitioner were subsequently arrayed as accused in this case against the facts qua the murder of Allah Jewai, who was daughter of said Jatti Bibi. Learned counsel submits that the petitioner is not named in the crime report; rather she has been implicated in this case on the basis of statements of Irshad and Muhammad Hussain, PWs, who have allegedly seen the petitioner along with her co-accused while throwing the dead body after strangulation. It is contended that the statements under section 161, Cr.P.C. of both the said PWs were recorded on 16.05.2015 i.e. after the elapse of one month and as such the same has no value in the eyes of law. Learned counsel submits that though as per stance of the prosecution, the petitioner made extra judicial confession before Dildar Hussain and Ahmad Yar, PWs, but the same is very weak type of evidence. Learned counsel contends that the petitioner is having a suckling female baby of eight months and it would be against the welfare of the minor if the petitioner is sent behind the bars. In such backdrop, learned counsel submits that the petitioner is entitled to the relief sought for by means of instant petition.

4. Contrarily, learned Deputy Prosecutor General assisted by learned counsel for the complainant has vehemently opposed this petition. It is argued that Irshad and Muhammad Hussain, PWs, have seen the petitioner along with her co-accused while throwing the dead body of the deceased after strangulation. It is added that both the said PWs, who are real brothers of the petitioner, have fully implicated the petitioner with the crime alleged through their statements under section 161, Cr.P.C. recorded on 16.05.2015. It is contended that the petitioner also made extra judicial confession before Dildar Hussain and Ahmad Yar, PWs. It is argued that the petitioner has been found guilty during the course of investigation. It is contended that the petitioner is involved in a case of capital punishment; therefore, she in no way is entitled to the extra ordinary relief of pre-arrest bail.

5. Arguments advanced from all corners have been heard. I have also gone through the record available on file.

6. Undoubtedly, there is marked distinction between pre-arrest bail and post arrest bail and consideration of both are on different footing but after the pronouncement of judgment reported as Meeran Bux v. The State and another (PLJ 1989 Supreme Court 526), scope of pre-arrest bail has been widened by the august Supreme Court of Pakistan. Initially the crime report was lodged at the instance of Mst. Jatti Bibi against unknown accused persons qua the murder of her real daughter namely Allah Jewai, but subsequently she along with the present petitioner, who is her real sister, has been implicated in this case on the basis of statements of Irshad and Muhammad Hussain, PWs, who have allegedly seen the petitioner along with her co-accused while throwing the dead body after strangulation on 16.04.2015. It is worth mentioning here that their statements under section 161, Cr.P.C. were recorded on 16.05.2015, i.e. after the elapse of one month. Here a question arises that if they had any knowledge in this regard, why they kept mum for such a long period. The delay in this regard has reduced its value to nil. Reliance in this regard is placed upon the dictum of law laid down by the august Supreme Court of Pakistan in reported case titled "Abdul Khaliq v. The State" (1996 SCMR 1553), wherein it has been held as under:- "

S. 161

Penal Code (XLV of 1860), S. 302/34

Late recording of statement under S. 161, Cr.P.C.

Value

Late recording of a statement of a prosecution witness under S. 161, Cr.P.C. reduces its value to nil unless delay is plausibly explained". As far as extra judicial confession allegedly made by the petitioner before Dildar and Ahmad Yar, PWs, is concerned, the same being very weak type of evidence, its authenticity shall be determined by the learned trial court during trial after recording of prosecution evidence. Apart from this, the petitioner is having a suckling baby of about eight months with her. In such-like cases where a female accused has a suckling baby, it has been the consistent view of the superior Courts of the country to prefer the welfare of the minor. Respectful reliance in this regard is placed upon the dictum of law laid down in the case of Mst. Nusrat v. The State (1996 SCMR 973). The relevant portion of the said case reads as follows:- "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 the 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".

7. Needless to mention that in the case in hand there is no direct evidence against the petitioner for participating in the commission of murder of the deceased. For the foregoing facts and circumstances, this Court is persuaded to accept this petition. Resultantly, the petition in hand is allowed and as a consequence whereof ad-interim pre-arrest bail already granted to the petitioner in terms of order dated 03.09.2015 is confirmed subject to her furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of learned trial Court. HBT/R-43/L Bail confirmed.