' Mst. Hayat Bibi alias Badri Jamala, petitioner, seeks bail in case F.I.R. 135, dated 14-5-1989 of Police Station Lakki Marwat, District Bannu.
2. This unfortunate case is of its own nature highlighting peculiar, features in the background. Mst.
Hayat Bibi (hereinafter to be called Badri Jamala) was married to Char Gul about 8/9 years ago.
Out of this wedlock, she gave birth to five children, of whom two daughters, Mst. Gul-e-Nasrin aged 7/8 years, Gul-eParveen, aged 5/6 years and a son, Muhammad Ishaq aged 3/4 years could survive. On 11-5-1989 at 18-35 hours, she lodged the report in Police Station Lakki and alleged that her husband Char Gul was lodged in Sub-Jail, Lakki on the charge of the murder of her mother. She took her children with a view to afford an opportunity to them to see their father although she had obtained a decree dated 29-4-1989 for dissolution of marriage from a Family Court at Lakki. Due to the dissolution of her marriage, Char Gul, her previous husband, abused her. On return from Lakki, her son, Muhammad Ishaq, fell ill and was running high temperature. She, therefore, took him in a Flying-Coach to D.I. Khan and showed him to a doctor who gave him some injections. She was on her way to one doctor Nasir in a Rikshaw when her son Muhammad Ishaq breathed his last. She apprehended a charge of murder of her son at the instance of her husband and, therefore, was constrained to lodge the report.
3. On the same day at 19-00 hours, an application by Char Gul was received by S.H.O., Police Station, Lakki, wherein Char Gul factually charged Badri Jamala for infanticide. He also charged her with lewdness and loose morals and also maintained that he had been falsely implicated in the murder of her mother by Mst. Badri Jamala. On 11-5-1989, the S.H.O. Prepared the injury sheet and inquest report of Muhammad Ishaq deceased child wherein he has not detected any bruise or injury on his body. Nonetheless, the boy was referred to the Medical Officer, Lakki Marwat, who conducted post-mortem examination on the following day of the report aforesaid and found second cervical vertebra fractured. He also detected an abrasion of one c.m. In the region of two c.m. Dia on the antero-lateral part of left side of neck and eight abrasions in the region of three c.m. Dia on the right side of neck. Swelling was also found due to haemotoma on the right side of neck.
4. On receipt of this report, Badri Jamala was arrested on the charge of infanticide and a case was registered under section 302, P.P.C. On 14-5-1989. After having failed in the Court of Magistrate and that of learned Additional Sessions Judge, Bannu at Lakki, to secure bail, she has moved this petition for her release on bail.
4-A. Sultan Sheheryar Khan Marwat, the learned counsel for the petitioner, seeks bail of the petitioner on the following grounds:--
(a) That the petitioner's son had died his natural death due to epidemic, called pestilence, which had spread during those days in D.I. Khan Division, but the petitioner had been involved in the case at the instance of her ex-husband from whom she had obtained divorce because he had killed her mother and was lodged in jail.
(b) That the only evidence against the petitioner is of a false report of her ex-husband who was nursing a grudge against her and the so-called postmortem report dated 12-5-1989, which, for reasons unknown, was withheld for two days and sent to police station on 14-5-1989 although both the injury sheet and inquest report contradict the post-mortem report; and
(c) That the petitioner, being a female, even otherwise, is entitled to bail under the first Proviso to subsection (1) of section 497, Cr.P.C.
5. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate-General, on the other hand, as usual, has opposed the bail on the ground that merely because the petitioner is a female does not entitle her as of right to claim bail in the gruesome murder of her child.
6. I have decided to refrain from making any observation on the merits of the case lest it should affect the trial one way or the other. However, the question remains as to whether there was any earthly reason for Badri Jamala to have killed her own legitimate son from her previous husband.
Looked in the background of mysterious circumstances surrounding the registration of the case after receipt of post-mortem report which was delivered to the police authorities after two days and which in turn is contradicted by the injury sheet and inquest report prepared by the S.H2O., is a matter which calls for further inquiry. Mst. Badri Jamala is the mother of three children out of the wedlock and it is yet to be determined as to why she should commit the murder of her own legitimate son from the complainant. The petitioner is, therefore, entitled to the concession of bail under the first proviso to subsection (1) of section 497, Cr.P.C. In this particular case, I would exercise my discretion under the said proviso in favour of the petitioner in view of the circumstances detailed above.
7. For the foregoing reasons, this petition is accepted and Mst. Hayat Bibi alias Badri Jamala shall be released on bail subject to her furnishing bail bonds in the sum of Rs,50,000 with two sureties in the like amount each to the satisfaction of Assistant Commissioner, Lakki.