2019 P Cr (PLP)

SADIQ MAHMUD KHURRAM, J.

Through the instant petition filed under section 497, Cr.P.C., the petitioner namely Abida Parveen is seeking post-arrest bail in the case FIR No.348 of 2018, dated 08.08.2018, registered at Police Station Yousaf Wala, District Sahiwal, in respect of offences under sections 302, 148 and 149, P.P.C.

2. The allegation as against the petitioner culled from the evidentiary material produced before the Court is that she along with co-accused namely Mehmood Ahmad committed the Qatl-i-amd of her husband namely Muhammad Rasheed Shahzad.

3. I have heard the learned counsel for the parties and have gone through the record of this case with their able assistance.

4. It has been noticed by this Court that there is no eye-witness of the alleged occurrence and the prosecution is relying on the witnesses of extra judicial confession. The evidence of extra judicial confession of the petitioner has been tendered by the complainant namely Muhammad Rafique through a written application submitted on 08.08.2018. It was recorded in the said application that the petitioner had allegedly confessed to her crime. Muhammad Rafique happened to be the real brother of the deceased but he did not react at all to the confessional statement of the petitioner and calmly saw her leaving, without even moving an inch. Muhammad Rafique has not mentioned in his statement that the accused had some weapon when she visited them to confess her guilt about the murder of Muhammad Rasheed Shahzad which could have precluded him from apprehending the petitioner. Their conduct does not look much inspiring or natural. The petitioner, namely, Mst. Abida Parveen was arrested on 13.08.2018 and there is no explanation as to why her arrest was not effected after making of the alleged extra judicial confession. Additionally to the extent of co-accused Mehmood Ahmad, statements under section 161 of Cr.P.C. of the two witnesses namely Rasheed Ahmad and Hafiz Muhammad Sajjad were recorded with respect to his extra judicial confession on 09.08.2018. Learned counsel appearing on behalf of the complainant and the learned Deputy District Public Prosecutor have laid much reliance on the said extra judicial confession of the co-accused namely Mehmood Ahmad. It is trite that the confession of a co-accused can be used as circumstantial evidence against the other accused but only if the said confession is proved. It is part of the record that after the alleged extra judicial confession of the co-accused, he was not produced before any Magistrate to get recorded his confession. If the co-accused was to confess his guilt before the witnesses then nothing precluded him from doing the same before a Magistrate. Even otherwise until and unless the said extra judicial confession of the co-accused is proved before the court of law, the same cannot be used against the petitioner. Additionally, it has been held on so many occasions that extra judicial confession of an accused is a weak type of evidence which may be maneuvered by the prosecution in any case where direct connecting evidence does not come their way. This only points towards the presumption that the statement recorded under section 161, Cr.P.C. on 08.08.2018, with respect to alleged extra judicial confession of the petitioner, is manipulated. It is settled law that evidentiary value of such type of evidence i.e. evidence of last seen and extra judicial confession shall be determined by learned trial court at an appropriate stage. Reliance is placed on the case of "Rahat Ali v. State" (2010 SCMR 584), Muhammad Hussain v. Afzal Ahmed and another (1995 SCMR 932). The august Supreme Court of Pakistan has held in the case of "Abid Mehmood v. State" (2017 SCMR 728) as under:- Reliance in this regard is also placed on case law titled as "Allah Ditta v. The State and others 2012 SCMR 184" wherein it has been held by the august Supreme Court of Pakistan as under:- "The evidence regarding wajtakkar and extra-judicial confession being relied upon by the prosecution against the petitioner and his above mentioned co-accused namely Hussain Bakhsh has already been opined by the Lahore High Court, Lahore in its order dated 2-12-2010 passed in Criminal Miscellaneous No.13309-B of 2010 to be weak types of evidence and the evidentiary value whereof would be seen at the time of the trial. The investigation of this case has already been finalized and, thus, confirmed custody of the petitioner in jail is not likely to serve any beneficial purpose at this stage."

5. Learned Deputy District Public Prosecutor as well as counsel for the complainant further argued that during the investigation of the case it came on record that the petitioner Abida Perveen had administered sleeping pills to the deceased prior to his death. The report of Punjab Forensic Science Agency, Lahore has been produced before the Court wherein no drug or poison was detected in the liver and stomach of the deceased. Furthermore no opinion regarding the cause of death has been given as yet and the cause of death remains undetermined of the deceased. Learned counsel for the complainant as well as the learned Deputy District Public Prosecutor further submitted that the petitioner Abida Perveen also pointed out the place of occurrence. The said memo of pointing out the place of occurrence is irrelevant and inadmissible as nothing was discovered as a result of such pointing out . The place of occurrence as well as the place of throwing the dead body were already in the knowledge of witnesses prior to their pointing out by the petitioner. Reliance is also placed on case law titled as "Ijaz Ahmad and Another v. The State" (1997 SCMR 1279) wherein it has been held by the august Supreme Court of Pakistan as under:- "There is no ocular evidence to show that Muhammad Abbas was murdered by any of the present petitioners. Mere fact that Noor Muhammad and Muhammad Din saw firstly the deceased and after some distance they saw the petitioners going towards the same direction, did not mean that the petitioners were chasing the deceased or were accompanying him. Such evidence cannot be treated as evidence of last seen. Witnesses Ali Muhammad and Chand Khan do not figure in the FIR. Moreover, the evidence of extra-judicial confession may not be by itself sufficient for conviction of the petitioners. In respect of evidence of recovery, it was rightly argued by learned counsel for the petitioners that the same could be used, at the most, for corroboration of the main evidence, but by itself it cannot be basis for conviction."

6. Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail. Being woman, the case of the petitioner Mst. Abida Parveen is covered by first proviso to subsection (1) of section 497, Cr.P.C. The petitioner is previous non-convict and never involved in any other case. She is behind the bars since 13.08.2018; nearly eight months have elapsed but her trial has not seen any fruitful progress as yet. Investigation of the case is complete and the petitioner is no more required for further investigation, therefore, her further incarceration would not serve any useful purpose. Additionally as per report of the Medical Officer Central Jail Sahiwal the petitioner has given birth to a baby boy on 13.04.2019. Both the petitioner and her son are lodged in the Central Jail Sahiwal. The suckling child of the petitioner kept in jail is undoubtedly innocent. He is being kept in jail with mother obviously for his welfare. The concept of "welfare of minor" is incompatible with jail life.

7. For what has been discussed above, the case of the petitioner becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of petitioner for the said offences would be determined by the learned trial court after sifting the evidentiary worth of the material produced before the same. Till then, case of petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioners' guilt. The petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to her furnishing bail bonds in the sum of Rs.500,000/- (rupees five hundred thousand only) with two sureties each, in the like amount, to the satisfaction of learned trial court.

8. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court. SA/A-53/L Bail granted.