KALSOOM BIBI and anothers vs THE STATE and anothers

ORDER

' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition, Kalsoom Bibi and Lubna Bibi/petitioners have sought for their post-arrest bail in case F.I.R. No,88, dated 21-2-2012, offence under sections 302, 337-A(i), 337-L(2), 365, 109, 34, P.P.C., registered at Police Station Saddar Kamoke, District Gujranwala.

2. Prosecution story, in brief, as per contents of the crime report is that on 21-2-2012 at 1:15 Kalsoom Bibi/petitioner No,1 along with Sughran Bibi co-accused took Adnan/brother of the complainant to their house and when the complainant along with his father reached there in order to rescue Adnan, they saw that both the petitioners along with Sughran Bibi were giving beating to Adnan.

The complainant and his father intercepted on which on the raising of lalkara by Safia Bibi, Sughra Bibi co-accused made two fire shots, which landed on Muhammad Mushtaq father of the complainant at his leg, who sustained injuries and subsequently succumbed to the same.

3. Learned counsel for the petitioners submits that the petitioners are innocent and have falsely been involved in this case by the complainant against the actual facts and circumstances nevertheless they were neither present at the place of occurrence at the relevant time nor they participated in the occurrence. Learned counsel vehemently contends that even as per contents of the crime report both the petitioners have not been ascribed any injury on the person of the deceased and Lubna Bibi/petitioner No,2 has not been alleged to have taken Adnan to the house. It is next argued that as per prosecution own version none of the petitioners has been ascribed any overt act, which contributed towards death of Muhammad Mushtaq/deceased. It is further contended on behalf of the petitioners that the injuries on the person of Adnan/injured, ascribed to the petitioners, fall under sections 337-A(i), 337-L(2), P.P.C., which are bailable in nature. Both the petitioners, learned counsel on their behalf urges, are female, hence their case is also covered within the ambit of first proviso of section 497, Cr.P.C., who are behind the bars since the date of their arrest and investigation being complete their 'person is no more required by the police. In these circumstances, learned counsel submits, by detaining the petitioners behind the bars for an indefinite period would not serve any useful purpose and they are entitled to the concession of bail.

4. As against above, learned Deputy Prosecutor-General vehemently opposes the contentions raised on behalf of the petitioners with the submissions that both the petitioners are duly named in the F.I.R. Regarding t'he occurrence in which one innocent person was done to death, whereas, Adnan sustained injuries, which are ascribed to the petitioners. Learned Deputy Prosecutor-General further submits that both the petitioners along with other co-accused while showing high- handedness were instrumental in abducting Adnan/injured and case against the petitioners involving capital punishment coupled with the factum of vicarious liability, they are not entitled to the concession of bail.

5. I have heard the arguments advanced by learned counsel for the petitioners, as well as learned Deputy Prosecutor-General and gone through the record available on file.

6. Nevertheless both the petitioners are named in the crime report, however, Lubna Bibi/petitioner No,2, has not been ascribed the role of taking Adnan/injured into the house. Moreover, even as per contents of the F.I.R., none of the petitioners either has been ascribed the role of raising lalkara nor any injury on the person of Muhammad Muthsaq/deceased father of the complainant. Injuries on the person of Adnan/injured ascribed to the petitioners fall within the provisions of sections 337- A(i), 337-L(2), which are bailable in nature. As contended by learned counsel for the petitioners, in the peculiar facts and circumstances, question of vicarious liability shall be determined during the course of trial after recording the prosecution evidence and case against the petitioners squarely becomes one of further inquiry into their guilt.

7. Admittedly both the petitioners are female, hence their case is also covered within the ambit of first proviso of section 497, Cr.P.C. Petitioners are stated to be previous non-convict, who are behind the bars since the date of their arrest and investigation being complete, they are not required by the police for further investigation.

8. As far as contention of the learned counsel for the complainant that offence against the petitioners entails capital punishment, therefore, they are not entitled to grant of relief prayed for is concerned, suffice it to say that in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585), the august Supreme Court 'of Pakistan has held that when otherwise case against the accused is covered under subsection (2) of section 497, Cr.P.C. He/she is entitled to the concession of bail as a matter of right. The petitioners are behind the bars since the date of their and no more required by the police for further investigation.

9. For the foregoing reasons, this Court is persuaded to hold that there exist sufficient grounds to accept this bail petition. Resultantly, Kalsoom Bibi and Lubna Bibi/petitioners are admitted to post arrest bail subject to their furnishing bail bonds in the sum of Rs,1,00,000 each with one surety each in the like amount to the satisfaction of the learned trial Court.