1. ' The applicant Mst. Zainab has prayed for bail in Crime No,24 of 1997 registered against her and co-accused Kamil Shah at Police Station Saeedabad on 7-6-1997 at 900 hours under sections 302, 109 and 34, P.P.C.
2. ' The F.I.R. Of the incident has been lodged by the complainant Parwaiz Ali son of Khamiso at Police Station Saeedabad on 7-6-1997. The contents of the F.I.R. Are reproduced herein below: "The report is that, I am residing on aforesaid address, along with my father in law Haider Sahitho and my sisters. I am cultivating the lands of Meeral Shah on harap. My brother Manzoor Ali is residing in village Mehar Shah, alongwith his wife Mst. Noor Jehan and mother in law Mst. Zainab.
3. On 5,6-1997 I went to meet my brother Manzoor Ali at his house, situated in village Mehar Shah, at evening time, as the wife of my brother had given birth to a baby by way of operation and I had gone to see her. At night time I and my brother had consulted with each other that our relatives and community people are residing in village Siddique whereas he was residing alone in this village, therefore, we both the brothers should live together in village Siddique Sahito along with our brother people. This proposal was agreed by my brother Manzoor Ali, whereas the mother in law of my brother, who was our paternal aunt had opposed this proposal, that he should migrate and said that they would not migrate from this village. In spite of her opposition, my brother Manzoor Ali had said that they would migrate from this village early in the morning and that he would reside with us.
4. ' After saying so, my brother Manzoor Ali went to sleep in his room, at about 10/11.00 hours. In another room our paternal aunt Mst. Zaina'o and the wife of my brother were sleeping whereas I was sleeping in the 'Baramdah'. The electric bulbs were on, inside the house. On 6-6-1997 at about 4.00 a.m. There was commotion in the room and Mst. Noor Jehan wife of my brother also came there, in the room. We saw that Syed Kamil Shah son of Syed Mehar Shah by caste Syed resident of village Mehar Shah was armed with revolver and was over powering my brother. My paternal aunt Mst. Zainab was asking him that kill him. Then Syed Kamil Shah in presence of me and Mst. Noor Jehan, the wife of my brother, fired from the revolver, which he was carrying in his hand, which hit my brother, below the right ear. After sustaining revolver shot, my brother started struggling for the life and started bleeding and he died in our presence. Syed Kamil Shah told me and wife of my brother to keep quiet and if we raised commotion, we shall be killed. Then Syed Kamil Shah confined me and wife of my brother in another room. Then Syed Kamil Shah and my paternal aunt Mst. Zainab remained inside the room. I and Mst. Noor Jehan wife of my brother, were seeing from the net of window of the room and found that Kamil Shah after putting the dead body of my brother in a gunny bag, was dragging it from 'Baramdah' and that my paternal aunt Mst. Zainab was also helping him in dragging the same. Syed Kamil Shah was saying that he was going to keep the dead body in his godown and that thereafter he will get it disappeared. After saying so, he took the dead body with the help of my paternal aunt Mst. Zainab and shifted it over the wall to southern side towards godown and my paternal aunt Mst. Zainab also went outside the house from the entrance. At day time, I and the wife of my brother untied ourselves and opened the door and came out. Then I left Mst. Noor Jehan wife of my brother in the house of our relative Haji Nabi Bux and I myself went to inform our relative Yameen Sahito to village Mithoo Khoso, where I could not meet my relative Muhammad Yameen and I stayed that night there, for meeting my relative Muhammad Yameen, but he did not come. Today morning I had gone to my village and narrated the aforesaid facts to my maternal cousin Daud Sahito and Uris Sahito.
5. ' My maternal cousin Daud Sahito advised me to lodge the report with police. I have come to lodge the report that my paternal aunt Mst. Zainab, is divorcee and was residing alongwith my brother Manzoor Ali. My paternal aunt Mst. Zainab had illicit connections with accused Syed Kamil Shah since long and my paternal aunt was not prepared to migrate from village Mehar Shah. Due to the aforesaid reason my paternal aunt Mst. Zainab and accused Syed Kamil Shah in conspiracy to each other, accused Kamil Shah had fired from his revolver at my brother Manzoor Ali and has committed his murder. I have suspicion that in the said conspiracy Haji Muhammad Ramzan is also involved. I am complainant. Investigation be made."
6. ' The applicant submitted her bail application before the Sessions Court, Hyderabad which was dismissed by the learned Sessions Judge, Hyderabad by the impugned order dated 28-1- ' Mr. Muhammad Ashraf Leghari, learned counsel for the applicant has contended that the applicant is a woman and she is entitled to bail under proviso to section 497(1), Cr.P.C., that no overt act has been assigned to her and she has not caused any injury to the deceased. The learned counsel further contended that the F.I.R. Is delayed by 29 hours and only allegation against her is that she had helped the co-accused Kamil Shah in dragging the gunny bag containing the dead body of the deceased Manzoor Ali and that this fact is belied by the medical certificate as the deceased had no scratch nor there was any blood track so as to show that the gunny bag had been dragged as alleged by the prosecution. The learned counsel argued that vicarious liability of the applicant/accused under section 34, P.P.C. Is yet to be determined till then she is entitled to bail as she is in custody for the last 10 months. No redbvery of any weapon etc. Has been made from the applicant/accused and that the case of the applicant/accused requires further enquire and she is entitled to bail under section 497(2), Cr.P.C.
7. ' Mr. Ghulam Shabbir Memon, learned State counsel has not opposed the bail application of the applicant/accused and has very frankly conceded to the grant of bail to her.
8. ' I have heard the learned counsel for the applicant/accused and the learned State counsel. I have perused the F.I.R. And also the order of the learned Sessions Judge, Hyderabad.
9. Admittedly, the F.I.R. Is delayed by 29 hours and no overt act has been assigned to the applicant/accused nor there is any allegation against her of causing any injury to the deceased.
10. The only allegation against her is that she helped the co-accused in dragging the gunny bag containing the dead body of the deceased. The applicant/accused is a woman and she is entitled to bail under proviso to subsection (1) to section 497, Cr.P.C. The vicarious liability of sharing the common intention of the applicant/accused with the co-accused Kamil Shah and application of section 34, P.P.C. Requires determination at the trial after evaluation of prosecution evidence. The applicant/accused is in custody for the last 10 months. Under the peculiar facts and circumstances, case of the applicant/accused requires further enquiry as contemplated under section 497(2), Cr.P.C.
11. ' In the case of Mst. Baboo Jana v. The State, reported in 1990 PCr.LJ 326 late Mr. Justice Qaiser Ahmed Hamidi granted bail to the lady accused who was involved in a case under Customs Act.
12. The relevant observation in reproduced herein below:-- "6. Admittedly the applicant is a woman and her case falls within the first proviso to subsection (1) of section 497, Cr.P.C. The grant of bail to a woman although discretionary, the Courts have learned towards granting of bail even where the accused was found involved in a murder case inviting capital punishment."
13. In the case of Liaquat Ali v. Mst. Bashir an Bibi and another reported in 1994 SCM R 1729 bail of a woman who was accused in a case under section 10/16 Zina (Enforcement of Hudood) Ordinance was not cancelled by the Honorable Supreme Court on the ground that accused was a woman and her case was covered by first proviso to section 497(1), Cr.P.C.
14. For all the reasons stated supra I am of the considered view that vicarious liability of the applicant to be determined at the trial and she being a woman is entitled to bail under section 497(1), Cr.P.C.
15. And her case requires further enquiry under clause (2) of section 497, Cr.P.C.
16. ' On 25-5-1998 I granted bail to the applicant/accused by short order and above are the reasons of the said short order.
17. ' The above observations are of tentative nature and the learned trial Court will not be influenced by these observations. The trial Court will be at liberty to reach at its own conclusion on merits after recording the evidence.