This is a petition under section 497/498, Cr. P. C. Moved by Mst. Farah Naz petitioner for bail in connection with a case instituted against her at Police Station, Aabpara on 22-6-1978 under section 302, P. P. C.
2. The F. I. R. In this case was lodged by Police Constable Abdul Ghafoor who alleged that while he was on duty at West Point of Shakar Parian at about 4-30 p.m. On 22-6-1978, he heard the report of a gunshot from near the Parking side and upon reaching there he found the petitioner armed with a revolver pointing the revolver at the deceased Mushtaq. Both of them were standing near a Suzuki Van Parked at the spot. In the presence of the first informant and some other persons who had been then attracted to the shop, the petitioner fired from her revolver thrice at the deceased who fell on the ground and died. The petitioner was apprehended along with the crime weapon.
The F. I. R. Also stated that the petitioner informed the first informant and the other persons that she had been betrothed to the deceased but except her father all her family members including herself were against the proposed marriage with the deceased and she by deception had called the deceased and finished him.
3. After the apprehension of the petitioner, Police Constable, Abdul Ghafoor went to Police Station Aabpara and lodged the F.
1. R. Embodying the above facts. After the registration of the case, the S. H. O. Went to the place of occurrence and formally arrested the petitioner. He found a Suzuki Van No. R. I. D. 6862 parked near the place of occurrence. On the search of the petitioner, Rs. 9,000 were found in her purse and Rs. 1,000 in her pocket ; also, a bag containing lady's clothes was recovered.
The revolver alleged to be used by the petitioner was also taken into possession ; its chamber containing four empties and two bullets.
4. The petitioner applied for bail at Rawalpindi which was disallowed by the learned Additional Sessions Judge, Rawalpindi, on 13-7-78. The learned Additional Sessions Judge, whilst considering the contentions submitted on behalf of the petitioner, held that the plea of self-defence was not spelt out from the report, that the reports filed by the relatives of the deceased exonerating the petitioner, did not make her guilt an open question for further enquiry, that though the petitioner was a girl of about 16 years of age, but since the murder was pre-planned and cold-blooded, the petitioner was not entitled to bail and that as regards the petitioner's ailment she could be adequately treated for the same whilst confined in jail.
5. The learned counsel for the petitioner, who pressed the petition for bail, based his case on a number of contentions. First, that the petitioner was a woman, and therefore entitled to bail under the first proviso to subsection (1) of section 497, Cr. P. C. Second, that the petitioner was below 16 years of age and therefore entitled to the concession provided by the same proviso. In this connection, the counsel submitted that the birth certificate of the petitioner issued by Municipal Committee, Sambrial, and the School Leaving Certificate issued by the Junior Model School Krishanpura, Rawalpindi, both showed that her date of birth was 30-12-1962 and that therefore, on the date of occurrence, the petitioner was roughly 15 years, 6 months old. Third, that the petitioner was suffering from gastriculcer along the lesser curvature of the stomach, which would never be cared whilst the petitioner was in the jail, considering that she was a young girl of tender years, and was otherwise somewhat sensitive. Fourth, that the father and brother of the deceased had agitated by means of various applications filed with the Police Authorities that the petitioner herself was not the killer but that the brother of the petitioner was, who had killed the deceased and thrown the dead body there, which having been found, the petitioner had been roped in. Finally, it was submitted that there was no direct evidence as to what has transpired immediately before the occurrence and that therefore no observation could be drawn that the petitioner had murdered the deceased cold-bloodedly or with premeditation.
6. On behalf of the complainant, Mr. M. B. Zaman, Advocate, submitted that though the petitioner was a lady, she was not below 16 years of age but 16 years and 2 months old at the time of the commission of the offence. In this connection, he drew my attention to a Certificate of the Headmistress, Government Girls High School No. 1, Rawalpindi, dated 5-7-78 wherein it was stated that the date of birth of the petitioner as shown ire their admission and withdrawal register was 1- 4-1962. The complainant's counsel submitted that the grant of benefit as provided by the first proviso to subsection (1) of section 497, Cr. P. C. Was discretionary with the Courts and not what could be demanded as a matter of right. The crime committed by the petitioner was heinous in nature and she was not entitled to the discretion of the Court being exercised in her favour in the grant of bail. He further submitted that the Jail Superintendent himself by his report to the Sessions Court had stated that though there was no separate Female Ward in the Jail Hospital, all the female patients were treated in the Female Jail and wherever hospitalization. Was needed, they were transferred to the District Headquarter's Hospital, Rawalpindi: for necessary hospitalization.
Lastly, he submitted that since the Medical -Board had advised that the necessary medication and rest be provided in the Jail it meant the petitioner could be effectively treated in jail and the petitioner was not entitled to bail.
7. I have given my anxious consideration to this case, have perused the documents filed by both the parties and have given my considered attention to the arguments advanced by both the counsel. In the first instance, there is no doubt that according to the statement of the complainant in, the F. I. R. And that of the witnesses recorded under section 161, Cr. P. C. a reasonable ground appears for believing that the petitioner is guilty of an offence under section 302, P. P. C. However, the only question that remains to be decided is whether the petitioner is entitled to the concession provided by the first proviso to subsection (1) of section 497, Cr. P. C.
8. As regards the petitioner being a lady, there is no doubt on either side.
9. As regards the question as to her age, there is the certificate of the Municipal Committee, Sambrial and the School Leavings Certificate of the Junior Model School, Krishanpura, Rawalpindi, which both show her date of birth to be 30-12-1962. There however is a third certificate on the police issle from the Government Girls School No. 1, Rawalpindi, which shows her date of birth as 1- 4-1962. On the basis of the first two certificates, the petitioner would be roughly 15 years 5 months arid some days on the date of occurrence, whereas according to the last Certificate she would 16 years 2 months and some days on the date of occurrence. Without giving any definite finding as to the age of the petitioner whichmay prejudice the trial of the case on the merits, I would for the purposes of this bail, treat the petitioner as about 16 years.Ofage.
10. As regards the third contention raised on behalf of the petitioner, it is true that the petitioner is suffering from gastric ulcer in the stomach and that this ailment has been with her for the last two years, but it cannot be said so soon that she cannot be adequately treated whilst she is in jail for this sickness. In fact the Board of Medical Speciaiists in their report dated 29-6-78 advised certain treatment to be administered to the petitioner in the Jail Hospital and though it is true that female patients are treated in their own cells in the Female Jail, under the supervision of the Staff of the Jail Hospital yet this does not mean that adequate treatment for gastric ulcer cannot be provided whilst the petitioner is in jail. The report of the Jail Superintedent submitted to the Sessions Court clearly shows that female petients who require hospitalization are sent to the District Headquarters Hospital, Rawalpindi, for necessary treatment, considering that there is no female ward in the Jail Hospital. For all these reasons, at least for the present, it cannot be stated that the petitioner's sickneses is such that she cannot be adequately treated whilst she is in jail.
11. In connection with the petitioner's counsel's contention that certain complaints were filed by the father and brother of the deceased suggesting that the petitioner was not the killer and that somebody else had killed the deceased, I cannot take these facts into consideration for the purposes of bail. Likewise, the further arguments advanced on the petitioner's behalf that there is no direct evidence as to what transpired between the petitioner and the deceased before the petitioner fired at the latter, this also is a matter upon which I would not give any finding for the time being while dealing with this limited question of bail. Both these matters are such which should be left to the trial Court to decide.
12. In view of my finding, that the petitioner is a young girl about 16 years of age, the only question that now remains for me to decide is whether she should be allowed the concession of bail. It is true that nobody can' claim the benefit of the concession as provided in the first proviso to subsection (1) of section 497, Cr. P. C. As a matter of right. The Court must, exercise its discretion on a proper appraisal of the facts and the surrounding circumstances of the case, not unmindful of the fact that this concession is provided in heinous cases of murder as well.
13. What has been urged against the petitioner is that she lured the deceased to the place of occurrence, that she brought the unlicensed revolver with which she shot the deceased, that she had Rs. 10,000 on her person and a bag of clothes with which she intended to flee after the murder and that she killed the deceased in a most merciless and cold-blooded manner by firing four shots at him. Apart from the fact that three fire-arm wounds of entry have been found on the deceased, at lest it can be said that the petitioner fired the three shots one after the other and not four as stated in the F. I. R. But as regards the other matters, they are inferences which the complainant's counsel wants me to draw presently, which, in the absence of evidence, cannot be now made. Who lured who to the place of occurrence or who brought the revolver or what was the motive with which the petitioner came to the spot with so much money and a bag of clothes, or who was to flee in the van belonging to the deceased and yet failed being detected, only the trial Court will be able to decide after a proper appraisal of the evidence after it is recorded. Presently, there is no direct evidence with the investigation agency to even show what transpired immediately before the petitioner fired at the deceased and therefore it cannot be prima facie held that the petitioner was not provoked and that the three shots which she fired were entirely the result of a deliberate and premaditated design to kill the deceased in cold blood. As such, all such inferences showing heinousness of her action would be conjectural. In considering the question of bail of juvenile persons, the mere fact that a large number of injuries have been inflicted by them does not per se disentitle them to bail. In Muhammad Saleem v. State (1) the petitioner had inflicted fifteen injuris with a knife, but being less than sixteen years of age, was admitted to bail. The petitioner is a young girl of tender years. According to th report of the Board of Medical Specialists, she has been having attacks of pain in the epigastrium for the last two years. According to the petitioner's counsel, she bad to break off her studies about two years back because of her ailment. Whilst not denying that she can be adequately treated for this ailment in the jail, I have some reservations whether she would, in the mentally tense environment she would be living in with unpleasant company, find relief from sufferance there. Persons subject to mental tension rarel get cured of ulcers, notwithstanding medical treatment. There is also the element of anticipatory delay in the trial, which very likely will no commence for another three years. As held in Sikander Hayat v. State (1972 P Cr. L J 74)I this must be treated as a factor favourable for the grant of bail. Fod all these reasons, I am of the considered view that the petitioner is entitled to the concession of bail as provided by the first proviso to subsection (PLJ 1974 Cr. C (B J) 442) of section 497, Cr. P. C.
14. For the foregoing reasons, I admit Farah Naz daughter of Sh. Muhammad Younas petitioner to bail in the sum of Rs. 20,000 with two sureties each in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Rawalpindi.