2004 PLP 1186 (YLR)

Having been involved in case F.I.R. 691 dated 3-9-2003 under sections 302/148/149, P.P.C. registered at Police Station Prang Tehsil and District Charsadda the accused-petitioner applied for her release on bail in the Court of learned Judicial Magistrate Charsadda who vide his order dated 6-10-2003 dismissed the same. Thereafter he moved the Court of learned Additional Sessions Judge, Charsadda for her release on bail who also dismissed her application vide his order dated 5-11-2003. Now she has moved this Court for her release on bail.

2. On 2-9-2003 Mst. Asia was found dead in the house where she was living. The matter was reported by Sanaullah, her husband on the following day to Police. His report was incorporated in Daily Diary No.9 dated 3-9-2003 and no proceedings were initiated against either of the accused by the police authorities despite having gained the knowledge that a lady was done to death. This prompted Tila Muhammad, father of the deceased to file an application before the learned Sessions Judge Charsadda for directing the police authorities to register a case of murder of his daughter against the accused-petitioner and 5 others, the learned Sessions Judge Charsadda directed the concerned authorities to - register the F.I.R., upon which the case in hand was registered.

3. Mr. Javed A. Khan, Advocate the learned counsel representing the petitioner argued that there was no evidence whatsoever available on record to connect the accused-petitioner with the offence. The learned Sessions Judge Charsadda had been influenced by the remarks made in the post mortem report, wherein the Doctor had found redish/bluish discolouration on the body of the deceased, therefore, she directed the registration of a case. The Investigation Agency did not agree with the post-mortem, hence an application on 18-10-2003 for exhumation of the dead body of the deceased was made, which was allowed and consequently on 20-10-2003 the dead body was exhumed and examined by Board of Doctors, which totally negated the earlier post-mortem report.

4. It was also argued that pieces of liver, stomach and urine were sent to F.S.L. Lahore for examination. As per report of the Chemical Examiner no poison was detected in the referred articles, therefore, there was no case against the accused-petitioner.

5. On the other hand Mr. Jehanzeb Khan, Advocate the learned counsel for the complainant and Mr. Shah Nawaz Khan, Advocate the learned counsel representing the State argued that although the occurrence took place at 9-00 p.m. in the month of September, but the husband of the deceased did not bother to inform either the parents of the deceased, who were living hardly 100 paces away from the house, where the occurrence took place or the police about the occurrence. The police at its own came to know about the incident and reached the spot after 4 hours of the occurrence, but did not register the case. The father of the deceased according to the learned counsel for the complainant, went to the police so many times requesting to register the case, but each time he was declined, therefore, he moved an application before the learned Sessions Judge who after going through the post mortem report directed the concerned police authorities to register the case. Not only the post-mortem report supports the prosecution case, but the accused-petitioner herself stated before the police having administered poison to the deceased, therefore, there was sufficient evidence to connect the accused-petitioner, who was mother-in-law of the deceased, with the commission of offence.

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

7. I am inclined to release the accused-petitioner on bail firstly because at the moment there is no direct evidence connect the accused-petitioner with the commission of offence. Being mother-in- law of the deceased, she was living in the same house. She cannot be saddled with the responsibility of murder of the deceased only because she was living under the same roof. Secondly, the earlier post-mort report does not find support from the report given by the Board consisting of Dr. Muhammad Halim, Surgical Specialist Dr. Abdul Qadir, Medical Specilist and Dr. Roobi Mukhtiar S.W. M.O. dated 20-10-2003, which examined the dead body after its exhumation. Thirdly, the F.S.L. report given by FSL Lahore (Punjab) dated 8-11-2003 also shows that no poison was detected in the pieces of liver, stomach and in the urine. Fourthly, the statement of accused petitioner that she administered poison to the deceased has no legal/evidentiary value being statement before the police. No effort whatsoever was made to get her confessional statement recorded till date. Fifthly, the accused-petitioner is a lady of advanced age nearing

60. I, therefore, accept the application in hand and allow bail to the accused petitioner provided she furnishes bail bonds to the tune of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the Judicial Magistrate Charsadda, who shall ensure that the sureties are reliable, local and men of means. H.B.T./36/P Bail granted.