SADIQ M AHM UD KHURRAM , J.---Through this petition filed under section 497, Cr.P.C., the petitioner, namely Mst. Shahana Bibi seeks post-arrest bail in the case FIR No. 465 of 2020, dated 11.11.2020, registered at Police Station Shehr Sultan, District Muzaffargarh, in respect of offences under sections 302 and 34, P.P.C.
2. The allegation as against the petitioner, namely Mst. Shahana Bibi, culled from the evidentiary material produced before the Court, is that she served the tea as prepared by Mst. Safia Mai, the co-accused of the petitioner, and after taking the said tea, Mst. Kausar Mai, wife of the complainant, died.
3. I have heard the arguments advanced by the learned counsel for the petitioner, the learned counsel for the complainant/respondent No.2, the learned. Deputy District Public Prosecutor at length and perused the record with their able assistance.
4. A Court considering a bail application has to tentatively look to the facts and circumstances of the case and once it comes to the inference that no reasonable ground exists for believing that the accused has committed a non-bailable offence, it has the discretion to release the accused on bail. In order to ascertain whether reasonable grounds exist or not, the Court should confine itself to the material placed before it by the prosecution to see whether some perceptible evidence is available against the accused, which if left unrebutted, may lead to inference of guilt. Reasonable grounds are not to be confused with mere allegations or suspicions nor with tested and proved evidence, which the law requires for a person's conviction for an offence. The term "reason to believe" can be classified at a higher pedestal than mere suspicion and allegation. A perusal of the evidentiary material produced before the Court reveals that the petitioner has been saddled with the responsibility of serving the tea as prepared by Mst. Safia Mai, the co-accused of the petitioner.
There is no allegation against the petitioner that she was involved in the preparation of the poisonous tea at any time. It is also not discernable from the perusal of the evidentiary material produced before the Court that Mst. Safia Mai, the co-accused of the petitioner needed any help of the petitioner in the preparation of the poisonous tea. It is not the prosecution case that the petitioner herself prepared the tea after the partaking of which Mst. Kausar Mai died. Such types of allegations are very easy to level but very difficult to prove. This narrative of the complainant has to be taken with a pinch of salt and has to be considered and evaluated, while keeping in mind that it may not be completely true or accurate. I am in agreement with the learned Deputy District Public Prosecutor that deeper appreciation of the evidence at bail stage is not warranted under the law, but it is equally true that bail application cannot be decided in vacuum. The petitioner and her co- accused are related to each other and in that milieu, spreading the net wide by the complainant party, so as to falsely entangle the petitioner in the present criminal case appears to be a possibility which cannot safely be ruled out of the consideration at this stage. Prima facie there are reasonable grounds to believe that the case of the petitioner requires further inquiry and that it is yet to be determined, whether she facilitated the main accused during the commission of the offence in any manner. It would be for the learned trial court to determine if the co-accused needed the facilitation of the petitioner at the time of commission of the offence. The question whether the petitioner is vicariously liable for the offences committed can only be determined by the learned trial court after holding of the trial.
5. Another aspect of the case is that the petitioner at the time of her arrest was admittedly only about 12 years of age and of female gender. Right from inception, the philosophy behind the Juvenile Justice System is to reform, rehabilitate and reintegrate a child in conflict with law and a child in need of care and protection. The philosophy in dealing with children committing offence is remarkably different from an adult committing an offence, In the above background, it, is significant to refer to the provisions of the Pakistan Penal Code, 1860, i.e., Sections 82 and 83.
Section 82 of the Pakistan Penal Code deems children under 10 years of age incapable of forming an intent to commit a crime. Section 83 of the Pakistan Penal Code exempts child above 10 years of age and under 14, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion from criminal responsibility. Section 83 of the Pakistan Penal Code, 1860 provides as under: - "83. Act of a child above seven and under twelve of immature understanding. ---Nothing is an offence which is done by a child above ten years of age and under fourteen, who has not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct on that occasion."
6. For what has been discussed above, the case of the petitioner, namely Shahana Bibi becomes one of further inquiry covered by subsection (2) of section 497, Cr.P.C. Liability of petitioner for the said offences would be determined by the learned trial court after sifting the evidentiary worth of the material produced before the same. Till then, case of the petitioner would be within the domain of section 497(2), Cr.P.C. calling for further inquiry into the petitioner's guilt. The petitioner was arrested in this case on 21.11.2020, and since then she is behind the bars. The investigation qua her is complete and her person is no more required for further investigation, therefore, her continued incarceration would not serve any beneficial purpose at this stage.
7. In view of above discussion, the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to her furnishing bail bonds in the sum of Rs.5,000/- (rupees five thousand only) with one surety in the like amount, to the satisfaction of learned trial court.
8. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court.