2000 PLP 2088 (YLR)

2. In support of this petition it has been argued by the learned counsel for the petitioner that the petitioner is not named in the F.I.R. as one of the perpetrators of the offences in question; the petitioner is a woman and, therefore, she is entitled to be admitted to bail in view of the provisions of the first proviso to subsection (1) of section 497, Cr.P.C., the petitioner is an old lady of fifty‑six years of age; the petitioner is sick and infirm and has a medical history; and there are only two pieces of evidence available with the prosecution so far to connect the petitioner with the offences in question but both the said pieces of evidence are actually of no use to the prosecution. It has, thus, been convassed that the petitioner should be admitted to bail till the conclusion of the trial against her. As against that the learned counsel for the State has vehemently opposed this petition by maintaining that the prosecution is possessed of sufficient material connecting the petitioner with the offences alleged against her and, therefore, she is not entitled to be admitted to bail.

3. After hearing the learned counsel for the parties and going through the record it has been noticed that on 14‑12‑1999 Fida Hussain alias Zulfiqar Ali accused had made a statement before a learned Magistrate under section 164, Cr.P.C. wherein he had confessed that he had murdered Muhammad Afzal Taj deceased upon the instigation of the present petitioner after receiving a handsome amount of money from her for doing the said job. According to the. learned counsel for the petitioner the necessary formalities for recording a statement under section 164, Cr.P.C. had not been complied with before recording the said statement of the said co- accused of the petitioner and, therefore, that statement cannot be read in evidence against the petitioner. He has also maintained that the said co‑accused of the petitioner namely Fida Hussain alias Zulfiqar Ali has now become a fugitive and, therefore, there is no likelihood of his becoming available during the trial to confirm his alleged statement recorded under section 164, Cr.P.C. Thus, according to the leaned counsel for the petitioner, the said statement under section 164, Cr.P.C. is of no avail to the prosecution. I have, however, remained unable to subscribe to this contention of the learned counsel for the petitioner. The abovementioned statement of Fida Hussain alias Zulfiqar Ali accused under section 164, Cr.P.C. is in the nature of a judicial confession and the same can be used by the learned trial Court as a piece of evidence even in the absence of the maker of the said statement. A perusal of the said statement shows that the said judicial confession prima facie implicates the present petitioner in the offences alleged against her. Any defect in the mode of recording of the said statement under section 164, Cr.P.C. shall be considered by the learned trial Court at the time of the trial and the said alleged defects cannot be pressed into service by the petitioner at this stage for ruling such a piece of evidence out of consideration.

4. Another piece of evidence being relied upon by the prosecution against the present petitioner is in the shape of an audio cassette wherein during a telephonic conversation the present petitioner is allegedly requiring her co‑accused to commit the murder of Muhammad Afzal Taj deceased. On the last of hearing, i.e. 6‑7‑2000 the learned counsel for the petitioner had maintained that the conversation recorded in the said audio cassette is not audible and, therefore, the said piece of evidence is also not of much use to the prosecution. In view of such a stand taken by the learned counsel for the petitioner it had been directed by this Court on the last date of hearing that the said audio cassette should be produced before this Court on the next date of hearing and the same may be played before this Court. Today the said audio cassette has been produced before this Court in a sealed cover and the same has been played in the Court‑room within the hearing of the Court after dealing it. The conversation recorded in the said audio cassette is quite clear and fully audible. After hearing the conversation recorded in the said audio cassette it may be observed, of course without prejudice to the petitioner's case before the learned trial Court, that prima facie the same implicates the petitioner in the offences alleged against her. It may be pertinent to mention here that by virtue of the provisions of Article 164 of the Qanun‑e‑Shahadat, 1984 such a piece of evidence is admissible in evidence.

5. For what has been discussed above this Court has reached an inescapable conclusion that both the above pieces of evidence available with the prosecution prima facie directly connect the petitioner with the C offences alleged against her and reasonable grounds are, therefore, prima facie available to believe in the involvement of the petitioner therein. 1t goes without saying that an offence under n section 302, P.P.C. attracts the prohibitory clause contained in subsection (1) of section 497, Cr.P.C.

6. As regards the contention of the learned counsel for the petitioner that the petitioner is a woman and, therefore, she is entitled to bail in view of the provisions of the first proviso to subsection (1) of section 497, Cr.P.C. suffice it to observe that there is no universal principle that in all such cases bail must necessarily be granted. It is true that the petitioner is a woman but at the same time it is equally true that the allegations levelled by the prosecution against her are that she had engaged a hired assasin and had then got her son‑in‑law murdered. The said murdered person was an Advocate of this Court. Hatching of such a conspiracy by the petitioner and engaging a hired assassin to cold‑bloodedly get a murder committed are allegations which are incompatible with the spirit of the provisions of the first proviso to subsection (1) of section 497, Cr.P.C. which is embedded in female softness and frailty. The role allegedly played by the petitioner in this case, if ultimately proved to be correct, is such that the same may put the ordinary male criminals to shame.

7. The learned counsel for the petitioner has maintained before this Court that the petitioner is an old and infirm lady as she is fifty‑six years old. This stand of the learned counsel for the petitioner is, however, contradicted by some documents placed by the petitioner herself on the present file. It is true that according to the petitioner's National Identity Card produced before this Court her age is about fifty‑six years but according to the document placed at page No.40 of this petition the petitioner's age was forty years in the year 1990. According to the document placed on the present file at page NoA1 the petitioner was thirty‑five years old in the year 1987. In view of this material being available on the present file the petitioner should be around fifty years of age at present and, by normal standards, a fifty years old woman would not like to be called either "old" or "infirm".

8. The learned counsel for the petitioner has lastly maintained that the petitioner is sick as she is suffering from a Heart disease besides suffering from other aliments. In this connection various documents as well as reports submitted by the Medical Officer of the concerned jail have been referred to by the learned counsel for the petitioner. A perusal of the material in that regard clearly shows that the petitioner's various ailments are not of recent origin and the same have recorded no significant deterioration in the recent past. The history of such aliments shows that the same were never perceived, considered or treated as life threatening at any stage.

9. For what has been discussed above prima facie reasonable grounds do exist to believe in the involvement of the petitioner in the offences alleged against her and, therefore, I have not felt persuaded to admit the petitioner to bail in this case. This petition is, therefore, dismissed. N.H.Q./Z‑19/L Bail refused.