' ABDUL RASOOL MEMON, J.---By this order I would like to dispose of an application under section 497, Cr.P.C. For grant of bail to the applicant who is booked in Crime No,460 of 2012 under sections 302/34, P.P.C. Police Station Sohrab Goth, Karachi.
2. The facts of the case are that on 2-7-2012 at 0010 hours one Zulfiqar Hussain recorded F.I.R. At Police Station Sohrab Goth stating therein that he resides at the house mentioned in the F.I.R., his younger brother namely Shehzad was also residing with him along with his family. On 29-6-2012 at 0030 hours Shehzad along with his wife Mst. Maryam left the house for taking medicines on motorcycle. At 0445 hours Mst. Maryam returned back to home in Rikshaw and disclosed that Shehzad alighted her at Tariq Road and gone to somewhere else. Thereafter, she went to sleep. At morning time it was announced from the Masjid that dead body of Shahzad is lying at cold storage of Edhi Center at Sohrab Goth. After hearing the announcement, he along with his relatives went to Edhi Center, Sohrab Goth where he identified the dead body of his brother, who had sustained fire- arm injuries on his head. The complainant received the dead body and after his burial recorded the aforesaid F.I.R. Against unknown persons. After registration of the F.I.R., on 16-7-2012 further statement of complainant was recorded and on that day the presert applicant was arrested.
Thereafter on 21-7-2012 statement of one Ameer Bux under section 161, Cr.P.C. Was recorded who has stated that he was going in Rikshaw on 29-6-2012 after loading vegetables while he was on way from Sabzi Mandi to Gulshan-e-Memar curve near Sesi CNG at little distance he saw a white colour car, wherein a person was sitting on driving seat and on its back side, on opening its Diggi a smart girl along with a boy were throwing a bag containing material, thereafter on little distance he reported the matter to police at Ayub Chowki, however, on coming to know that the thrown material was dead body of deceased Shahzad, he recorded his statement under section 161, Cr.P.C.
Police after investigation put up the challan.
3. Learned trial Court after considering the arguments and record, rejected the bail application hence this application.
4. I have heard learned counsel for the appellant as well as learned Assistant Prosecutor-General, Sindh.
5. Learned counsel for the applicant has argued that there is delay of four days in recording the F.I.R. Without any explanation. Further statement of complainant was recorded after a delay of 14 days and statement of P.W. Ameer Bux has been recorded after the delay of 23 days of the incident. He contends that delay in recording the statement is fatal to the prosecution case, it has not been shown that why the statements were recorded after inordinate delay. No identification test of present applicant has been held through P.W. Ameer Bux, who is the only alleged eye- witness of the incident; that the other piece of evidence which has been collected by the prosecution is that the present applicant pointed the place of incident to the Investigating Officer and the said piece of evidence is also not helpful to the prosecution because the Investigating Officer had already seen the place of occurrence. He has further contended that non-holding of identification parade after arrest of accused had brought her case within the meaning of further enquiry. The alleged extra-judicial confession before the police allegedly made by the applicant is also a weak type of evidence and evidentiary value of the same would be seen at trial. He has further contended that applicant is mother of one suckling baby who is aged about 1-1/2 years and totally depends on her feeding. He has lastly contended that applicant has made out the case of further enquiry as envisaged under subsection (2) of section 497, Cr.P.C. To support his contentions he has relied upon the cases of MUHAMMAD ARIF v. THE STATE (1997 SCM R 462), MUHAMMAD SULEMAN v. RIASAT ALI AND ANOTHER (2002 SCM R 1304), MEHMOOD AHMED AND 3 OTHERS v. THE STATE AND ANOTHER (1995 SCM R 127), ALLAH DITTA v. THE STATE AND OTHERS (2012 SCM R 184) and case of MST. NUSRAT v. THE STATE (1996 SCM R 973).
6. On the other hand learned Assistant Prosecutor-General, Sindh assisted by learned counsel for the complainant contended that circumstantial evidence in the shape of extra-judicial confession of applicant before the police coupled with last seen evidence and so also the strained relations between deceased and the applicant, statement of P.W. Ameer Bux are sufficient to make out the case of commission of Qatal by the present applicant, therefore she is not entitled to the concession of bail and order of trial Court is in accordance with law. He has placed reliance upon the cases of MST. GUL KHATOON ALIAS GUKKI AND OTHERS v. THE STATE (2010 PSC (CRL) 742), SYED MAQBOOL MUHAMAMD v. THE STATE (2005 SCM R 635), SHAHZAMAN AND 2 OTHERS v. THE STATE AND ANOTHER (PLD 1994 SUPREME COURT 65), AAMIR v. THE STATE (2007 M LD 1749), GULZAR KHOSO v. THE STATE (2006 PCr.LJ 1984) and the case of ABDUL MALIK v. THE STATE (2000 PCr.LJ 1816).
7. I have given careful consideration to the arguments and perused the record. It is an admitted fact on the record that accused is not nominated in the F.I.R. Though the F.I.R. Has been registered after the delay of four days by the complainant. The further statement of the complainant was recorded on 16-7-2012 after the delay of 14 days of the lodging of F.I.R. And 19 days of the incident wherein he disclosed the name of present applicant. It is also admitted fact that applicant/accused was residing with the complainant as she is his bhabhi being wife of his deceased brother and was known to him and no explanation has been given for recording the further statement with a delay. Non-explanation of the delay in making the report to the police and also recording the supplementary statement after, 14 days of registration of the. F.I.R. Gives presumption to the meditation and consultation.
8. The other piece of evidence is of extra-judicial confession of applicant alleged to have been made before the Police which is yet to be proved at the trial. Pointing of place of incident admittedly was not secret as it was already visited by the Investigating Officer before arrest of applicant. Simultaneously the delay in recording the statement of witness Ameer Bux has not been explained. Moreover present applicant/accused was not put to identification test through P.W.
Ameer Bux as he has stated that he had seen the smart girl along with another accused throwing the bag containing dead body of the deceased and even in his statement the features of said lady has not been mentioned.
9. Apart from the above it has also been brought on the record that applicant has got a suckling baby aged about 1 1/2 years and at present said baby is residing with the complainant party without feed from his mother/applicant. In such a situation, suckling baby is suffering agony being living without his mother, therefore, on this ground also the applicant has been able to make out her case for the grant of bail. If any case-law is needed, reliance may be placed on 1996 SCM R 973.
10. The case-law relied by the learned counsel for the complainant has got no relevancy with the circumstances of this case.
11. Considering all these aspects of the matter tentatively I am of the view that the case of applicant needs further enquiry, which entitles her for grant of bail. Accordingly this bail application is allowed and applicant is ordered to be released on bail on furnishing surety in the sum of Rs, 3,00,000 (Rupees three lacs only) and P.R. Bond in the like amount to the satisfaction of the trial Court.