S.M. ZUBAIR, J.- This order will dispose of Criminal Misc. No. 69- B/1995/BWP find by Syed Nasim-ur- Rehman Shah and Criminal Misc. No. 132- B/95/BWP, find by Mst. Robina Kausar, for their bail after arrest. Both the petitioners are involved in a case under sections 302/34 PPC arising out of FIR No. 209/94, dated 7-12-1994, registered at Police Station Sadar, Bahawalpur.
2. As per FIR, recorded on the written application of Mst. Azra Atiq, it is alleged that the first informant on 7-12-1994 at about 6-30 p.m., on hearing the ring of the telephone, picked up the receiver. The call was from Akhtar Abbasi, a friend of Muhammad Yasir, who wanted to have a talk with him. Muhammad Yasir attended the call and left the house alongwith Suzuki (Khyber) saying that Akhtar Abbasi had called him and that he was going there. The complainant Suspected that Robina Kausar and her would be husband Abdul Ghaffar, had called her son through Akhtar Abbasi, because Akhtar, Shahzad and Yasir were on visiting terms with Robina Kausar, but the complainant used to forbade her son to have connections with them, because Abdul Ghaffar had complained the complainant and Qazi Muhammad Shahid (brother of the husband of the complainant) that Yasir should not have meetings with Robina, otherwise, this would not bring any fruitful result. Later on, at about 9.00 p.m. The complainant received information that the dead- body of her son Yasir was lying in the hospital, whereupon she alongwith Qazi Muhammad Shahid and Sh. Abdur Rehman went there and identified the dead- body of Yasir. It is alleged that Abdul Ghaffar in connivance with his friends, had killed Yasir on account of his illicit relations with Mst.
Robina.
3. The learned counsel for Nasim-ur-Rehman Shah petitioner contended that the petitioner is not a nominated accused in the FIR and there is no motive against him. It was an unwitnessed occurrence which took place in the darkness of night and none has seen the occurrence, later on the police dishonestly imported two eye-witnesses, namely, Ahmad Khan and Ch. Muhammad Khalid just to beef up the prosecution case. There is nothing on the record to show as to how the car and the dead-body were taken to the hospital and this lacuna is sufficient to create doubt in the prosecution case. Even according to the alleged eye-witnesses, the petitioner was not armed with any weapon and it is a case of further inquiry whether the petitioner shared the common intention with the other accused or not, as the petitioner produced sufficient evidence of alibi that he was present in Jacobabad, which was not taken into consideration by the Investigating Officer, so even on this score also the petitioner is entitled to the grant of bail.
It is also contended that Akhtar Abbasi and Shahzad, who were nominated in the F.I.R, were not associated in the investigation, so it is a case of mala fide investigation, which has harmed the case of the petitioner to a great extent.
4. Learned counsel for Robina Kausar, after adopting the contentions of the learned counsel referred to above, additionally submitted that the petitioner being a lady is entitled to the grant of bail even in a case which falls within the prohibitory clause and placed reliance on 1974 P.Cr.L.J.
600, P.L.D. 1979 Lahore 477, 1983 P.Cr.L.J. 1783, K.L.R. 1994 Cr.C. D'Andre 1992 P.Cr.L.J, pages 302 and 554.
5. The learned counsel for the State submitted that the eye-witnesses who immediately arrived at the spot after hearing the gun-shot fires, had no animus against the petitioners to falsely involve them, in this case. Over and above this, at a bail stage, this Court has to examine the FIR, statements of the witnesses under section 161 Cr.P.C, and any incriminating evidence so far collected by the police, to arrive at the conclusion whether there exist reasonable grounds to believe whether the case against the petitioners falls within the prohibitory clause or not.
With respect to the privilege of the woman, learned counsel submitted that every criminal case is to be decided on its own facts and the circumstances' and no hard and fast rules can be laid down, as the petitioner is the sole moving figure in this sordid and gruesome drama, which ultimately resuited into the death of a young man, so the petitioner is not entitled to the grant of bail merely on the basis of her sex. Placed reliance on 1981 S.C.M.R. 1092, P.L.D. 1979 Lahore 471 and 1983 P.Cr.L.J. 1782.
6. The learned counsel for the complainant, while supporting the contentions of the learned counsel for the State, further submitted that so far the evidence collected by the police, prima facie connects both the petitioners with the crime, as Nasim-ur-Rehman Shah petitioner facilitated the decamping of his co- accused Robina Kauser from the spot on his motor cycle, which has been recovered from him. The recovery of blood-stained clothes of Mst. Robina Kauser gives sufficient corroboration to the prosecution version, as stated by the afore-mentioned two eye-witnesses who arrived at the scene after hearing the gunshot. He has also placed reliance on the wireless messages received by the police from the Laboratory Assistant where the occurrence took place and also by the SHO Cantt. Who brought the dead-body to the hospital. In the end, he submitted that at a bail stage, this Court is not required to make deeper appreciation of the evidence in order to arrive at the conclusion whether the case of the petitioners falls within the prohibitory clause or within the scope of further inquiry.
7. I have heard the learned counsel for the parties at length and have minutely perused the police file.
Admittedly, the name of Nasim-ur-Rehman Shah petitioner is not mentioned in the F.I.R. Applying the aforesaid principle of law that in order to arrive as a conclusion whether there exist reasonable grounds to believe that the case against the petitioners falls within the prohibitory clause or not, the Court has to examine the FIR, statements of the witnesses and any other incriminating evidence collected by the police during the investigation, I find that during the investigation, two eyewitnesses, namely, Ahmad Khan and Ch. Muhammad Khalid, who have apparently no motive to falsely involve the petitioners in this case implicate them. Even they have given very reasonable and proper explanation for their presence at the scene. I would not like to examine their evidence critically at this stage, lest it may prejudice the case of either party. Suffice it to say that the recovery of blood-stained clothes at the instance of Mst. Robina and the recovery of Revolver from Abdul Ghaffar, the alleged principal accused and the conduct of Nasim-ur-Rehman. Shah, leaving the place of occurrence immediately on the motor-cycle alongwith Mst. Robina and Abdul Ghaffar, which was later on recovered from him, leads to this conclusion that they had the common intention to cause the death of a young man; hence, no case for grant of bail to Nasim-ur-Rehman Shah is made out. His application is accordingly dismissed.
8. The contention of the learned counsel of Mst. Robina that she being a woman is entitled to the grant of extraordinary concession of bail in view of the first proviso to sub-section (1) of section 497 Cr.P.C, is devoid of force, keeping in view the heinousness of the crime which was committed at her behest, who is the central figure in this sordid drama which ultimately led to the brutal and gruesome murder of a young by. Resultantly, the bail application of Mst. Robina Kauser too is dismissed.