This order will dispose of Criminal Misc. No. 698/11 of 1982 filed by Mukhtiar Hussain and Isa, petitioners, and Criminal Misc. 734/B of 1982 filed by Mst. Bhirawan, petitioner, for bail in respect of a case instituted against them under section 302/109, P. P. C. At Police Station Saddar, Dera Ghazi Khan. The former petition is for pre-arrest bail whereas the latter is for bail after arrest.
2. The brief facts of the case are that on the night between 8/9-4-1982 Khuda Bakhsh, complainant, woke up on the alarm raised by his son, Bashir Ahmad, deceased and when he with his son, Ghulam Shabbir P. W. Went to the Kotha of his deceased son, he found Mst. Bhirawan, petitioner, his daughter-in-law, inflicting injuries to his son Bashir Ahmad, deceased, with a sword. Nabi Bakhsh and Abdul Ghafoor P. Ws. Who were also attracted to the scene of occurrence on the alarm raised, saw the-incident. The motive for the occurrence, as stated in the F. I. R. Was that Mst. Bhirawan, petitioner, was a woman of loose character and Bashir Ahmad, deceased, the previous evening at Digerwela had remonstrated with her in that respect and had also beaten her.
3. Nothing was mentioned in the F. I. R: about any conspiracy hatched by Mukhtiar Hussain and Isa petitioners with Mst. Bhirawan, petitioner in respect of the incident in question. For the first time on 19-4-1982, one Khadim Hussain P. W. Came forward to say that he had seen Mukhtiar Hussain, petitioner, with Mst. Bhiravvan, petitioner, on the evening preceding the occurrence, conversing with each other and hatching a conspiracy to murder the deceased. It was not until 2i-5-1982 when statements under section 161, Cr. P. C. Of the said Khadim Hussain P. W. And two others, namely, Ghulam Sarwar son of Jind Wadda and. Ghulam Sarwar son of Ghulam Rasool P: Ws. Were recorded, in which various parts were attributed to Mukhtiar Hussain and Isa, petitioners as regards their having hatched a conspiracy with Mst. Bhirawan, petitioner to murder Bashir Ahmad, deceased.
3. I have heard the arguments of the learned counsel for the petitioners, the complainant and the State and have also perused the record.
4. On behalf of Mst. Bhirawan, petitioner, it is, submitted that she, being a female, is entitled to bail under the proviso to subsection (1) of section 497, Cr. P. C. It is further submitted that she has a suckling baby five months old with her and for better maintenance and upbringing of her infant child, she maybe released on bail. On behalf of the complainant and the State it is urged that she mercilessly and brutally butchered her husband by a sword by inflicting as many as 23 injuries and she does not deserve the benefit of bail.
5. On behalf of Mukhtiar Hussain and Isa, petitioners, it is submitted that Khadim Hussain, Ghulam Sarwar son, of Jind Wadda and Ghulam Sarwar son of Ghulam Rasool P. Ws. Are all related to the deceased, that Ghulam Sarwar son of find Wadda P. W. Was initially connected with the investigation from.94.4-1982, but did not disclose the conspiracy then, that Khadim Hussain P. W.
Initially disclosed something about the. Conspiracy earlier on 19-4-1982, which was then disbelieved, and that all the said four P. Ws. Reside within a radius of 2/3 furlongs from the complainant's house and being related to him, have come forward to fabricate a false story, which initially was never set up. On behalf of the complainant and the State it is submitted that Mukhtiar Hussain and Isa, petitioners, being conspirators with Mst. Bhirawan, petitioner, in the murder of Bashir Ahmad, deceased, are not entitled to prearrest bail and the names of the said two petitioners were not included in the F. I. R. Earlier, as at that time Khuda Bakhsh complainant, was not aware of the conspiracy. It is lastly submitted that prearrest bail should not be allowed in a case of murder.
6.I have given my anxious consideration to this case. This Court, in Miss Farah Naz's case (1) has already held that a lady cannot claim the benefit of the concession as provided in the first proviso to subsection (PLD 1979 Lab. 477) of sec--tion. 497, Cr. P. C. As a matter of right, but that the Court must exercise its discretion on a proper appraisal of the facts and the surrounding circumstances of the case, not unmindful of the fact that this concession is provided in heinous cases of murder and that the mere fact that a large number of injuries have been inflicted be the accused does not disentitle her to bail. In the instant case, Mst. Bhirawan, petitioner, is a young lady of 19/20 years old and she has a suckling child of five months. In appropriate cases this Court ha allowed bail to women detained in judicial lock up with suckling infants. If any authority is required for this view, Mst. Waheedan alias Hameedan alias Sheedan v. The State (1975 P Cr. L J 130) may be cited. Taking all circumstances into, consideration. I think the Mst. Bhirawan is entitled to be released on bail.
7. As regards Mukhtiar Hussain and Isa, petitioners, their conspiracy was not first recorded by Khuda Bakhsh in the F. I. R. The first indication of the conspiracy ,appears on 19-4-1982 when the statement of Khadi Hussain P. W. Under section 161, Cr. P. C. Was recorded, in which he named Mukhtiar Hussain petitioner, hatching a conspiracy with Mst. Bhirawan on the previous evening to murder Bashir Ahmad, deceased. Thereafter, on 21-5-1982, statements under section 161 of the same Khadim Hussain P. W ID and Ghulam Sarwar son of Jind Wadda and Ghulam Sarwar son of GhulamRasool P. Ws. Were recorded, wherein the first two referred to seeing an hearing Mukhtiar Hussain and Isa, petitioners, talking with Mst. Bhirawan petitioner, on 8.4-1982 and hatching a conspiracy to kill Bashir Ahmad deceased, and Ghulam Sarwar son of Ghulam Rasool P. W. Seeing and hearing Mukhtiar Hussain, petitioned, on 7-4-1982 talking with Mst. Bhirawan, peti--tioner, and arranging to have his nephew married to her daughter and propos--ing his own marriage with her.
It cannot be denied that Ghulam Sarwar son, of Jind Wadda P W. Had joined investigation from the first day of the occurrence and if there was any such conspiracy; he would have disclosed the same to the police. These three witnesses are not only related to the complainant, but reside within 2/3 furlongs from his house. In these circumstances, the question whether the said three witnesses did actually see and hear the conversation, as alleged, regarding the conspiracy, is a matter which calls for further inquiry. In these circumstances Mukhtiar Hussain and Isa, petitioners, have made out a case for grant of bail.
8. For the foregoing reasons, both the petitions are accepted. The interim bail granted to Mukhtiar Hussain and Isa, petitioners, on 30-5-1982, is hereby confirmed; Mst, Bhirawan petitioner, is released on bail, subject to her furnishing security in the sum of Rupees Thirty-five Thousand (Rs. 35,000) with two sureties each in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Dera Ghazi Khan.