Mst: Zahida vs Farooq Shah

2012 Y L R 1707 [Peshawar]

Before Waqar Ahmad Seth, J

Mst. ZAHIDA and another---Petitioners Versus FAROOQ SHAH and another--- Respondents

Criminal Miscellaneous No.166-P of 2012, decided on 2nd March, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 452, 365, 148, 149---Qatl-e-amd, attempt to commit qatl-e-amd, house-trespass after preparation for hurt, assault or wrongful restraint, kidnapping or abducting with intent secretly and wrongfully to confine person, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---No specific role in either causing the death of the deceased or any abduction had been attributed to the accused---Report had been lodged with a delay of three to four hours, which had not been fairly explained---Medical report suggested that the deceased had sustained a single injury but it appeared that the net had been thrown wider to involve many accused for the alleged crime---Accused were mothers of suckling babies, there-fore their detention in jail would have a bad effect on the health of the babies---Bail petition of accused was allowed and they were admitted to bail.

Attequre Rehman and Ajmal Khan for Petitioners.

Abdul Fayyaz for Respondent.

Babar Irshad for the State.

Date of hearing: 2nd March, 2012.

JUDGMENT

WAQAR AHMAD SETH, J.---Petitioners Mst. Zahida and Mst. Zakia seek bail in case F.I.R. No.64 dated

23-1-2012 registered for offence under sections 302/ 324/452/365/148/149, P.P.C. at Police Station Shabqadar District Charsadda.

2.The complainant reported the matter to the police at Casualty of Civil Hospital Shabqadar to the effect that he along with his wife Mst.Jamila, brothers Feroz Shah, Israr Ali Shah and other inmates of the house were present in his house when in the meantime Israr, Fahim sons of Shah Muhammad, Mujahid son of Dinogy, Sunny son of Sanobar duly armed with fire arms and Mst.Zahida daughter of Shah Muhammad, Zakia wife of Israr, the present petitioners, came there in Alto Car and Ambulance, entered his house and started firing at them with the intention to kill as a result of fire shots his wife Mst.Jamila was hit and later succumbed to the injuries while he and his above brothers escaped unhurt. The accused also forcibly boarded daughter of the complainant, namely, Mst.Fatima in the Ambulance and took her away. Motive was stated to be a family dispute between his daughter Fatima and her husband accused Fahim. The occurrence was stated to be witnessed by his brothers and other inmates of the house.

3.Learned counsel for petitioners contended that there is a delay of 3.30 hours in lodging the first report, which has not been explained reasonably; that no active role either in committing the death of deceased or in abduction has been attributed to the petitioners, therefore, they were involved in the matter malafidely; that the confessional statements of petitioners recorded by learned Judicial Magistrate concerned are exculpatory in nature, hence they cannot be tagged with the crime; that the alleged Ambulance used in the commission has not been recovered by the police, hence a concocted story has been leveled by the prosecution; that a single injury has been sustained by the deceased but the net has been thrown wider enroping innocent persons with the alleged crime; that both the petitioners are mothers of suckling babies, there-fore, their detention would affect the health of the latter, hence on the available record, the case of petitioners requires further inquiry.

4.As against that learned counsel for complainant assisted by learned State counsel while rebutting the arguments from other side contended that the offences for which the petitioners are charged entail capital punishment, which are corroborated by ocular and circumstantial evidence, thus, the petitioners are well connected with the crime and their bail petition do not deserve acceptance.

Arguments heard. Record perused.

5.Admittedly, the petitioners have been charged having allegedly common object with the co-accused but no specific either in causing the death of deceased or abduction has been attributed to them. Moreover, the report has been lodged with a delay of 3/4 hours, which has not been explained fairly. The medical report suggests that the deceased has sustained a single injury on his person but it appears that net has been thrown wider and involved as many accused for the alleged crime. It is stated at the bar that the petitioners are mothers of suckling babies, therefore, their detention in jail would badly affect the health of the latter. Let the prosecution answer the above lacunas at the trial but till that stage comes, the petitioners cannot be kept behind the bars for indefinite period.

This petition was allowed vide short order of even date and above are reasons for the same.

M.W.A./86/P Bail granted.