' This order shall dispose of Criminal Miscellaneous Nos.2616/BC and Criminal Miscellaneous No,2617/BC of 1996 filed by Muhammad Bashir, petitioner-complainant, for the cancellation of ed to respondents Mst. Farhat Bibi and Tariq respectively by learned Sessions Judge, Okara vide orders, dated 15-4-1996 and 26-5-1996 in a case registered F.I.R. No,18 of 1996, dated 12-1-1996 under sections 302/407, P.P.C. Police Station "A" Division, Okara for the murder of Abdul Wahid husband of respondent Mst. Farhat Bibi as both the petitions arise out of the same F.I.R.
2. The prosecution story as given in the F.I.R. Lodged on the statement of Muhammad Bashir, petitioner-complainant, briefly stated is that on the night between 10/11-1-1996 at about 1-00 p.m.
Complainant's son Abdul Wahid returned home after collecting Rs,82,000 from the area of Pul Jorian Police Station Renala Khurd. At about 2-00 a.m. He heard a shriek of his daughter-in-law i.e, Mst. Farhat Bibi respondent (wife of Abdul Wahid deceased) and when he went to her room, he found two persons armed with a revolver and pistol demanding money from Abdul Waheed deceased. As his son refused, one of the assailants caught his son by neck and the other man fired thrice on his face. They took away Rs,82,000 which were lying under the pillow of Abdul Wahid deceased and golden rings of Mst. Farhat Bibi, his wife and decamped from the spot.
' After three days of the occurrence, petitioner-complainant gave a supplementary statement to the Investigating Officer and submitted that the F.I.R. Recorded earlier on, was not factually correct; that he was not witness of the occurrence; that he had made that statement at the asking of his wife as she was the first person to visit the room of his daughter-in-law where Abdul Wahid was asleep; that the story given in the F.I.R. Was told to her wife by Mst. Farhat Bibi and as per the later's version the assailants and already run away. He further stated that Mst. Farhat Bibi had illicit liaison with Tariq respondent; that the matter had come to petitioner's notice even prior to the occurrence; that respondent Mst. Farhat Bibi left the house with Tariq respondent within 48 hours of the death of Abdul Wahid deceased (her husband) and that he suspected Mst. Farhat Bibi and Tariq respondents to be involved in the alleged crime. Complainant's supplementary statement was corroborated by his wife who also appeared before police. Certain other witnesses also appeared before the Investigating Officer who stated about the illicit liaison of Mst. Farhat Bibi with Tariq, about their boarding a bus two days after the occurrence and about the extra-judicial confession of Tariq respondent. Mst. Farhat Bibi, respondent was arrested and in her statement recorded under section 164, Cr.P.C. She confessed that she had illicit liaison with Tariq respondent and they had hatched a conspiracy to kill Abdul Wahid. In furtherance of their conspiracy, a revolver .32 bore was supplied to her by Tariq who came to her house at 1-30 a.m. That day and she fired at Abdul Wahid deceased when he was asleep, having done so, she put the revolver in an attachi-case alongwith Rs,82,000 and her golden ear rings and handed it over to Tariq. Thereafter, she raised alarm and staged a drama that somebody had committed dacoity and murdered Abdul Wahid, deceased.
3. Respondent Mst. Farhat Bibi was granted bail on 15-4-1996 by learned Sessions Judge, on the ground that the Magistrate while recording statement of Mst. Farhat Bibi under section 164, Cr.P.C.
Did not administer warning, therefore, the said statement is inadmissible in evidence, that there was no direct evidence connecting the respondent with the alleged offence and that in view of the conflict between prosecution story as given in the F.I.R. And the subsequent statement of complainant, it is a case of two versions. Respondent Tariq was granted bail by the same learned Judge on 26-5-1996 on the ground that respondent Tariq is not named in the F.I.R., that the extra- judicial confession is a week type of evidence; that the subsequent statement of prosecution witnesses contradicted earlier version given in the F.I.R. And that the case of the respondent Tariq is at par with Mst. Farhat Bibi, respondent.
' Learned ounsel for the petitioner seeks cancellation of respondents bail on the grounds that the observation of the learned Sessions Judge that the Magistrate who recorded the statement of Mst.
Farhat Bibi respondent under section 164, Cr.P.C. Did not administer warning, is against the record; that there is no reason why complainant should falsely implicate his daughter-in-law, that the orders of learned Sessions Judge granting bail to respondents are arbitrary and being against the weight of record, he did not exercise his jurisdiction correctly and the same warrants interference in the revisional jurisdiction of this Court. It was further submitted that the prosecution collected evidence to the effect that respondents had illicit liaison; that they hatched a conspiracy; that there is extra-judicial and judicial confession of respondent Tariq and Mst. Farhat Bibi respectively; that Mst. Farhat Bibi led to the recovery of a revolver; that there is evidence to the effect that immediately after the occurrence Tariq respondent was coming out of the house of Muhammad Bashir alongwith the bag which contained money and the golden ear rings of Mst. Farhat respondent which later on were recovered from them and the fact that Mst. Farhat Bibi left her house within two days of the occurrence alongwith Tariq respondent proves their involvement.
5. Learned counsel for the respondents, on the other hand, has opposed the prayer for cancellation of bail by submitting that there are two versions of the prosecution i.e, the one given in the F.I.R. And the subsequent one given in the supplementary statement of the complainant which make the prosecution story doubtful; that confessional statement was procured by exerting pressure on Mst.
Farhat Bibi; that the extra-judicial confession is a week type of evidence and in absence of any corroboration no credence can be given to the same. It was further pleaded that the principles for the grant of bail and for cancellation of bail are different and there is no evidence available with the prosecution warranting cancellation of ed to the respondents. Learned counsel have also relied on the judgments reported in PLD 1994 SC 86, 1995 SCMR 1178, 1995 SCMR 932 and 1982 SCMR 321.
6. I have heard learned counsel for the parties and have also gone through the record.
7. Within three days of the lodging of the F.I.R., the complainant, in his supplementary statement implicated respondents. The Investigating Officer, collected evidence to the effect that respondent, Mst. Farhat Bibi had illicit liaison with respondent Tariq; that respondent Tariq was seen coming out of the house of complainant on the fateful night immediately after the occurrence alongwith a bag which contained money and golden ear rings. These articles were subsequently recovered from respondent -Tariq. Mst. Farhat Bibi made a confession before the Magistrate in her statement under section 164, Cr.P.C. That she had hatched a conspiracy in furtherance of which Tariq brought a .30 bore revolver and gave it to her for commission of murder with which she committed the offence. On being specifically asked, learned counsel for Mst. Farhat Bibi respondent could not deny that after her confession before the Magistrate she neither disowned the said statement nor she ever gave an application for transfer of investigation at any stage. According to him she disowned the confession in the petition made by her before the Court of Sessions. The confessional statement made by Mst. Farhat respondent not only involves her but fully implicate Tariq respondent. Prima facie, the same is admissible under section 43 of the Qanun-e-Shahadat Order.
The observations of the learned Sessions Judge that while recording statement of Mst. Farhat respondent under section 164, Cr.P.C. The Magistrate did not administer warning to her is against the record as copy of the statement which is annexed with the petition clearly shows that the Magistrate did observe the mandatory provisions of section 164, Cr.P.C. The nature of injuries received by the deceased and absence of signs of resistance on his body indicate that prima facie these injuries were caused when he was asleep as there was blackening on the wounds and there were no injuries on any part of his body except the bullet injuries on face. Abdul Wahid deceased was the only son of the complainant. Prima facie, Farhat Bibi in league with Tariq respondent committed the murder of her husband in a manner which betrays illicit liaison, treachery and deceit. There are reasonable grounds to believe that both the respondents are connected with the commission of the offence and the ed to them by the learned Sessions Judge was not a proper exercise of discretion. There is not cavil to the proposition that law extends special indulgence to a woman, but the discretion vested in a Court has to be exercised judiciously. While granting bail to the respondents, the learned Sessions Judge did not consider the documents available on record and in fact misread the evidence. The precedent case-law to which reference has been made by the learned counsel for respondent Tariq is not applicable to the facts of this case and is, therefore, distinguishable. In Muhammad Ibrahim and another v. Baita Gul and another PLD 1994 SC 86 the order of cancellation of bail of the High Court was set aside and bail was granted by the august Supreme Court on the ground "the petitioners have denied to have made any extra-judicial confession, therefore, in the absence of any other direct evidence against them, on the basis of such alleged confession bail cannot be cancelled. In view of these facts, it calls for further inquiry.
The High Court has the discretion to grant, refuse or cancel the bail. However, where a Sessions Judge has granted bail, the High Court can interfere, if it is shown that the discretion has been exercised arbitrarily, in disregard of some of the salient facts or in violation of legal principles applicable to the case".
' In Muhammad Javed and another v. The State 1995 SCMR 1178 there was no judicial or extra- judicial confession to connect the accused with the commission of the alleged offence whereas in the instant case respondent Mst. Farhat Bibi confessed to have murdered Abdul Wahid in her statement under section 164, Cr.P.C.
' In Muhammad Hussain v. Afzal Ahmad and another 1995 SCMR 932 the ing order was upheld as the only evidence against the accused was extra-judicial confession and recovery of blood- stained hatchet after two months of the occurrence.
' In State v. Asfandyar Wali and 2 others 1982 SCMR 321 the State appeal was dismissed and the order of acquittal of the High Court was not interfered with as the confessional statement under section 164, Cr.P.C. Was recorded after six weeks of the detention of the accused in police custody.
8. The proviso added to section 497, Cr.P.C. With regard to women accused is suggestive of a liberal treatment for the grant of bail. However, it does not ipso facto entitle them to bail irrespective of the gravity of the offence and the attending circumstances. Precedent case-law is not lacking when women have been refused bail on merit. In Taj Bibi v. The State PLD 1989 Quetta 60 the order cancelling a woman's bail in case of drug trafficking was upheld by the High Court and it was observed as under (at page.61):-- ' "Thus, females involved in such degenerated offences would not be automatically entitled to discretion merely by virtue of sex unless law so permits on merits."
' Similar view was taken in Mst. Amna v. The State PLD 1989 Kar. 40 and Mst. Akhtar Bibi v. State 1989 PCr.LJ 831.
9. For what has been discussed above I am inclined to allow both the petitions i.e, Criminal Miscellaneous No,2616/BC of 1996 and 2617/BC of 1996, set aside the ing orders, dated 15-4-1996 and 26-5-1996 passed by Ch. Muhammad Saeed, Sessions Judge, Okara and cancel the ed to respondents Mst. Farhat Bibi and Muhammad Tariq.
Bail cancelled.