This is an application by Mst, Rabia for bail under section 498, Cr. P. C. She is accused of causing the death of her husband Rajada by poisoning.
2. The facts of the case are that Rajada died on the 28th of August 1968. His son Ahmad reported the matter to the police at 2-00 p.m. on the same day, saying that his father used to take certain concoction early in the morning for health reasons and that after drinking the concoction that morning he had started vomiting and subsequently died thereof. He also stated that it was being rumoured that he had died of poisoning.
3. The viscera of the deceased was sent for chemical exa mination and it was found that the deceased had been administered arsenic. Thereafter on 5th February 1969, a case was registered against Mst. Rabia, on the statement of Ahmad complainant, wherein it was alleged that on the 27th of August 1968, Mst. Rabia had administered a drink to the deceased in the presence of Ahmad complainant, Sahu, Sajjada and Mst. Jawai.
4. During the investigation she was found to be innocent by the E>. S. P. who was investigating the case. In a subsequent investigation she was again found to be innocent by another, D. S. P. But notwithstanding these findings, the challan against i her was put up in the Court. She, however, remained on bail throughout the commitment proceedings. Her bail was cancelled on the 24th of April 1970, when the order of commitment was made.
It is argued by the learned counsel for the petitioner that she was the second wife of the deceased and that her step-son Ahmad complainant, who was keen to deprive of her and her two sons aged 5 and 7 years, of the property of the deceased. It is note worthy that no allegation was made in the first instance, on the 28th of August 1968, that the accused had administered the drink to the deceased. Subsequently, however, when the report of the Chemical Examiner, showing that the deceased had died of poison ing, was received, the story that the petitioner had given the drink to the deceased in the presence of Ahmad complainant and some other relatives of the deceased was put forward. According to the learned counsel for the petitioner this was an effort on the part of Ahmad complainant, who is the petitioner's step-son to get her involved in the case and thus deprive her and her two sons of the inheritance of the deceased's property.
5. Learned counsel for the State submits that the order of commitment is a complete bar to the granting of the bail in a case punishable by death or transportation as it shows that there are reasonable grounds to believe that the accused is guilty of the offence for which he or she is committed. He relies on Muhammad Shafiq v. Muhammad Hanif and another (I), wherein, while discussing the effect of the order of commitment on the pro priety of granting bails under section 497/498, Cr. P. C., their Lordships of the Supreme Court observed as follows :-- "To arrive at the state of mind required by section 210 of the Criminal Procedure Code one has as of necessity, to go beyond the stage of mere belief as to the existence of 'reasonable grounds'. The Magistrate has to be 'satisfied' that a prima facie case has been made out. It is difficult, therefore, to appreciate as to how it can possibly be argued that even though a prima facie case has been made out, there are no reasonable grounds for believing the accused to be guilty."
The learned counsel for the petitioner, however, points out that the petitioner being a woman, her case is covered by the proviso contained in section 497, Cr. P. C., and it is not necessary in her case to show that there are reasonable grounds for believing that she is not guilty of the offence alleged against her, before she can be granted bail.
6. A salient feature of the present case is that no allegation was made against the accused in the first instance and story involving her was, for the first time, put forward on the 5th of February 1969, that is, almost six months after the incident. Again, during the two investigations, two Investigating Officers of the rank of D. S. P. successively found her to be innocent. Although the opinion of the Investigating Officers is not legal 'evidence' yet, as held by their Lordships of the Supreme Court in Rehmat Ullah alias Rehman v. The State and another (2):
(1) 1970 SCMR 143 (2) 1970 SCMR 299 10 Pakistan Criminal Law Journal [Voi. V Rahia V.
State not constitute legal evidence, but being adverse to the prosecu tion, they put one on an inquiry as to the veracity of the prosecution case."
Aslam Rlaz Hussain, J It can, therefore, be taken as a 'ground' for the purpose of arriving at a conclusion required by section 497 (1).
7. It is also pleaded on her behalf that the petitioner has two minor sons aged 5 and 7 years and there is nobody to look after them.
In view of the above-mentioned facts I feel that this is a fit case for the grant of bail notwithstanding the fact that she is being tried on a charge of murder. She is, therefore, granted bail in the sum of Rs. 10,000 (Rupees ten thousand only) with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Chiniot.
8. It might be mentioned that this order shall not affect the merits of the case, as the truth or falsity of the allegations against them shall be determined at the trial.
Sadu V.