ORDER ALI BAQAR NAJAFI, J. - The petitioner, through this petition, seeks post-arrest bail in case F.I.R.
No. 180, dated 02.02.2012 under Section 302 of the Pakistan Penal Code, 1860 registered at Police Station Factory Area, Lahore.
2. Brief facts narrated in the F.I.R, are that on 02.02.2012 at about 7:00 a.m. The husband of the complainant namely, Akram Masih, had to take the children to School and returned back at about 7:45 a.m. Thereafter he went to his brother Aslam Masih, resided at the contiguous house, After about one hour, on the hue and cry of the neighbourer the complainant was informed that her husband had sustained some injuries on the head and he was done to death after setting him on fire and he died before the complainant could reach there. According to the complainant, her husband received injuries at the hands of the petitioner and then setting on fire and kills him. On the same day, supplementary statement was recorded wherein the complainant has re-enforced his stance by the statement wherein she has used the hammer to kill her husband and that the detailed statement would be given later on.
3. The learned counsel for the petitioner contends that it is an unseen occurrence, no motive is attributed to the petitioner, no independent witness cited in the calendar of witnesses, no detail statement was given by the complainant, there is violation of Section 103, Gr.P.C no witness was associated from the house where the hammer was recovered, the petitioner being pregnant woman in her 7th months pregnancy is entitled to the grant of bail. Reliance is placed upon Sardar Khan v. The State (PLJ 1999 Cr.C. 5), (2005 P.Cr.L.J. 586) and Mst. Nusrat v. The State (1996 SGMR 973) to contend that there is no progress in the trial, hence the petitioner is entitled to the concession of post arrest bail.
4. Conversely, the learned counsel for the complainant has vehemently opposed the prayer for grant of bail by submitting that trial has commenced, the husband of the complainant was brutally and mercilessly murdered by the petitioner, the petitioner has also confessed her guilt on 15.02.2012, that the supplementary statement recorded on the same day, wherein hammer was mentioned to have been used and as such specific role is attributed to the petitioner, just being pregnant is no ground for grant of bail to a woman as required facility for delivery of child is available inside the Jail hospital as mentioned in the report dated 02.07.2012. Adopting the arguments, learned D.P.G, further adds that recovery of hammer as weapon of offence was effected at the instance of the petitioner which has also been reported as stained with human blood, hence prays for rejection of bail application.
5. Heard. Record perused.
6. Prima facie, there is no direct witness to the occurrence. No motive is attributed to the petitioner.
Although recovery of hammer was effected at the Plantation of the petitioner yet no independent witness or even the witness of owner of the house was mentioned on the memo, of recovery. In her statement recorded before the police on 15.02.2012 the petitioner has stated that on the fateful day the deceased appeared in her house in absence of her husband and children am1 tried to outrage her modesty to which she did not consent. However, when she had no choice see him to have her eyes covered before sexual act. This fact is also corroborated by the post-mortem report wherein a burnt dupatta was found around the neck of the deceased. Even otherwise, there is no possible explanation of the presence of the deceased at the house of the petitioner, that too, in absence of her husband.
7. Viewing from another perspective of being pregnant woman in 7th months of pregnancy the famous decision of Ghamidiyyah is fully attracted as the sentence on pregnant woman was suspended by the Holy Prophet (P.B.U.H) not only till delivery of the child but also till the suckling period of two years, obviously for the welfare of the child. This golden principle of administration of justice is not only for the Muslims but also available to non- Muslims as per principle of justice enunciated by Muslims Jurists/Imams/Qazis which are more illuminating and full of wisdom than principles enunciated by Western Jurists and Scholars. I am fortified by the view taken by the Hon'ble Supreme Court of Pakistan in Mst. Nusrat v. The State (1996 SCM R 973).
8. Although being woman is not always the ground for grant of bail but in the attending circumstances the petitioner has made out a case for bail in a case involving capital punishment, therefore, I accept this petition and admit the petitioner to post-arrest bail subject to furnishing of bail bonds in the sum of Rs. 2,00,000/- with two sureties in the like amount each to the satisfaction of the learned Trial Court.