2005 PLP 2477 (YLR)

Mst. Shazia Ghafoor-petitioner has sought her post-arrest bail in case F.I.R No.122/03 dated 29-10-2003 registered on the complaint of Mst. Shamim Ghaffar wife of Dr. Abdul Ghaffar under section 302/34 P.P.C at Police Station Budhla Sant, District Multan.

2. Precisely the allegation against the petitioner is that Mst. Shazia Ghafoor petitioner was adopted by the complainant and her husband as the couple was issueless. On 29-10-2003 in the month of Ramzan-ul-Mubarik at 5-00 a.m., after taking Sehri Mst. Shazia Ghafoor-petitioner took the tea pots in the kitchen and witnessed three men standing outside the window of the kitchen. She raised alarm whereby Dr. Abdul Ghafar and Abdul Sattar brother of Dr. Abdul Ghafar came out in the veranda. The said three men who were armed with fire-arms made fire at Dr. Abdul Ghaffar which he received on his chest. Dr. Abdul Ghafar fell down on the ground. Mst. Shamim Ghafar complainant identified one of the assailants as son of Shaban who used to give milk to the complainant daily. Regarding the remaining two assailants, she stated that she could identify them if brought before her.

3. The petitioner who claims her to be an eye-witness in the case was involved during the investigation of the case. In the investigation Shabbir and Liaquat nominated as accused by Mst. Shamim Ghafar the wife of deceased, were declared innocent whereas the petitioner and complainant Mst. Shamim Ghafar were declared as guilty. Accordingly she was arrested and after the investigation was sent to judicial lock-up.

4. Learned counsel for the petitioner submits that the petitioner namely Mst. Shazia Ghafoor is eye-witness of the occurrence who had seen the occurrence and has falsely been involved in this case. Further submits that it was untraced murder and the accused persons nominated in the F.I.R have been declared innocent with the connivance of police and accused party and the petitioner along with complainant have falsely been involved in this case by the accused party to save themselves from the commission of offence and in fact the petitioner is innocent in this case. That the petitioner is previously non-convict and is behind the bars since 27-1-2005. That no recovery has been effected from the petitioner and she has been declared innocent by the Investigating Officer which is verified by the Superintendent of Police (Investigation), Multan. Further submits that case against the petitioner is of further inquiry and she is entitled for the concession of bail. He has relied on "Sabir v. The State" (2003 MLD 18454) and "Dr. Muhammad Aslam v. The State" (1993 SCMR 2288).

5. On the other hand learned counsel appearing on behalf of the State assisted by learned counsel appearing on behalf of the complainant have vehemently opposed the bail petition and submit that the petitioner made extra-judicial confession and is not entitled to be released on bail.

6. I have heard learned counsel for the parties and carefully perused the record. There is no evidence against the petitioner. Petitioner is not nominated in the F.I.R. The evidence against the petitioner is that of extra-judicial confession which is the weak type of evidence. Petitioner being lady, her case falls under first proviso of section 497 Cr.P.C. Conclusion of trial is not in sight and petitioner cannot be kept behind the bars for an indefinite period. Even otherwise during investigation conducted by the Senior Superintendent of Police (Investigation) the petitioner was declared innocent. Although the findings of police is not ipse dixit binding on the trial Court yet the factum of innocence by police is very material for the just decision of the bail petition as it makes the case of petitioner of further enquiry. Nothing has been recovered from the petitioner and her case falls in the ambit of section 497(2), Cr.P.C. which entitles the petitioner for the concession of bail.

7. For what has been discussed above following respectfully the dictum as laid down in "Dr. Muhammad Aslam v. The State" (1993 SCMR 2288), the petitioner is allowed bail in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court. N.H.Q/S-382/L Bail allowed