Asia Bibi VS The State etc

ORDER-SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD.

JUDICIAL DEPARTMENT

Criminal Misc. No. 805-B of 2025

Asia Bibi

Versus

The State, etc.

S. No. of order/ Date of order/ Order with signature of Judge and that of parties or counsel proceedings Proceedings where necessary.

05.05.2025 Muhammad Saad, Advocate for the petitioner. Raja Shahzad Hassan, Advocate for the complainant. Balqees Rahat, State Counsel with Munawar Hussain, S.I, Khanna, Islamabad.

MUHAMMAD ASIF, J: Through the instant Crl. Misc. in terms of section 497-Cr.P.C, petitioner namely Asia Bibi prays for post-arrest bail in case FIR No. 337, dated 09.03.2024 under section 302, 365 and 34 PPC, registered with Police Station, Khanna, Islamabad.

2.According to the contents of the FIR, on 05.03.2025, Muhammad Pervaiz, son of Babu complainant’s brother approximately 42 years old, telephonically informed one Banaras Khan to go home, stating that he was in the Khanna area and would be arriving shortly. Following this call, Muhammad Pervaiz’s phone was switched off and since that time he is missing.

3.The learned counsel for the petitioner argued that the petitioner is innocent and has falsely been implicated in the instant case with malafide intention; that she has no concern with the alleged offence; that she was nominated in the second supplementary statement after about 8 days of lodging of FIR without disclosing the source of information; that the accused

Crl. Misc. No. 805-B/2025 Asia Bibi v. The State

could not be kept in jail for indefinite period; that the case of the prosecution against the petitioner is a case of no evidence at all and charging of petitioner in such a case of no evidence itself, suggests malafide of the complainant; the case of the petitioner is one of further inquiry and presently, she is no more required for purpose of investigation, therefore, she is entitled to the concession of post-arrest bail.

4.The learned State Counsel assisted by the learned counsel for the complainant repelled the above submissions by contending that the petitioner is involved in the henious crime of murder. Sufficient incriminating material is available on record, which, prima facie connects the petitioner with the commission of the alleged offence, hence, she is not entitled to the concession of post arrest bail at this stage.

5.Arguments heard, record perused.

6.It is a well-established legal principle that, while making a decision on bail application, only a tentative assessment of the evidence collected by the prosecution during the investigation is allowed; a detailed or deeper analysis of the material is not permitted at this stage. Furthermore, the criteria for granting pre-arrest and post-arrest bail are fundamentally different. In cases of pre-arrest bail, the primary consideration is whether there is any element of malice or bad faith on the part of the prosecution. Conversely, in post-arrest bail matters particularly where the alleged offence does not fall under the prohibitory clause of Section 497 Cr.P.C., the grant of bail is the general rule, and its refusal is considered an exception.

7.Perusal of record would reveal that petitioner was nominated in the instant case by the complainant in his

Crl. Misc. No. 805-B/2025 Asia Bibi v. The State

supplementary statement after 8 days of the lodgement of FIR and arrested on 09.04.2024 under Section 302, 365 and 34 PPC. The punishment provided under the Statute for the offence under section 365, P.P.C. is imprisonment for seven years; as such, the alleged offences does not fall within the prohibitory clause of section 497, Cr. P.C. as far as Section 302 PPC is concerned, it contains capital punishment of life imprisonment or death penalty.

8.In the present case, petitioner was not directly nominated in the FIR, no eye witness of the incident is available. As per report of the I.O the petitioner has made disclosure before the police regarding the alleged occurrence. It is settled principle of law that the disclosure before the police has no legal value under the provisions of Qanun-e-Shahadat Order, 1984. In this case the alleged disclosure of accused during police investigation while in custody has no evidentiary value and same cannot be used against her and no weight can be given to such disclosure of accused. Information or disclosure of any accused in custody of the police before a police officer is inadmissible/irrelevant under Article 38 and 39 of Qanun-e- Shahadat, Order 1984. Reliance is placed on 2017 P.Cr.LJ 479.

9.It is pertinent to mention here that neither statement of any private witness under sections 164 of the Cr.P.C. have been recorded nor any incriminating material has been recovered from the place of occurrence, which prima facie connects the petitioner with the commission of the alleged offence. The petitioner was not nominated by the complainant at the first instance, nothing has been brought on record except the CDR and disclosure of incident by the petitioner before the police. After evaluating the case from every angle, the case of the

Crl. Misc. No. 805-B/2025 Asia Bibi v. The State

petitioner requires further inquiry as envisaged in section 497 (2) Cr.P.C.

10.Furthermore, the petitioner is behind the bars since her arrest. Investigation has already been completed, she is nor more required for further probe, her further incarceration would serve no useful purpose and in absence of any substantial incriminating material, there is no ground to put the petitioner behind the bars.

11.In view of above tentative assessment, the petitioner has succeeded to make out a case for the grant of post arrest bail at this stage, consequently the instant Criminal Misc. is allowed, petitioner (Asia Bibi) is admitted to bail subject to her furnishing bail bonds in the sum of Rs. 100,000/- (Rupees One Hundred Thousand) with one surety in the like amount to the satisfaction of the learned Trial Court.

12.The observations recorded hereinabove are tentative in nature and shall have no impact upon the merits of the case.

(MUHAMMAD ASIF)

JUDGE

**//Kamran//**