2014 PLP 158 (YLR)

Through this petition the petitioners have prayed for the grant of post-arrest bail in case F.I.R. No.1 of 2013 dated 1-1-2013 offences under sections 302/ 109/365-A, P.P.C. registered with Police Station Sama Satta, Tehsil and District Bahawalpur.

2. Briefly the prosecution case, as per the F.I.R. is that on 26-12-2012 at about 9-00 p.m., the complainant went to his tube-well situated at Mouza Sheik Shajra, so as to give meal to his brother namely Muhammad Shahbaz, Muhammad Zeshan son of Abdul Majeed and Muhammad Farhan son of Mushtaq Ahmad who used to live there when he reached there, he did not find them there. The complainant waited, during which period Mukhtar Ahmad, Allah Dittah and Muhammad Ashfaq sons of Altaf Hussain resident of the said locality informed the petitioner that sometime earlier they were passing through the tube-well where they saw one car and one Motorcycle parked along with 4 persons whom they can identify if shown were standing. Thereafter the complainant as per prosecution story kept on looking for the said three missing persons but his efforts ended in vain and resultantly lodged the F.I.R. against 4 unknown persons under section 395, P.P.C.

3. Subsequent to the lodging of F.I.R. and during investigation of this case offences under sections 365-A and 302, P.P.C. were added and other co-accused including the petitioners were nominated in the case by the two alleged abductees namely Muhammad Zeshan and Muhammad Shahbaz in their statements recorded under section 161 Cr.P.C. on 15-1-2013 implicating the petitioners along with others by assigning the role of their abduction and murder of Muhammad Farhan son of Mushtaq Ahmad.

4. It has been contended on behalf of the petitioners that both the petitioners have neither been named in the F.I.R. nor any role has been assigned to them by the complainant side so as to connect them with the commission of the offences as levelled against them i.e. kidnapping for ransom or committing Qatl-e-amd; that there is no allegation of abduction or surveillance in the prosecution story against the petitioners; that both the petitioners are females and as such they are entitled to the grant of post-arrest bail under the law; that Khursheed Bibi is in jail with a suckling baby aged about 7/8 months and as such she is entitled to the grant of post-arrest bail in light of various judgments of the honourable Supreme Court of Pakistan and this Court in similar cases; that the petitioners being law-abiding citizens of Islamic Republic of Pakistan have no previous criminal record and that the case of the petitioners on the face of it falls within the ambit of further probe for which evidence is required and it will be a futile exercise to keep the petitioners behind the bar for an indefinite period.

5. On the other hand, learned D.P.G. assisted by learned counsel for the complainant has strongly opposed the bail petition while arguing that the petitioners and the other co-accused have jointly committed the offences levelled against them with their common intention and as such all the accused are liable to be punished equally; that recovery of Rs.80,000 has been effected from the petitioners out of the total amount of Rs.20,00,000, therefore, the offences levelled against them on the face of record have been proved; that the alleged offences fall within the ambit of prohibitory clause of section 497(1), Cr.P.C, therefore, the petitioners are not entitled the relief prayed for.

6. We have heard the learned counsel for the parties and perused the record.

7. Admittedly the petitioners are not named in the F.I.R. No allegation of either abduction, kidnapping for ransom or commission of Qatl-e-amd has been alleged by the prosecution against the petitioners. The prosecution is silent with regard to the abduction, kidnapping for ransom, surveillance and committing of Qatl-e-amd against the petitioners as apparent from the contents of the F.I.R. the offences mentioned therein nominating 4 persons who can be identified on presentation by the witnesses mentioned in the F.I.R. On 15-1-2013, the alleged abductees namely Muhammad Zeshan and Muhammad Shahbaz got recorded their statements before the police under section 161, Cr.P.C. and involved the petitioners with the role that the petitioners used to give meal to their co-accused and have not levelled the allegation regarding kidnapping for ransom and committing Qatl-e-amd. The petitioners were arrested on 12-3-2013 and after investigation they were sent to judicial lock up. Admittedly petitioner No.2 Khurshid Bibi is in jail with a suckling baby aged about 7/8 months which fact is not denied by the prosecution. It has been held by the Hon'ble Supreme court of Pakistan in the case of Mst.NUSRAT v. THE STATE" (1996 SCMR 973), wherein it has been held by the Honourbale Supreme of Pakistan as under:-- "Suckling child of accused was kept with mother in jail obviously for his welfare

Concept of "welfare of minor" was compatible with jail life

Instead of detaining the innocent child/infant in the jail for the crime allegedly committed by his mother, it was in the interest of justice as well as welfare of minor if the mother was released from jail

"

8. Similar view has been followed by this Court in a number of cases. Reliance is placed upon "GHULAM SAKINA AND OTHERS v. THE STATE" (1991 PCr.LJ 1316) "Mst. IRSHAD alias Mst. WAZIRAN v. THE STATE" (2006 PCr.LJ 251), "THE STATE v. FARZANA KAUSAR" (2008 YLR 2600), "NASREEN BIBI v. THE STATE" (2011 YLR 1028) AND Mst. KABELA v. THE STATE" (2011 YLR 2975). In all the said verdicts of this Court, a mother of a suckling baby has been given the right of the concession of bail."

9. Admittedly both the petitioners are females, therefore, the case in the given circumstances is also covered within the ambit of Ist Proviso of section 497(1) Cr.P.C. A Division Bench of this Court in the case of "Mst. HURRIYA NAVEED v. THE STATE and another" (2011 MLD 1292 (Lahore) has taken a similar view stated as under:-- "Accused though was nominated in the F.I.R., but being fair sex her case would become within the mischief of proviso of S.497, Cr.P.C.

Accused was in family way and to her extent investi-gation was complete; and she was no more required for further investigation

Facts and circumstances of the case, prima facie, persuaded the court to grant her bail

Accused was admitted to post-arrest bail, in the circumstances."

10. In the case of "LIAQAT ALI v. MST. BASHIRAN BIBI" (1994 SCMR 1729 the Hon'ble Supreme Court of Pakistan was pleased to uphold the bail granting order passed by the High Court on the ground that she being woman was covered by the Ist Proviso of section 497(1), (Cr.P.C. This view is given in the following cases as well:-- "2013 PCr.LJ 48, 2012 YLR 745,2012 PCr.LJ 841, PLD 2005 Lahore 352, 1983 PCr.LJ 1787, 1989 PCr.LJ 179, 1991 PCr.LJ 1 (suo motu bail granted to female accused), 2007 YLR 3132, 2005 PCr.LJ 164, 2003 YLR 3031, 2002 MLD 1071, 2002 MLD 1026, 2008 YLR 2600, 2006 YLR 1403, 1991 MLD 1814 and 1984 PCr.LJ 129 whereby the grant of bail to a female is given as her case fell under Ist proviso of section 497, Cr.P.C."

11. Keeping in view the above stated facts it is an admitted fact that that both the petitioners are females and their case is being covered by the Ist Proviso of section 497(1), Cr.P.C. coupled with the fact that petitioner No.2 is in jail with her suckling baby aged about 7/8 months, we hold that the petitioners are entitled to the grant of post-arrest bail as the prosecution's side has failed to point out any exceptional ground so as to keep the petitioners behind the bars since 12-3-2013, particularly, keeping in view the fact that the petitioners are not named in the F.I.R. and are previous non-convict. The challan of this case has not been submitted to the court of competent jurisdiction and the petitioners are not required by the prosecution side for any further investigation. It would be uncalled for if they are kept behind the bars for an indefinite period.

12. In view of the forgoing circumstances, the application is allowed and the petitioners are granted post-arrest bail under the Ist proviso of section 497(1), Cr.P.C. being the women subject to furnishing bail bond to the tune of Rs.2,00,000 (two lacs) each with two sureties each in the like amount to the satisfaction of learned trial Court.

13. Before parting with this order, it is made clear that the assessment made in this order is tentative in nature and it will not effect upon the merits of the case while deciding it by the learned trial Court. MH/P-20/L Bail allowed.