1. ' SAJJAD ALI SHAH, J.-Granted.
2. Through this application applicants, Muhammad Jameel and Muhammad Gulfam, seek bail in Crime No,76 of 2006 under section 302/34, P.P.C. Of Police Station Garden Saddar Town, Karachi.
2. ' Briefly stated the facts per; F.I.R. Are that on 19-5-2006 complainant Mst. Mubina Bibi lodged a report disclosing therein that on 17th May, 2006 at about 12-30 p.m. One of her neighbours informed that he has received a telephonic message from brother-in-law of the complainant that the ' complainant's daughter Ruby got burned at the house of her in-laws and was taken to Civil Hospital by the mohallah people. When she reached the hospital she saw her daughter seriously burned. Upon query, her daughter informed that on 14-5-2006 her husband and brother-in-law Jamil had beaten her after a quarrel and thereafter again on 17-5-2005 at about 11-30 a.m. Her husband and brother-in-law had beaten her and thereafter at about 12-30 p.m. When she was in her room her husband Saeed, brother-in-law Jameel and Gulfam along with sister-in-law Zarina came in her room and dragged her out in the verandah by pulling her from her hairs and after putting kerosene oil they set her on fire and while laughing and mocking left the place. Upon hearing her cries mohallah people gathered and brought her to the hospital. She further disclosed that her sister-in-law had met her outside the hospital and told her to give a statement that she had set herself to fire and in case she would hot give such statement her husband shall be arrested and the future of their small children will be ruined. The complainant further stated that on 18-5-2006 her daughter Ruby died.
3. ' Bail application was moved on behalf, of the present applicants/accused which did not find favour and was rejected by the trial Court vide its order dated 9-8-2006.
4. ' Learned counsel for the applicants has contended that the incident had taken place on 17th May, 2006 at about 12-30 p.m. And soon thereafter the deceased was brought to the hospital where she recorded her statement in the presence of Woman Medical Officer wherein she stated to have committed self-burning and consequently it is a case of two versions and the applicants are entitled to bail. It was next contended that the F.I.R. Is afterthought and was recorded with an inordinate delay of two days without any plausible explanation. It was further contended that no specific role has been assigned to the present applicants/accused and the F.I.R. As is evident from its contents is a result of grudge against the applicants as admittedly they used to maltreat the deceased. It was further contended that* though the F.I.R. Was lodged under section 302, P.P.C. But after completion of investigation, the accused have been challaned under section 322, P.P.C. Which does not provide for any punishment by way of imprisonment but the payment of Diyat, as such the applicants are entitled to the concession of bail. It was lastly contended that the applicants/accused are no more required for investigation and interrogation as the matter has been challaned and on account of two versions which create serious doubts in the prosecution story the case becomes one of further enquiry and therefore the applicants are entitled to the concession of bail.
5. ' Learned counsel, while contending that in case the concession of bail is denied and after a protracted trial the first declaration is upheld, then the damage caused to the-applicants by keeping them in jail would be beyond repair and in support of his contention, has placed reliance on the following observation of the Honourable Supreme Court made in the case of Syed Amanullah Shah v. The State and another (PLD 1996 SC 241):- "....Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of ah accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail than in the jail, during the trial."
6. ' On the other hand, learned counsel for the State has vehemently opposed the grant of bail on the ground that the first statement was procured from the deceased by wrongful inducement and threatening the future of her children. It was further contended that the statements of four witnesses under section 161, Cr.P.C. Fully support the F.I.R. Which goes to prove that first statement was obtained under duress and not by free-will. It was further contended that the delay, if any, has been properly explained in the F.I.R. As the complainant was first busy in the hospital and thereafter in the burial of her deceased daughter. It was lastly contended that the absconsion of the husband of the deceased as well as the sister-in-law Zarina establishes the guilt of the applicants and therefore the instant application is liable to be rejected.
7. ' I have heard the counsel for the respective parties and have gone through the record as well as the case-law cited before me.
8. The record reflects that the incident is un-witnessed and the F.I.R. Is a result of second dying declaration allegedly made by the deceased in the presence of her mother after about four hours of the incident wherein the deceased per prosecution, implicated the present accused. It is also evident from the record that the F.I.R. Was lodged after approximately 52 hours of the alleged declaration and 44 hours after the death of the deceased whereas the first declaration was recorded within three hours of the incident in the presence of Medicolegal Officer wherein the deceased has admitted to have put herself to fire, the declaration further does not reflect the presence of any relative to infer inducement and/or undue influence. Consequently, such declaration, at this stage, cannot be discarded altogether and in my view on account of these two conflicting dying declarations the instant case becomes one of further enquiry entitling the applicants to the concession of bail.
9. ' As to the contention of the learned counsel for the applicants that since the applicants have been charged under section 322, P.P.C. Which does not provide punishment by way of imprisonment, therefore the applicants are entitled, to bail, suffice it to observe that in an offence punishable under Hadd. Qisas and Diyat an accused can of course, be detained in jail pending investigation or decision if the dictates of justice and public good so demand and for this very reason the legislature in his wisdom has placed the offence under section 322 under the head of non-bailable offences.
10. ' Taking up the contention of the learned counsel for the State that the statements of four witnesses fully support the F.I.R. In order to prove that the first statements was obtained under duress, in my view, declining the bail to the applicants on this score would require deeper appreciation of evidence and a finding to that effect at this juncture would amount to discarding the first dying declaration and denying the applicants a fair trial.
11. As to the last contention of the learned counsel for the State that the absconsion of the co- accused establishes the guilt of the applicant, disentitling them from the concession of bail in my view is absolutely misconceived as it can hardly be a ground to refuse bail to the applicants who otherwise are found entitled to the concession of bail.
12. ' In the circumstances, I admit the applicants to bail upon furnishing surety in the sum of Rs.3 lacs, each and P.R. Bond in the like amount to the satisfaction of the trial Court. However, it is made clear that the observations, made herein above, are tentative in nature and would not affect the trial on merits.