P L D 1981 Karachi 45 (PLP)

The applicant has been charged for offence under sections 364, 34, 302, and 11 of Offence of Zina (Enforcement of Hudood) Ordinance, 1979. The allegations against her are that she alongwith co‑accused Raja went in a car to the house of Shahnaz (deceased) at about quarter to 11 a. m. and took her from there on the pretext that Mst. Lilly (sister of the applicant) has sent for her as she was leaving for America. Shahnaz did not return home thereafter. Such F. I. R. was lodged by Panja father of 'Shahnaz' on 28‑7‑1980 at Police Station Joharabad, Karachi. The Police during the course of investigation recovered the dead body of Mst. Shahnaz from a Bungalow shown by one Akbar, maternal uncle of the above‑mentioned Raja and applied section 302, P. P. C. The applicant and co‑accused Raja have been challaned to face trial for the above offences. The bail applications on behalf of the applicant were twice moved before the learned Vth Additional Sessions Judge, Karachi who dismissed the same by his orders dated 3‑8‑1980 and 10‑8‑1980 respectively. The learned counsel for the applicant contends that the only allegation against the applicant was that of calling Mat. Shahnaz from her house and accompanying her in the car after Shahnaz (deceased) left her house informing her mother that she was sent by Mst. Lilly, sister‑ of the applicant who was to leave for United States of America. The applicant has been subsequent ly dropped at Tariq Road of P. E. C. H. S., Karachi and she therefore cannot be made responsible for acts of the co‑accused as she neither shared common intention with him nor had any knowledge about his designs to commit any kind of offer . e. Therefore her case requires further inquiry as contemplated by section 497(2)., Cr. P. C. The learned Additional Advocate‑General appearing for the State does not deny the factual position and concedes to grant of bail to the applicant as there is no evidence against the applicant except that of calling Mst. Shahnaz from her house and taking her in a car alongwith the co‑accused. He has also pointed out that Mst. Salah Tabassum in her statement under section 161, Cr. P. C. has stated that the deceased and co‑accused Raja were having friendly terms with each other and they used to move together even before the day of incident. I have beard the learned counsel for the applicant as well as State. There is no denial of the fact that only allegations against the applicant are that of calling Mst. Shahnaz (deceased) from her house and going with her in the ca alongwith co‑accused Raja. It has not been disputed that she subsequently dropped at Tariq Road, Karachi. There being no other evidence against her, application of section 34, P. P. C. for sharing common intention with co -accused Raja against the applicant would be premature at this stage. For attracting section 34, P. P. C. it has to be established that the person sought to be saddled with responsibility was animated with common intention as distinct from similar intention. The F. I. R. does not disclose such thing against the applicant so as to saddle her with responsibility of common intention. There are number of decided cases on this point, and some of them have been referred to in 1980 P Cr. L J

184. Therefore apart from the fact that the applicant is a woman, her case even otherwise comes within purview of further inquiry as contemplated by section 497(2), Cr. P. C. Therefore without going into the merits of the case, I, grant bail to the applicant who shall be released on furnishing her solvent surety in the sum of Rs. 20,000, and P. R. bond in the like amount to the satisfaction of the trial Court. S. G .D . Bail allowed