Mst: Zainab Bibi vsJehanzeb

2011 Y L R 3085 [Peshawar]

Before Waqar Ahmad Seth, J

Mst. ZAINAB BIB1---Petitioner Versus JEHANZEB and another---Respondents Criminal Bail Petition No.1238 of 2011, decided on 12th August, 2011.

Criminal Procedure Code (V of 1898)---

-----S. 497(2)-Penal ----S. 497(2)---Penal Code (XLV of 1860), Ss. 302/109/148/149---Qatl-e-amd---Bail, grant of---Further inquiry---Occurrence was un witnessed as no witness had been shown by the complainant in support of his alleged version---Accused had been involved in the case after six days of the occurrence and such delay had not been explained reasonably---Co-accused involved in the matter with the same and similar role, having been granted bail, on the principle of rule of consistency, accused was also entitled to the same treatment---All said lacunae in the prosecution would be answered by the prosecution at the trial, and accused could not be kept behind the bars for an indefinite period---Accused having made out a case for further inquiry, he was allowed bail, in circumstances.

2009 SCMR 786 and 2011 SCMR 710 ref.

Sher Afzal for Petitioner. Respondent No.1 in person.

Aamirullah Khan for the State.

Date of hearing: 12th August, 2011.

JUDGMENT

WAQAR AHMAD SETH, J.---Petitioner seeks bail in case F.I.R. No.1001 dated 12-11-2010 for offence under sections 3021109/148/149, P.P.C, registered at Police Station, Katlang District Mardan.

2.The contents of F.I.R. reveal that on the eventful day Khial Dad reported the matter to the police to the effect that he married twice and at the relevant time he was present in his house with his two wives when friend of his wife, namely, Mst.Shaheen Akhtar rang on his cellular phone, which was given to his said wife for conversation. On this, his second wife, namely, Mst.Zainab, exchanged hot words with the former that she had given the contact number of the husband to your friend over which Mst.Shaheen Akhtar annoyed, took a pistol lying in the house and fired upon her person with which she sustained injury. She was rushed to the hospital but on the way succumbed to the injuries. Subsequently, on 11-11-2010, the complainant in his statement recorded under section 164, Cr.P.C. before the Magistrate charged his son-in-law, namely, Khial Dad for commission of the offence and the petitioner along with co-accused for abetment, hence the case was registered.

3.Learned counsel for petitioner contended that the petitioner is entitled to the concession of bail on the grounds of rule of consistency as the co-accused have been released on bail by the court of competent jurisdiction; that there are two versions in the prosecution case, one is given in the F.I.R. and the second after six days of the occurrence, which creates doubts in the prosecution and that the petitioner was charged for abetment, which was levelled against her after at a belated stage of six days of the occurrence. In support of his arguments, the learned counsel relied on 2009 SCMR 786 and 2011 SCMR 710.

4.On 1-8-2011, the complainant, namely, Jehanzeb put-up appearance before the Deputy Registrar of this court and stated, that he has engaged Mr.Sikandar Khan, advocate who will file his power of attorney on the next date, hence the case was placed before the court for disposal on 10-8-2011. On the said date, he again appeared before the court and stated that his counsel was out of station and requested for adjournment, hence the matter was adjourned. Today again when the case was called, he put up appearance and stated that his counsel is sick, thus, requested for adjournment, which was not acceded to and the matter was heard without his representation due to his delaying tactics.

5.As against that learned counsel representing the State contended that the petitioner was denied bail due to her active role of abetment by the lower court, therefore, at this stage she is not entitled to the grant of bail.

6.Admittedly, the occurrence is an un witnessed one as no witness has been shown by the complainant in support of his alleged version. The petitioner has been involved in the case after six days of the occurrence, therefore, the delay caused has not been explained reasonably. The co-accused involved in the matter with same and similar role have been granted bail by learned Additional Sessions Judge-VIII, Mardan through separate orders dated 22-4-2011 and 10-5- 2011, respectively, therefore, on the principle of rule of consistency the petitioner is also entitled to the same treatment. All these lacunas in the prosecution will be answered by the prosecution at the trial but till that stage comes, the petitioner cannot be kept behind the bars for indefinite period, therefore, the petitioner has made out a case for further inquiry.

As a sequel to the above, the petition in hand is allowed and the petitioner is granted bail in the sum of Rs.200,000 (Rupees two lacs) with sureties each in the like amount to the satisfaction of learned Illaqa/Duty the Magistrate, who shall ensure that sureties are local and men of means.

H.B.T./250/P Bail granted.