1. ' TUFAIL H. EBRAHIM, J.---The applicant/accused is booked in Crime No,85 of 2009 registered at Police Station Tando Ghulam Ali for an offence punishable under section 302/34, P.P.C.
2. ' The brief facts of the prosecution case are that on 16-9-2009 at 2300 hours complainant Arab lodged F.I.R. At Police Station Tando Ghulam Ali, stating therein that deceased Yaqoob alias Nachoo was his nephew and about 6/7 years ago was married with Mst. Shahida and they had no issue.
3. They were residing at the lands of complainant and in the backside, there were houses of the complainant, his brothers and other relatives. It is alleged that deceased Muhammad Yaqoob had informed the complainant so many times, that his wife Mst. Shahida had illicit terms with one Mehar alias Dodo and that Mehar and his two unknown friends used to come in his house.
4. According to complainant, Yaqoob tried to restrain them on which Mehar, his friends and Mst.
5. Shahida threatened him and stated that if this fad is disclosed to anybody, he would be murderedd. It is alleged that on 15-9-2009 at about 9-00 p.m, Yaqoob came into the house of complainant where he disclosed to the complainant, his brother Gulabo and nephew Bhanal that Mehar and his friends had come in his house on which he restrained and requested them not to do so but the accused threatened him that if such fact is disclosed by him, he would be killed. The complainant party asked Yaqoob to go to the house and in the morning, they would inform the father of Mehar. In the morning at 600 hours, the complainant and his relatives heard cries from the house of his nephew Yaqoob and they all rushed towards the said house and saw that Yaqoob was tied at the iron girder in the Veranda of the house and there was Dupatta of cloth wrapped around his neck. The complainant then took the dead body to the Hospital for postmortem and after burial ceremony, he lodged the F.I.R. That due to illicit terms of Mehar alias Dodo and Mst.
6. Shahida, they along with two unknown friends of Mehar, have committed the murder of Yaqoob by strangulation with Dupatta.
7. ' The learned counsel for the applicant/accused has contended that there is unexplained delay in lodging F.I.R. Of about 17 hours. The F.I.R. Has been lodged after burial and post-mortem of the deceased, which suggest that there was pre-consultation and due deliberation for preparation of false case against the applicant/accused. The facts narrated in the F.I.R. Are concocted, absurd and unbelievable and if the applicant/accused had any illicit relationship with the co-accused Mehar as alleged then why the deceased during his lifetime did not divorce her or killed her as "Kari" or lodged any F.I.R. Against the applicant/ accused and the co-accused Mehar. There is no ocular evidence of the alleged incident and the applicant/accused is not likely to be convicted on hearsay evidence. There is no independent evidence as to the co-accused Mehar and his two unknown friends entering into the house of deceased prior to the alleged incident and even the post-mortem report does not reveal any poisoning or injury or mark of any violence on the body of deceased. According to the post-mortem report, the deceased expired of Cardio Respiratory Failure as a result of suicidal hanging. The application of section 34, P.P.C. And alleged vicarious liability of the applicant/accused requires further probe which could only be done at the time of trial. The applicant/accused is a woman and she is entitled for grant of bail under the proviso of subsection (1) of section 497, Cr.P.C. There is reasonable doubt in the case of the prosecution as made out in the F.I.R. Therefore, the case requires further enquiry and the applicant/ accused under the circumstances is entitled to the benefit of bail. In support of his contentions, the learned counsel for applicant/accused has relied upon the following case-laws:--
(1) 2009 SCM R 751, (2) 2009 M LD 689, (3) 2003 M LD 1916 and (4) 2008 PCr.LJ 1520.
8. ' The learned D.P.G. Has contended that there is sufficient material to show that the applicant/accused had sufficient motive to commit the crime, as the deceased had told the complainant that the applicant/accused had illicit terms with co-accused Mehar and on 15-9- 2009, that co-accused Mehar, along with his two unknown friends had come to his house and had threatened the deceased. The delay in registration of F.I.R. Has been explained and the circumstances leading to the death of deceased, prima facie connects the applicant/accused in the commission of the offence, therefore, bail should not be granted. The learned D.P.G. Submits that if the deceased had committed suicide then his feet would have been hanging above the ground, which is not the case according to the F.I.R.
9. ' I have heard learned counsel for the applicant/accused, learned D.P.G. And perused the record with the able assistance of both the counsel.
10. From the record and documents it prima facie appears that unexplained delay in lodging F.I.R. Of about 17 hours, particularly after burial and post-mortem of the deceased raises doubts in the case of the prosecution. No explanation has been given for the inaction on the part of deceased in taking any action against the applicant/accused and the co-accused for having illicit relationship.
11. There is no ocular evidence of the alleged incident or to the escape of the co-accused from the scene of the crime, although allegedly cries were heard. The post mortem report does not reveal any poisoning or injury or mark of any violence on the body of deceased. The application of section 34, P.P.C. And alleged vicarious liability of the applicant/accused requires further probe which could only be made at the time of trial. The applicant/accused is a woman and she is entitled for grant of bail under the provisos of subsection (1) of section 497, Cr.P.C. There is reasonable doubt in the case of the prosecution as made out in the F.I.R. Therefore, the case requires further enquiry and the applicant/accused under the circumstances is entitled to the benefit of bail.
12. ' In the case of Zohra Khanum v. The State, 2009 SCM R 751, the bail was granted on the ground, that the question whether petitioner shared common intention with the co-accused would require further inquiry---Petitioner was a woman and in judicial lock-up for the last more than 10 months.
13. ' In the case of Abdul Razzaq v. The State, 2009 M LD 689, the bail was. Granted on the ground that further enquiry as provided in subsection 2 of section 497, Cr.P.C. As there was contradiction.
14. ' In the case of Abdul Ghaffar and 2 others v. The State 2003 M LD 1916, the bail was granted on the ground that further enquiry was required as there was no absolute incriminating material/evidence on police record against the accused as to the strangulation of the deceased by the accused.
15. ' In the case of Ghazi Sarftaz v. The State, 2008 PCr.LJ 1520, the bail was granted on the ground that further enquiry was required as no evidence as neither anybody claimed that he had seen the accused committing the murder or any other evidence to connect the accused to the offence.
16. ' The relevant provisos relating to woman accused under subsection (1) of section 497, Cr.P.C. Are reproduced as under:-- "Provided further that a woman accused of such an offence shall be released on bail, as if the offence is bailable, notwithstanding anything contained in Schedule-II to this Code or any other law for the time being in force: ' Provided further that a woman may be so released if there appear reasonable grounds for believing that she has been guilty of an offence relating to terrorism, financial corruption and murder and such offence is punishable with death or imprisonment for life imprisonment for ten years, unless having regard to the facts and circumstances of the case, the Court direct that she may be released on bail: ' Provided further that where a woman accused of an offence is refused bail under the foregoing proviso, she shall be released on bail if she has been detained for a continuous period of six months and whose trial for such offence has not been concluded, unless the Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on her behalf."
17. For the facts, reasons, law as aforesaid and taking into consideration the various case-law relied by the counsel of the applicant/accused, I have come to the tentative conclusion that there is reasonable doubt in the case of the prosecution and the allegation against the applicant/accused requires further inquiry within the meaning of section 497(2), Cr.P.C. Being a woman the applicant/accused is also entitled to the benefit of bail within the meaning of the provisos of section 497(1), Cr.P.C.
18. ' The applicant/accused is granted bail subject to furnishing solvent surety in the sum of Rs.200,000 (Rupees Two Hundred Thousand only) and P.R. Bond in the like amount to the satisfaction of the trial Court. Needless to mention that the trial Court should not be prejudiced or influenced by the above tentative deliberations and should decide the case in a just and fair manner, based on the evidence to be adduced at trial. These are the reasons for my short order dated 2-3-2010.