' Through this application under section 498, Cr.P.C. The petitioner seeks bail before arrest who is nominated accused in case F.I.R. No.162 dated 6-10-2003 registered under section 322, P.P.C. At Police Station Choti District D.G. Khan.
2. The brief allegation in the F.I.R. Is that Zubaida Parveen petitioner is appointed in Rural Health Centre Choti Zarin, who is also running a private clinic illegally, where she delivers the children and also conduct operations. The complainant on 25-8-2003 went to the petitioner's clinic to get check up of his wife and there were 13/14 days left in the delivery of the child. The petitioner could not know that how many days were still left in the delivery and being inexperienced and due to greediness she by force got delivered the child, but could not control the post delivery situation resulting into death of his wife. Hence case was registered.
3. Learned counsel for the petitioner contends that Mst. Tasleem Bibi deceased was the colleague of the petitioner and was also her student while there was no criminal intention or mens rea in the present case to murder the deceased or even to cause harm to her and she had not obtained any benefit from the complainant for the said delivery. According to the learned counsel at the most it can be a case of negligence, falling within the purview of section 319, P.P.C. Which offence is bailable and the police with mala fide intention has applied-section 322, P.P.C. In order to bring the case within non-bailable offence. It is further contended that the petitioner is serving as Female Health Technician and it is within her duties to deliver the children in the absence of a doctor. It is also contended that the petitioner has been involved falsely in the present case due to the influence of District Nazim who is son of Farooq Leghari and Leghari Group has divided into two groups whereas petitioner belongs to Khokhar family which has not supported Leghari Group. It is also contended that the post-mortemexamination of the deceased was not conducted and cause of death could not be unearthed. While the petitioner is innocent, who is also a lady and her case falls within the purview of first proviso to section 497, Cr.P.C. It is further contended that nothing is to be recovered from the petitioner and sending of the petitioner to jail in such circumstances will cause humiliation and also damage to her reputation.
4. On the other hand learned counsel for the complainant opposes this application on the ground that the bail before arrest is meant to protect the innocent citizen and nothing has been brought on the record about any mala fides on the part of the police or the complainant to falsely implicate the petitioner in the present case. It is also contended that it will amount to deeper appreciation of the facts at this stage to hold that whether the offence falls under section 322, P.P.C. Or 319, P.P.C.
And the grounds urged by the learned counsel for the petitioner can be considered at the time of bail after arrest, hence bail application may be dismissed.
5. Learned State Counsel has also supported the learned counsel for the complainant.
6. I have heard the learned counsel for the parties and also perused the record. The complainant himself had not opted for the conducting of the post-mortem of the deceased and the deceased was buried. It is an admitted fact that the petitioner and the deceased were working in the same hospital as Female Medical Technician and Lady Health Visitor. Admittedly the deceased herself visited the house of the petitioner on the night of delivery and according to the petitioner she did not extract any amount from the deceased being colleague and in this case there was no occasion for the petitioner to make hurry for the premature delivery for any illegal gain. It has not been denied that even the earlier two children of the complainant out of the wedlock of her deceased wife were delivered at the hands of the petitioner. There is no allegation that the petitioner had any enmity, grudge or ulterior motive to cause the death of the deceased. At the most it can be a case of negligence on the part of the petitioner which falls under section 319, P.P.C.
Which is bailable. Whether the petitioner is involved in a case under section 322, P.P.C. Or under section 319, P.P.C. Is a question of further inquiry. The chances of false implication of the petitioner cannot be ruled out in the present case as the complainant seems to be aggrieved due to the death of his-wife and possibility cannot be ruled out that due to the intervention of the District Nazim as is being claimed on behalf of the petitioner the case has been registered. Even otherwise the petitioner is a woman and her case falls within the purview of first proviso to section 497(1), Cr.P.C. It is settled law that the grounds available at the time of post-arrest bail can be considered while granted pre-arrest bail, if the facts of the case so warrant. In these circumstances sending of the petitioner to jail merely on the ground that complainant had no enmity to falsely implicate the petitioner in this case will cause irreparable loss to her reputation, which will not be compensated in any manner.
7. For the foregoing reasons this application is accepted and adinterim bail already granted to the petitioner vide order dated 11-12-2003 is hereby confirmed subject to her furnishing fresh bail bonds in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the learned Judicial/Ilaqa Magistrate.
Ad interim .