RAJA SAJJAD AHMAD KHAN, J.---Through this revision petition, accused-petitioner , seeks bail after arrest, which was declined to her by Additional District Court of Criminal Jurisdiction, Dhirkot vide its order dated 11.04.2020.
2. The facts giving rise to this revision petition are that complainant/S.I. lodged a written report with Police Station, Dhirkot, wherein it is averred that on 17.03.2020 at about 08.00, p.m. information was received that a dead body of new born baby was laying over Rangla Koterian stream, upon this information, he went at the spot and brought dead body of new born child at Tehsil Head Quarter , Hospital, Dhirkot for obtaining DNA samples and on 18.03.2020, after examination of the dead body by Medico-legal Officer, THQ, Dhirkot, the same was buried in nearby graveyard. The CMO, after examination of dead body handed over samples for DNA. It was further averred that some unknown woman gave birth to the child and in order to conceal offences, she threw new born alive or dead child in the stream, hence committed offence under sections 302, 329, 201, A.P.C. and section 10 of the Offence of Zina (Enforcement of Hadood ) Act, 1985. On this report, a case in offences under sections 302, 329, 201, A.P.C. and 10 of the Of fence of Zina (Enforcement of Hadd) Act, 1985 was registered.
3. During investigation, Mst.Bushra Bibi was interrogated who disclosed that Ahsan Ali committed adultery with her, as a result of which she gave birth to a child. She further disclosed that after birth she killed the new born baby and threw him in the stream. Upon the aforesaid disclosure she along with co-accused was apprehended. She applied for bail after arrest before Additional District Court of Criminal Jurisdiction, Dhirkot on 31.03.2020, which was disallowed vide impugned order dated 1 1.04.2020, hence, this revision petition.
4. Sardar Bilal Shakeel, the learned Counsel for the accused-petitioner submitted that a false case has been registered against the accused-petitioner while she has committed no offence. The learned Counsel further contended that during investigation she recorded statement under section 164, Cr.P.C. and alleged that three accused persons namely Zakir , Shahid and Ahsan Ali were involved in adultery but they were enlarged on bail in 'Zina' offence, hence case against the accused petitioner remains in offence under section 302, A.P.C. and there is no substantial evidence brought on record, therefore, she is entitled for release on bail on the basis of rule of consistency . He further argued that no direct as well as medical evidence is available on record especially best possible evidence in case under section 10 of the Offence of Zina, in order to find out the truth would be DNA test but no DNA test is brought on record. The learned counsel pointed out that only evidence available on record is the statement of petitioner under section 164, Cr.P.C. which was got recorded by Magistrate who has not empowered to record the same in Hudood cases and she cannot be convicted on the said statement. He argued that according to section 156-B, Cr.P.C. in cases under section 10, Z.A only S.P. rank officer can be investigated the matter but in the instant case the aforesaid provision of law has been violated. The learned counsel maintained that petitioner was behind the bars for the last three months in Police Station, Dhirkot where no lady constable was present, therefore, she being a woman may be released on bail. In support of his arguments the learned counsel placed reliance on 2001 PCr .LJ 575, 1992 PCr .LJ 412, and 2005 YLR 692 and 1634.
5. On the other hand, Sardar laved Naz, learned Additional Advocate General appearing on behalf of the State opposed the submissions made by the learned counsel for the accused-petitioner and vigorously contended that the accused-petitioner is involved in heinous offence of committing Zina and murder of new born baby; therefore, the revision petition may be dismissed. The learned State Counsel defended the impugned order on all counts.
6. I have heard the learned Counsel for accused-petitioner as well as the learned State Counsel and cursorily gone through the record.
7. The accused-petitioner seeks bail after arrest and it is, now, well settles( principle of law governing the bail matters that at bail stage a tentative asse ssment of record has to be taken into consideration and deeper scrutiny of the evidence is neither permissible nor desirable at bail stage, but at the same time, the Courts are not expected to pass a bail order in vacuum. The aforesaid view finds support from a case reported as Muhammad Arif v.
Babar and another (2014 SCR 916) wherein the following observation was made:- "It is cardinal principle of law that while disposing of a bail application, the Court can form the opinion on the basis of material, i.e., allegation levelled in the FIR, statement under Section 161, Cr.P.C. As the deeper appreciation of evidence at bail stage is not warranted and only a bird eye view has to be taken."
8. From careful consideration of the record shows that a under section 10 of the Offence of Zina (Enforcement of Hadood) Act, 1985 was registered against the accused petitioner and co-accus ed. The allegation against the accused petitioner is that due to committing adultery with co-accused she gave birth to a child who after delivery was killed and thrown in a stream. The record shows that dead body of new born baby was recovered from the stream and his DNA samples along with samples accused persons was also sent for examination and reports are not brought on record as yet. Moreover three other co-accused who committed adultery with her are also enlarged on bail, while there is no sufficient evidence brought on record that new born child was alive or he killed by anybody , thus matter requires further probe in of fence under section 302, A.P.C.
Therefore, while keeping in view the allegation levelled in the FIR and other material placed before the Court, prima facie case of accused-petitioner needs further probe and inquiry and if she is found guilty of offence after recording the evidence in the trial Court, she shall have to face the consequences. It is also settled principle of law that bail cannot be withheld as a punishment.
Thus, by accepting the revision petition, the bail, in FIR No.36/2020 offences under sections 302, 329, 201, A.P.C.
10, of the Offence of Zina (Enforcement of Hadood) Act, 1985 is allowed to the accused-petitioner . She shall be released from the custody on furnishing bail bond in sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of trial Court. If the needful is done, he shall be released forthwith provided not required in any other case or of fence.