' MUHAMMAD QASIM KHAN, J.---Petitioner seeks pre-arrest bail in a case arising out of F.I.R. No,133 dated 20-7-2009 under sections 302/109, 148/149, P.P.C. Registered at Police Station Yakee Gate, Lahore.
2. Briefly the allegation against the petitioner is that she exhorted lalkara, when her two co-accused
(sons) committed the murders of Muhammad Shafique and Mst. Saba Bibi.
3. It is argued by the learned counsel that petitioner has been falsely involved in this case. Further argued that main accused in this case are Ehsan Butt and Zeeshan, both are sons of the present petitioner and in order to rope in the whole of the family the petitioner has been implicated in the case along with Javed Iqbal (their paternal uncle), just to disgrace and humiliate, whereas, her husband has already been murdered. It has been contended by the learned counsel that when according to the F.I.R., Ehsan Butt and Zeeshan both were present at the spot while armed with fire arms and this act shows their pre-meditation, there was hardly any need for the petitioner to have raised lalkara. The learned counsel next argued that even otherwise, just a simple lalkara is attributed to the petitioner and furthermore, while appearing in the witness box as P.W.3 the complainant has categorically stated that he had not named any of the accused in the F.I.R. And this fact alone is sufficient to hold that arrest of the petitioner is tainted with mala fide. The learned counsel further maintained that as husband of the petitioner had already been murdered, two sons along with her brother in law had been involved in this murder case, she out of fear absconded as she was apprehending her murder at the hands of the complainant party. The learned counsel further argued that mere abscondence of the petitioner is no ground to refuse her bail, to which she otherwise, has become entitled.
4. On the other hand, learned D.P.-G. Assisted by learned counsel for the complainant opposed the bail application by arguing that petitioner is nominated in the F.I.R., with specific attribution of raising lalkara, because of which her co-accused committed the murders of two innocent persons.
The learned counsel for the complainant added that although during trial the complainant did not make the correct statement and was declared hostile, but earlier in his statement under section 164 Cr.P.C. He had made categorical statement implicating the petitioner and other co-accused.
Learned counsel for the complainant lastly added that petitioner remained fugitive from law and this fact alone is sufficient to disentitle her for the grant of bail.
5. Arguments heard. Record perused.
6. According to the contents of the F.I.R. Itself, two sons of the present petitioner, were present at the spot while carrying fire arms with pre-meditation, in such a situation, hardly there was any occasion for the petitioner to have raised lalkara to entice her sons for the commission of the alleged crime. It has come on the record that husband of the petitioner has already been murdered and through the instant case, the petitioner along with her two sons as well as brother in law, prima facie, have been involved, as a result of widened net, for obvious reason to humiliate and disgrace the petitioner being the elder of family and also a woman. This possibility also cannot be ruled out that she might have been implicated in the case, to use her attempted arrest as a tool for effecting the arrest of her absconding co-accused/sons. Furthermore, a certified copy of the statement of the complainant recorded during trial as P.W.3. Has been placed on the record, and in his said statement the complainant has made a categorical statement that "I did not nominate the present accused Javaid Iqbal and Zeeshan, Ahsan and Kausar Perveen (since P.Os.) and police itself incorporated the names of the above said accused in this case. " In the presence of above explicit statement of the complainant, arrest of the petitioner on the face of it appears to be tainted with mala fides of the police. Although, the complainant has been declared hostile and cross-examined by the DDPP, but this would by no means advance the case of the prosecution.
7. Even otherwise, the petitioner is only attributed a proverbial lalkara, which allegation prima facie appears to be quite unnatural in the presence of the facts and circumstances of the present case, as discussed above. Almost all the legal systems, and all enlightened philosophies of life including prevalent social systems, religions and sociologies manifestly behold a liability of an individual only for the acts and omissions for which he is personally responsible. Furthermore, the Hon'ble Supreme Cburt of Pakistan in the case "Mst. ZAKIA BEGUM v. THE STATE" (1991 SCM R 297), confirmed pre-arrest of an accused, who had been imputed a proverbial lalkara in the F.I.R. The Hon'ble Supreme Court of Pakistan in its celebrated judgment "MEERAN BUX v. THE STATE and another" (PLD 1989 SC 347), set aside an order of the High Court cancelling pre-arrest bail granted to accused, in the circumstances where accused had pointed out that complainant had involved 'in the case all members of his family i.e, all the three brothers and their cousin. Almost, similar is that position in the instant case, husband of the petitioner has already been murdered, her two sons and a brother in law, including the petitioner herself have been roped in the instant F.I.R. This attempt on the part of the complainant by throwing a widened net is a glaring example of mala fide and ulterior motives on his part.
8. Although the petitioner remained fugitive from law for some time, but she has quite sufficiently explained the reasons for her absconding, by stating that her husband had been murdered, two sons had been involved in this double murder case, her brother in law had also been implicated in the same case, as such, she genuinely apprehended danger to her life at the hands of the complainant, soon after registration of the case, and she opted to knock the doors of the court, when the emotions of the complainant side, by the passage of time, must have cooled down. Even otherwise the Hon'ble Supreme Court of Pakistan in the case "MITHO PITAFI v. THE STATE" (2009 SCM R 299), held that " Bail could be granted, if accused had good case for bail on merits and mere his absconsion would not come in the way while granting him bail." The Hon'ble Peshawar High Court in the "SAEED v. THE STATE and another" (2008 PCr.LJ 726), held that "Mere absconsion of an accused, could not be a ground for refusal of bail to him because that was not the proof of the guilty of accused. Disappearance of a person charged in a murder case, after the occurrence was but natural and presumption of guilt as well as of innocence could be scanned from the absconsion subject to the proof at the time of trial of the case."
9. For what has been discussed above, prima facie the involvement and attempted arrest of the petitioner, appears to be stained with mala fide, as such, the instant petition is accepted and interim pre-arrest bail earlier granted to her, is hereby confirmed subject to her furnishing bail bond in the sum of Rs,500,000 with two sureties each in the like amount to the satisfaction of DR(J) of this Court.
10. Neeldess to add that in case the petitioner absents herself or in any other way tries to hamper the trial, the trial Court will be at liberty to proceed against her, in accordance with law.