' Petitioner who is charged with the murder of her husband Manzoor Hussain has moved this second bail petitioner in this Court, her earlier application for the grant of bail having been dismissed by this Court on 28-4-1984.
2. Prosecution case as stated in the report lodged with the police was that Allah Wasaya, servant of Manzoor Hussain deceased woke up at 2-45 a.m. On the night between 25/26-12-1983 and found room of the deceased locked from outside. He knocked at the door and heard some unusual voices. He entered the room by scaling over the wall and found the hands and feet of the petitioner tied with a rope while Manzoor Hussain was lying murdered on his bed. Allah Wasaya noticed a rope hanging from the ventilator. He reported the matter to the police and a case under section 302, P. P. C. Was registered at P. S. Saddar Muzaffargarh vide F. I. R., dated 26-12-1 983.
3. During the investigation of the case, petitioner confessed her guilt before Ali Muhammad and Molazam Hussain stating that she along-with her paramour Sarfraz Hussain had killed her husband and for giving the occurrence a colour of dacoity, a rope was hung from the ventilator. She further stated that after causing her some minor injuries, her paramour Sarfraz Hussain tied her with a rope. Petitioner was admitted in the hospital. She expressed ignorance and inability to make any statement about the occurrence until she made the aforementioned extra-judicial confession on 3-1-1984. Petitioner's paramour Sarfraz Hussain, is also stated to have made before Irshad and Nawaz P. Ws. a similar extra-judical confession on 3-1-1984 about the murder of Manzoor Hussain.
He is also alleged to have led to the recovery of blood-stained hatchet from the courtyard of the house of the deceased. Cash memo. Showing the purchase of Nylon chord was also recovered from him.
4. Petitioner applied for bail before the Sessions Judge, Muzaffargarh who by his order dated 19-3- 1984 refused the prayer for bail. Petitioner then moved this Court for the grant of bail by means of Criminal Miscellaneous No, 382-B of 1984 which was dismissed by my learned brother Ijaz Nisar, J.
Vide order, dated 28-4-1984 holding that the petitioner was not entitled to bail at that stage. Bail was refused to her in view of the following circumstances :- "There is no denying the fact that the occurrence took place in the petitioner's house. There is an allegation that she was carrying on with Sarfraz Hussain co-accused. It is further alleged that she kept quiet for some days in the hospital and refused to make any statement. According to the lady Doctor the injuries found on her person could be caused by a friendly hand. The extrajudicial confession made by Sarfraz Hussain co-accused in which he admitted to have murdered the deceased with the help of the petitioner is another circumstance going against her."
5. Petitioner then approached the Supreme Court of Pakistan but leave was refused to her by order, dated 7-12-1984 with the following observations :- "We have gone through the record of the case in the light of the submissions advanced by the learned counsel for the petitioner in support of this petition for leave to appeal. Since the High Court has not committed any error of law or violated any legal principle governing grant of bail in case such as this, there is no justification for interference with the order passed by the High Court."
6. Petitioner's co-accused Sarfraz Hussain who was allegedly maintaining illicit liaison with the petitioner was allowed bail by this Court on 30-1-1985 on the ground that there was no direct evidence in the case and he was sought to be linked with the offence by circumstantial evidence only. Note was also taken of the fact that there was no mention in the F. I. R. Of his love intrigue with the present petitioner and that his detailed extra-judicial confession also made no mention of his having hidden the blood-stained hatchet which was recovered at his instance. It was also noticed that he was behind the bars for about one year. Application (Criminal Miscellaneous 171/B of 85) moved by Allah Wasaya complainant seeking cancellation of bail of Sarfraz Hussain was rejected by this Court on 11-2-1985. Complainant's petition for leave to appeal (Cr. P. S. L. A. No, 183 of 85) was also dismissed on 18-6-1985.
7. Before proceeding further, note may be taken of the fact as stated by the learned counsel for the complainant that the case was fixed for trial before the learned Sessions Judge on 7-8-1984, 12-8- 1984, 18-9-1984, 2-10-1984 and 16-10-1984 but trial could not be held because of nonappearance of the petitioner on 12-8-1984 and absence of Sarfraz Hussain accused on the other dates. However, on 25-10-1984, learned Sessions Judge transferred the case to the learned Additional Sessions Judge. Thereafter, case has not been fixed for trial because the learned Additional Sessions Judge in whose Court the case is now pending ordered that it would be taken up at its turn.
8. It appears that after the bail was granted by this Court to Sarfraz accused and prayer for cancellation of his bail was also turned down, petitioner moved the present petition for bail mainly on the ground that her case stood on better footing as compared to that of Sarfraz co-accused who has since been allowed bail by this Court and further that she being a woman having minor children, her case was covered by the proviso to subsection (1) of section 497, Cr. P. C.
9. First question which arises for consideration is as to whether after the earlier bail application of the petitioner has been dismissed on merits by a learned Judge of this Court, this second petition for bail is maintainable. Learned counsel for the petitioner has contended that the second bail application would be competent if a particular circumstance was not brought to the notice of or was not considered by the learned Judge deciding the earlier bail application or if there is a new ground or fresh material or fresh development. Reliance for this proposition has been placed on a decision of Karachi High Court reported as Vikio v. Abdullah and another (1). In the case cited by the learned counsel, similar question was raised and the learned Judge after reviewing the case- law on the subject held that -a fresh bail can be moved on the ground that a particular circumstance has either not been brought to the notice of the Judge or it has not been considered by the Judge. It is agreed on all rands that if there is a fresh material then of course a bail application can always be repeated. It is only the question of
(1) 1980 P Cr. L J 602 appropriateness which is to be considered by the second Court whether in view of the previous application having been considered on merits he should consider a fresh application without any fresh material having been introduced. There is no bar in law to such application being made, if a party can show that his case has not been properly considered in all its aspects".
' In the afore referred case, following observations of the Supreme Court of Pakistan made in Zahoor Ilahi v. State (1), were particularly referred to.
"There is no mention in the order of Single Judge that he has also examined the statement of witnesses other than Manzoor."
' Supreme Court had, therefore, directed that fresh application be made for bail.
10. Relying on the aforementioned enunciation of law, learned counsel for the petitioner submitted that this fresh application is competent firstly for the reason that in her earlier bail petition, it was neither urged/pressed nor was it considered by the learned Judge that the petitioner being a woman was entitled to be released on bail in terms of first proviso to section 497(1), Cr. P. C. And secondly because her co-accused Sarfraz who was attributed a graver role was granted bail after the dismissal of her application which was a fresh development.
Apart from the two reasons submitted by the learned counsel, I also notice that the petitioner's first bail application was moved in this Court wit.Tin four months of her arrest and it was dismissed, of course, on merits but with the observation "I do not consider the petitioner entitled `t to bail at this stage." Taking all these circumstances into consideration,) I am of the view that this fresh petition can be entertained and considered! By this Court.
11. Learned counsel for the petitioner pressed the prayer for bail on a number of grounds including the aforementioned two grounds which he urged to support his contention that this Court can entertain and consider the present petition notwithstanding the dismissal of earlier bail application of the petitioner. I would, however, confine myself to the consideration of only following two points :-
(i) Whether in view of the fact that the petitioner's co-accused Sarfraz has been allowed bail by this Court, petitioner should also be released on bail ? And
(ii) Whether the petitioner being a woman is entitled to the grant of bail under the first proviso to section 497(1), Cr. P. C. ?
12. As regards the first point, learned counsel for the petitioner submitted that the prosecution case against the petitioner rests entirely on the extra-judicial confession and there is no other direct evidence of her involvement in the murder of her deceased husband. He pointed out that the allegation that the petitioner was having illicit connections with Sarfraz co-accused and for that reason they conspired to murder the petitioner's husband was not even mentioned in the F. I. R. As against this, case against the co-accused Sarfraz was based not only on his extrajudicial confession regarding the murder of the deceased but also on the recovery of blood-stained hatchet with which the deceased was done to death and of the cash memo. Showing the purchase of Nylon chord.
(1) PLD 1977 SC 273 ' Learned counsel, therefore, argued that the case of the petitioner was on better footing as compared to that of her co-accused who has since been allowed bail and as such she is also entitled to bail.
' Learned Assistant Advocate-General appearing for the State, on the other hand, pointed out with reference to the police record that the petitioner who was admittedly present in the house when the occurrence took place kept quiet for couple of days and did not make any statement regarding the circumstances resulting in the murder of her husband. This silence on the part of the petitioner, according to the learned A. A.-G., was deliberate and meaningful and was suggestive of her being privy to the murder of her husband.
13. Regarding the second point, learned counsel for the petitioner contended that the petitioner was entitled to the concession of bail by virtue of the first proviso to subsection (I) of section 497, Cr. P. C. His submission was that not only that the petitioner is a woman, she also has to look after four minor children eldest of whom is seven years old and the youngest is hardly two years of age.
He has argued that concession under the proviso has invariably been extended to the women- accused in heinous cases of murder even when there was direct evidence of their involvement. In support of his submission, he has relied upon Mukhtiar Hussain etc. v. The State (1), Amir Khan v.
Mst. Gohran and another (2), Mst. Raeesa v. The State (3) and Mst. Rehmat Bibi v. The State (4).
' In all the aforementioned cases relied upon by the learned counsel for the petitioner, women- accused who were charged with the murder of their husbands were allowed bail, inter alia, by giving them the benefit of first proviso to subsection (1) of section 497, Cr. P. C.
14. It may be of advantage to make a brief reference to these cases. In the first case 1983 P Cr. L J 1787, wife was accused of brutally butchering her husband with a sword by inflicting as many as 23 injuries and the occurrence was allegedly seen by eye-witnesses. She was, however, allowed hail by this Court on the ground that she "is a young lady of 19,20 years old and she has a suckling child of five months." In the second case NLR 1985 Cr. L J 139 allegation was that wife of the deceased was having illicit liaison with her son-in-law Fida Hussain who along with another accused killed the deceased by strangulating him. Prosecution case was that she had conspired with her paramour Fida Hussain to kill her husband. She was allowed bail any the High Court holding that it was a fit case for releasing her on bail and it was further observed that her case was covered by first proviso to subsection (1) of section 497, Cr. P. C. Supreme Court did not interfere and dismissed the Criminal Petition for Special Leave to Appeal. In the third case NLR 1985 Criminal 107, Mst Raeesa along with her paramour threw kerosene oil on the body of her husband and set it on fire as a result of which the deceased died on the same day. Occurrence was allegedly seen by witnesses. This Court allowed bail to 111st. Raeesa on the sole ground that she was a woman and was, therefore, entitled to be released on bail. In the last case 1985 SCMR 1050. Mst. Rehmat Bibi was accused of having killed her husband by administering poison to him.
Allegation was that she had developed a criminal intimacy with the co-
(1) 1983 P Cr. L J 1787 (2) NLR 1985 Cr. L J 139
(3) N L P 1985 Criminal 107 (4) 1985 SCMR 10s0 accused and in order to get rid of her husband, she had mixed poison in the food and given it to the deceased. Case of the prosecution was that the deceased had died in the house of the parents of Mst. Rehmat Bibi and no medical aid was provided to him when he was seriously ill. Deceased had also made a dying declaration. Report of the Chemical Examiner showed that viscera of the deceased contained insecticide. Mst. Rehmat Bibi was allowed bail by the learned Additional Sessions Judge on the ground that there was no direct evidence to show that there was any conspiracy or participation in the commission of the offence on her part and also for the reason that she being a woman, her case fell under first proviso to subsection (1) of section 497, Cr. P. C. It appears that to her was cancelled. She was, however, granted bail by the Supreme Court with the observation that "the allegations against the accused Malik Niaz Ahmad and the petitioner proceed on similar evidence and there is hardly any distinction between their cases. On the reasoning adopted by the learned Additional Sessions Judge II, there was no justification to interfere with the order of to the petitioner, particularly when there was an additional ground of her being a woman".
15. I have heard the learned counsel for the petitioner, learned A. A.-G. For the State, learned counsel for the complainant and have perused the relevant record. I am quite mindful of the legal position that a woman cannot claim as of right the benefit of the concession as provided in the first proviso to subsection (1) of section 497, Cr. P. C. But the discretion conferred by this proviso is to be exercised on a proper appraisal of the facts and surrounding circumstances of the case. In the instant case, there is no direct evidence of the petitioner's involvement/ participation in the murder of her husband. Even the allegation of her illicit intimacy with the co-accused Sarfraz was not mentioned in the F. I. R. In fact, case against her hinges mainly on the extra-judicial confession of the co-accused and that of her own. The co-accused who is alleged to have actually killed the deceased has already been allowed bail. Added to all this is the circumstance that the petitioner is a female and having four minor children to look after, youngest being only two years old and she is behind the bars for the last 18 months. Keeping all these facts in view and respectfully following the case law afore referred, I am inclined to grant bail to the petitioner. She is, therefore, admitted to bail in the sum of Rs, 50,000 (Rupees fifty thousand) with two sureties each in the like amount to the satisfaction of A. C./Duty Magistrate, Muzaffargarh.