SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Having been involved in complaint case lodged under sections 302, 337-A(ii), 449, 148, 149, P.P.C., arising out of case FIR No.98, dated 20.02.2010, offence under sections 302, 324, 337-A(ii), 337-C(i), 148, 149, P.P.C., registered at Police Station Sahianwala, District Faisalabad, the petitioner . has approached this Court seeking her pre-arrest bail.
2. Facts of the case, in brief, as per material available on record are that on 18.02.2010 at 9:30 p.m. the' complainant was present in his house and on receipts of knocks at the door, he opened it when the petitioner along with her co-accused Awais armed with pistol .30-bore and Waqas also armed with pistol 30-bore forcibly entered the house. On the raising of lalkara by the petitioner , co-accused made fire shots landing on different parts of body of Amjad son of the complainant, who subsequently succumbed to the injuries. Primarily , the matter was reported to the police through FIR No.98, dated 20.02.2010, offence under sections 302, 324, 337-A(ii), 337-C(i), 148, 149, P.P.C., Police Station Sahianwala, District Faisalabad, however , subsequently being dissatisfied with the investigation, the complainant lodged the instant complaint.
3. Learned counsel for the petitioner while addressing his arguments submits that the petitioner is innocent and has falsely been involved in the instant case against the actual facts. Learned counsel vehemently contends that the prosecution case consists of two versions one contained in the FIR and the second portrayed in the complaint case. It is next argued that even as per prosecution own version except raising lalkara, no overt act was ascribed to the petitioner . Regarding absconsion of the petitioner for a period of three years, her learned counsel submits that as Muhammad Awais co-accused, husband of the petitioner , was taken into custody by the police, therefore, in order to save the life of her four young children including two daughters. She shifted to a safe destination and on release of her husband; she voluntarily has surrendered before the Court. Adds that Muhammad Awais, co- accused to whom direct role of fire shot at the person of the deceased was ascribed has been admitted to bail, therefore, the case of the petitioner being on better footing, by sending her behind the bars would not serve any useful purpose as such she is entitled to the extra-ordinary relief of pre-arrest bail.
4. As against above learned Deputy Prosecutor General vehemently opposes the contentions raised by learned counsel for the petitioner with the submissions that the petitioner is duly named with specific role. Further contends that firstly the petitioner approached the learned court of first instance and her pre-arrest bail was dismissed for non-prosecution on 15.05.2010 and thereafter she absconded as such proceed ings in terms of section 87/88, Cr.P.C. were carried out, hence in these circumstances the petitioner is not entitled to the extra-ordinary relief especially when case against her entails capital punishment.
5. Arguments advanced pro and contra have been heard. I have also gone through the record available on file.
6. Nevertheless the petitioner is duly named in the complaint with specific role, however , admittedly the prosecution version consists of two versions, one contained in the crime report and the other mentioned in the complaint and as rightly contended by learned counsel for the petitioner , which of the versions is true shall be decided by the learned trial court after recording the prosecution evidence. Even otherwise the crime report was registered with a delay of two days while complaint was lodged with a further delay of eight months. Moreover , as per prosecution version only role of raising lalkara was ascribed to the petitioner and no overt act qua inflicting any injury either to the deceased or to an injured PW was alleged against her .
During the course of arguments learned Deputy Prosecutor General had empha sized that as the petitioner had remained absconder for more than three years against whom proceedings under sections 87/88, Cr.P.C. were also carried out, however , as per contention of learned counsel for the petitioner when her husband was taken into custody , in order to save the life of her four young children including two elder daughters, the petitioner shifted to a safe place. This Court while taking note of the above contentions of learned counsel for the parties has arrived at the conclusion that the argument of learned counsel for the petitioner carries much credence especially in our society after a heinous occurrence, in order to take revenge there is possibility that the complainant party opts to attack upon the accused side. Therefore, factum of absconsion in this particular case cannot be given pivotal importance. Moreover , it is of much significance to observe that in the case of Mazhar Ahmed v. The State and another (2012 SCMR 997) august Supreme Court of Pakistan had held that surrender before judicial forum is equivalent to surrender before the police. While taking analogy from the above dictum of law of apex Court, I am of the considered opinion that the petitioner being female, her case is on higher pedestal especially when she is having with her four children including two young daughters.
Even otherwise it has been the consistent view of the superior courts of the countr y that if otherwise case for grant of bail is made out mere absconsion would not come in the way while granting bail to the accused. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Mitho Pitafi v. The State (2009 SCMR 299). Similar view was affirmed in the pronouncements of superior courts of the country in the cases of Nadeem v. The State (PLD 1996 Karachi 490) and Ehsan Ullah v. The State (2012 SCMR 1137).
7. Moreover , perusal of record reveals that Muhammad Awais, co-accused, who was assigned direct role of inflicting injury on the person of the dece ased has been admitted to post bail by the learned trial court, therefore, the petitioner is entitled for the concession of bail on the plea of consistency . Reliance in this regard is placed on the dictum of law Muhammad Fazal alias Bodi v. The State (1979 SCMR 9). If otherwise for the sake of arguments, the pre-arrest bail of the petitioner is dismissed on a technical ground that it does not fulfill the obligatory requirements being extra ordinary relief which is used sparingly , then too soon after the pronouncement of order by this Court, the accused would be entitled to the relief of post-arrest bail. Respectful reliance in this regard is placed on the dictum of law Muhammad Ramzan v. Zafar . Ullah and another (1986 SCMR 1380 ). It would be advantageous to reproduce the relevant part of the above dictum, which reads as under:- "---Prima fade case of petitioner not distinguishable from that of others to whom bail had been allowed---Held, no useful purpose was likely to be served if bail of accused(respondent) was cancelled on any technical ground because after arrest he could again be allowed bail on the ground that similarly picked other accused were already on bail--"
Needless to mention that liberty of a person is a valuable right guaranteed under the Constitution one cannot be refuted the premium of bail only on groun d of involvement in a heinous offence. Having considered the case of the petitioner from every angle, I am of the considered view, by sending the petitioner behind the bars would not serve any useful purpose.
8. For the foregoing reasons, this Court is of the firm opinion that sufficient grounds exist persuading this Court to allow this petition and confirm ad-interim pre-arrest bail already granted to the petitioner in terms of order dated 23.07.2013 subject to her furnishing fresh bail bonds in the sum of Rs.1,00,000/- with one surety in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.