' SHAHID HAMEED DAR, J.---Petitioner Shehnaz Bibi widow of Muhammad Sadiq, stands arrested in case F.I.R. No, 476 of 2008, dated 15-8-2008, for offences under sections 302, 147, 149 P.P.C., registered at Police Station, City Pattoki, District Kasur, on the complaint of Mst. Shamas-un-Nisa.
2. Succinctly, the version of the complainant, as contained in the F.I.R. Is that Mst. Shehnaz Bibi, Mst.
Fauzia, Zahid alias Mithi and Tariq alias Tara, attempted to commit the murder of Mst. Saeeda Begum, the mother of the complainant at 9/10 p.m. On 14-8-2008 but they could not do so, due to arrival of Maqsood, etc. And they ran away; that the aforementioned accused along with Sh.
Muhammad Ameen and Khurram again entered the house of the complainant, at 1-00 a.m. On 15- 8-2008 and overpowered the complainant, her sister Kaneez Fatima, Khurram Murtaza and Arbab; Mst. Shehnaz Bibi accused gagged the mouth of her (complainant) mother by shoving a cloth in her mouth and placed a cushion on it, the accused Ameen and Muhammad Zahid caught hold of her hands and feet, who died within 2/3 minutes due to respiratory arrest, the accused committed the murder of the mother of the complainant for taking the control of the property. The motive behind the occurrence was that the father of the complainant had some immovable property which, the accused party conspired to occupy. Ameen accused had also forcibly taken over the shops of the complainant through Mst. Seehnaz Bibi and that litigation was pending between the parties.
3. Learned counsel for the petitioner contends that the petitioner has not committed any offence and she has been falsely implicated in this case in the backdrop of property disputes; that the medical evidence is inconsistent with the version of the complainant; that the deceased lady was 90 years of age and a chronic patient of asthma besides being a heart patient, who died naturally but the complainant cooked up a false case to falsely implicate the petitioner and others; that the petitioner was found innocent during the course of investigation and has been placed in column No, 2 of the challan.
4. Learned Additional Prosecutor General opposes the grant of bail to the petitioner with the contention that the petitioner is nominated in the F.I.R. With a specific role of causing blockage of windpipe of the deceased by thrusting a piece of cloth, into the mouth of the deceased and thereby caused obstruction of respiration; that the petitioner had absconded after the occurrence and was declared a proclaimed offender during the course of investigation; that the petitioner has committed the murder of her mother who is not entitled for any relief.
5. Arguments heard. Record perused.
6. The petitioner admittedly is a daughter of the deceased. The complainant is a police official and employed at Karachi. The bone of contention between the parties is some immovable property, bequeathed by the father of the complainant, and that of the petitioner. Unluckily, the dispute of property has overshadowed the death of the deceased as the complainant, real sister of the petitioner, is adamant to implicate the petitioner in this case as an accused whereas, the petitioner has raised the plea during the investigation that she had a dispute qua the partition of property with her sister, the complainant of this case, and that her mother was a chronic patient who met with natural death. Mst. Shamas-unNisa, the complainant, took a summersault on 17-10-2008 and submitted her sworn affidavit, before the Investigating Officer with the contention that two of the accused A persons had muffled their faces at the time of occurrence and that she failed to identify the accused Muhammad Ameen and Khurram at the time of occurrence. She further deposed that Ameen and Khurram were not the accused of this case and assisted them in earning an opinion of innocence, during the course of investigation. As per investigation, she stated that Muhammad Ameen, etc., had vacated the shops and handed over the possession thereof, to the complainant.
Mst. Kaneez Fatima (P.W.) too, took a "U" turn to endorse the changed version of B her sister, the complainant due to new development.
7. The cause of death recorded by the Medical Officer does not disclose the death C of the deceased due to asphyxia. No bruises or abrasions were found on the lips, angles of the mouth, alongside the nostrils, on the cheeks, molar region or on the lower jaw, by the Medical Officer at the time of post mortem examination of the dead body. The inner surface of the lips was also not found lacerated. The nose was found flattened. No bloody froth or saliva was noticed dribbling out of the nostrils or mouth. It has also not been mentioned in the postmortem report that the skin of the body showed puntiform ecchymosis with lividity of the limbs and he also did not find any rupture of the tympanum which could have occurred from the violent effort at respiration.
8. The doctor did not find any cloth allegedly shoved in the mouth of the deceased.
9. The report of Histopathologist has not been made available by both sides and instead reference has been made to the opinion of the Medical Officer whereby the cause of death of the deceased had been recorded without any reference to asphyxia.
10. The petitioner was found innocent during the course of investigation and placed in column No,2 of the challan. Prima facie the case of the petitioner constitutes need for further inquiry within the meanings of subsection (2) of D section 497, Cr.P.C. Mere the factum of abscondence cannot impede the grant of bail to an accused if he/she is otherwise entitled to grant of bail, within the scope of section 497(2), Cr.P.C. Her case is also covered by section 497(1) Cr. P.C.
11. For what has been discussed above, accept this petition and admit the petitioner to post-arrest bail subject to her furnishing bail bonds in the sum of Rs,100,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.
12. The prosecution may approach this Court for seeking cancellation of bail, allowed to the petitioner, if any evidence establishes the cause of death as asphyxia.
13. Before parting with this order, it is clarified that all the observations made in this order are tentative in nature and shall have no bearing upon the merits of the case, during the course of the trial.