' This is an application for bail made on behalf of applicant Miss Shahla Raza who is involved in Crime No, 436 of 1990, Ferozabad P.S., under section 302/34, P.P.C. The bail application made on her behalf was rejected earlier by learned Sessions Judge (East) Karachi, vide order dated 6-4-1991.
2. On 13-5-1990 a telephonic information was received at Ferozabad P.S. That two persons were lying injured near Bungalow No,46-6, P.E.C.H. Society, Karachi. On receipt of this information Nazir Ahmad, S.I.P. Left for the place of occurrence and he despatched both the injured persons to Jinnah Post-Graduate Medical Centre, Karachi, where they died before making any statement. On 14-5- 1990 at 2-10 a.m. Nazeer Ahmad, S.I.P. Lodged F.I.R. On behalf of State. During the course of investigaion both the deceased persons were identified as Muhammad Mushtaque and Muhammad Rafique. The investigation further revealed that both the deceased persons who were active members of Mohajir Qaumi Movement commonly known as M.Q.M. Were abducted, tortured and then shot dead by the activists of Peoples Students Federation, commonly known as P.S.F. On 24-1-1991, applicant Miss Shahla Raza, Incharge Ladies Wing P.S.F. Was arrested in this case and after usual investigation she was sent up alongwith others to stand trial for the said offence before Special Court No,1, (Suppression of Terrorist Activities) Karachi. The case was, however, sent to the Court of Sessions Judge (East) Karachi, for want of jurisdiction.
3. I have heard Mr. Nazar Akbar, learned counsel for the applicant and Mr. S. Sarfraz Ahmad, learned Addl. A.-G. For the State. The latter has opposed the bail application.
4. It is contended on behalf of applicant that she being a woman is entitled to the grant of bail under first proviso to subsection (1) of section 497, Cr.P.C. Which lays down:-- "Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail."
' This proviso is an exception to the general rule of not releasing a person on bail who, if there appear reasonable grounds, for believing has been guilty of an offence falling within the prohibitory clause of section 497, Cr.P.C. The grant of bail to a woman although discretionary the Courts have always leaned towards such exercise even in a murder case. The grant of bail to a woman should be a rule and the discretion must be exercised in her favour in the absence of some compelling circumstances disentitling her to the grant of bail. If any authority is needed the cases of Mst. Allah Jiwai v. The State, reported in 1984 PCr. LJ 129, Mst. Elvinia alias Guddi v. The State, reported in 1984 P Cr. II 2911, Nasir Mehmood Khan v. The State, reported in 1985 P Cr.LJ 159, and Mst.
Baboo Jana v. The State reported in 1990 P Cr. LJ 326, may be cited with advantage. In Nasir Mehmood Khan's case it was held that mere heinousness of offence is not sufficient to take away the discretion of the Court to grant bail which is never refused as a punishment and there is no legal or moral compulsion to keep a person in jail. The applicant who is a young educated lady is thus entitled to the grant of bail on this score alone.
5. The case of the prosecution against the applicant rests upon judicial confessions of co-accused Saleemuddin alias Sallo and Ahmer Choudhry alias Roofi alone, which too were recorded on 28-1- 1991 four days after the arrest of applicant, meaning thereby that there was no iota of evidence on record on 24-1-1991 when the applicant was arrested in this crime. Accused Saleemuddin alias Sallo made the following statement, which according to the prosecution connects the applicant in this case. {{URDU TEXT}}
6. The confessional statement of co-accused Ahmar Choudhry alias Roofi is almost on the same lines. The confessional statements of the above two accused even if accepted on face value show that the applicant only provided a cover to others to dispose of Muhammad Mushtaque and Muhammad Rafique active workers of M.Q.M. Who were still alive. No overt act is attributed to the applicant who quite admittedly was not a party to abduction of the above two persons and their subsequent torture at the hands of co-accused. She was not even the party to the firing of fatal shots to these two unfortunate victim which according to the confessional statements were the individual acts of co-accused Saleemuddin alias Sallo and Ahmar Chaudhry alias Roofi.
7. How far, then, has the prosecution been able to prima facie connect the applicant in this case? I think is the primary question. With this evidence the learned Additional A.-G. Wants this Court to refuse bail to applicant when the law on this subject is that a conviction can never be based upon the confession of co-accused alone. In the case of Arif Nawaz Khan and 3 others v. The State reported in PLD 1991 Federal Shariat Court 53, it was observed in clear terms that a confession implicates the accused and not the co-accused and a confession of an accused person against co-accused is not acceptable if there is no other proof against the co-accused.
8. The mere mention of the name of present applicant by co-accused Saleemuddin alias Sallo and Ahmer Choudhry alias Roofi in their confessional statements to the extent mentioned above, would not justify rejection of her prayer for bail without considering other ingredients required to be taken into view. In the case of Mst. Waheedan alias Hameedan alias Sheedan v. The State reported in 1975 P Cr. L J 130, the accused who was charged for the murder of her husband was allowed bail mainly on the ground that the alleged confessional statement made by her was exculpatory in nature and was thus of no avail to the prosecution. The ratio of this case applies with full force to the facts of the present case and the impression that the accused who has made a confession or against whom there is confession of co-accused is not entitled to the grant of bail is wholly misplaced.
9. Having regard to the above factual and legal position, I am satisfied that the case against the applicant needs further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. And she is entitled to the grant of bail. The applicant was allowed interim bail on 14-4-1991 in the sum of Rs,100,000 (Rupees one lac only) with P.R. Bond in the like amount. The interim order is confirmed and she is allowed to continue on bail on the same terms and conditions till the disposal of the case.