2011 PLP 72 (YLR)

SHAHID HAMEED DAR, J.--Petitioner Mst. Saima Gul daughter of Sher' Zaman seeks pre-arrest bail in case F.I.R. No. 3 of 2010, dated 2-1-2010 under section 302/34, P.P.C. registered at Police Station Wah Cantt. District Rawalpindi on the complaint of Shahzad Elahi.

2. Precisely, the case of the prosecution as contained in the F.I.R. is that Mst. Farhat Yasmeen the sister of the complainant was married with Babar Hussain in year, 2000, two daughters were born out of the wedlock; Babar Hussain contracted second marriage with Saima Gul (Petitioner) through courtesy of one Jahangir; about two months prior to the instant occurrence, certain differences crept up between Babar Hussain and his second wife Mst. Saima Gul (petitioner), so he rejoined his first wife and started living with her; Babar Hussain, Jahangir and Malik Tariq were friends and used to commit crimes especially pick-pocketing; Jahangir and Malik Tariq took Babar Hussain with them from his house on 29-12-2009 in presence of his first wife Mst. Farhat Yasmeen; Babar Hussain informed the complainant telephonically on 1-1-2010 that he was the company of Jahangir etc., and needed some clothes which be supplied to him at a particular place; the complainant waited for Babar Hussain at the said place, as told by him, but he did not turn up; the complainant received a telephone call in the evening of 1-1-2010 that Babar Hussain had suffered a massive heart attack and his dead body was lying in a Hospital at Wah Cantt. whereupon, the complainant along with others reached the said Hospital and found the dead body of Babar Hussain his "Behnoi", lying in the hospital; he showed suspicion that accused Jahangir and rnalik Tariq, being in league with Mst. Saima Gill (petitioner) and her brother Jamshaid, had committed the murder of Babar Hussain either by throttling him or by administering him poison. The motive behind the occurrence was that Babar Hussain had contracted second marriage with Mst. Saima Gul (petitioner), courtesy Jahangir etc. but he was displeased with his second wife for the last two months, and that Saima Gul etc., had extended him threats of murder.

3. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in this case due to malice and ulterior motives of the complainant; there is no direct or indirect incriminating evidence against the petitioner and she has been falsely roped in this case due to mala fide intention of the complainant; mere mentioning the name of the petitioner in the F.I.R. cannot disentitle her to grant of bail as the prosecution has failed to produce any connecting evidence against her during the course of investigation; the deceased was involved in criminal activities so, she, being displeased, got published an advertisement of ostracism in this regard in the newspapers almost a year before the occurrence; the F.I.R. is self discrepant and the complainant has admitted in the F.I.R. that the deceased having developed differences with the petitioner's had been living with his first wife for a period of two months, prior to the occurrence; lastly submits that the case of the petitioner falls within the ambit of further inquiry as envisaged under section 497(2), Cr.P.C.

4. On the other hand, learned DPG assisted by the learned counsel for the complainant has strenuously opposed the grant of bail to the petitioner with the contention that the petitioner is specially nominated in the F.I.R. with the allegation that she had abetted her co-accused to murder Babar Hussain deceased; the petitioner is an absconder and being a fugitive from law, she had lost some of her legal rights guaranteed by the substantive as well as the procedural law; the petitioner has not joined the investigation and has misused the concession of bail; the petitioner has committed a heinous offence which catches the prohibition of section 497, Cr.P.C., therefore, she is not entitled for the relief as prayed for reliance has been placed on Muhammad Azam v. The State (1996 SCMR 71) and Muhammad Arshad and another v. The State and another (1996 SCMR 74).

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

6. I have gone through the text of the F.I.R. minutely but have failed to find any incriminating material against the petitioner except, that she has been nominated as a suspect in the F.I.R. along with her real brother Jamshaid. The story of the F.I.R. is self discrepant and mainly revolves around the fact that after having contracted second marriage with Mst. Saima Gul (petitioner), Babar Hussain deceased developed differences with her and started living with his first wife, about two months prior to the alleged occurrence. It has been contended by the learned counsel for the complainant that, Babar Hussain deceased was a pick-pocket and he in the cahoots of Jahangir and Malik Tariq, oftenly committed the above-said offence jointly. There is no cavail to the fact that an accused who absconds after the occurrence and opts to be a fugitive from law would normally lose some of his normal rights udder the substantive as well as the procedural law, but the fact remains that mere abscondence cannot impede the grant of bail to an accused if his case is open to further inquiry into his guilt, within the scope of section 497(2), Cr.P.C.

7. The concession of bail before arrest is though exceptional in nature and its scope has been held to be limited as compared to bail after arrest yet, it can be c validly granted to an accused, regardless of the charge against him, if his case is open to further inquiry into his guilt within the meaning of section 497(2), Cr.P.C. I am fortified in my view while rely upon a glittering judgment of the august Supreme Court of Pakistan, reported as Miran Bux v. The State and another (PLD 1989 SC 347), wherein the august Supreme Court has confirmed the ad interim pre-arrest bail of Miran Bux, petitioner in a murder case after having found the case of the petitioner falling within the definition of section 497(2), Cr.P.C. The petitioner is a lady whose case is also covered by the 1st proviso to section 497, Cr.P.C. Mere mentioning of name of the petitioner in the F.I.R. as an accused, registered for an offence entitling capital punishment, cannot be deemed as a circumstance to deny her bail before arrest when he case otherwise calls for further inquiry. The differences between the parties is an admitted fact. The complainant, being the real brother of the first wife of Babar Hussain deceased was naturally possessed with bias and heart burning against the accused-petitioner as she had up-set the matrimonial life of his real sister Mst. Farhat Yasmeen who was the 1st wife of the deceased. Prima facie, there are reasonable grounds to believe that the petitioner has not committed any non-bailable offence and her case is open to further probe into her guilt. Her false implication in the instant case, due to malice and ulterior motives of the complainant cannot be ruled put.

8. For the foregoing reasons, I accept this petition and confirm the ad-interim pre-arrest bail, allowed to the petitioner on 6-9-2010 subject to furnishing fresh bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the trial Court.

9. Before parting with this order it is clarified that the petitioner shall keep on joining the investigation in this case as and when required by the I.O. and if she hesitates in joining the same, prosecution shall be at liberty to lodge a request before this Court for recalling the instant bail granting order. N.H.Q./5-190/L Pre-arrest bail allowed.