Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Pakistan Penal Code, (XLV of 1860), Ss. 302, 324, 337-F(v), 337-A(i), 337-F(iii), 337-A(ii), 337-L(2), 148 & 149--Pre-arrest bail, confirmed--Medical evidence not supportive--Tentative assessment--Only tentative assessment of evidentiary material produced before Court is to be made at this stage--Petitioners have been alleged to have given blows with a Sota to injured witness--Said allegation is not borne out of record and is contradicted by medical evidence as only one injury was found which had been attributed to said two petitioners--Medical evidence is not supportive of ocular account of occurrence and a doubt does exist--It was alleged in FIR that accused while armed with sota gave a blow of same hitting on forearm of injured but investigating officer of case submits that he had concluded investigation of case and during investigation of case, he received sufficient evidence that petitioner was not armed with any weapon at time of occurrence--Co-accused of petitioners who had made firing at deceased namely is husband and father of co-accused respectively--In this manner, it is quite apparent that due to their relations with co-accused of petitioners, petitioners have been implicated in this case with mala fide--The involvement of petitioner in case is based on mala fide and malicious intent--Petition is allowed. [Pp. 985, 986 & 987] A, B, C, D & E
PLD2017 SC 730 ref.
Khawaja Qaisar Butt, Advocate for Petitioners.
Mr. Hassan Mahmood Khan Tareen, Deputy Prosecutor General for State.
Ch. Abu Bakar Khalid, Advocate for Complainant/Respondent No. 2.
Date of hearing: 25.3.2021.
PLJ 2021 Cr.C. 984
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram, J.
Mst. KOUSAR BIBI and 2 others--Petitioners
versus
STATE and another--Respondents
Crl. Misc. No. 1613-B of 2021, decided on 25.3.2021
Order
Through this petition under Section 498, Cr.P.C. the petitioners, namely Mst. Kousar Bibi, Mst. Soni Bibi and Mst. Sana Bibi, seek pre-arrest bail in case FIR No. 643 of 2020, dated 18.12.2020, registered at Police Station Tulamba, District Khanewal, in respect of offences under Sections 302, 324, 337-F(v), 337-A(i), 337-F(iii), 337-A(ii), 337-L(2), 148, and 149, PPC.
2. The allegations against the petitioners, culled from the evidentiary material produced before the Court, are that they, along with their co-accused, attacked the complainant party whereas the petitioner namely Mst. Kousar Bibi, while armed with a Sota, gave blow of the same, which hit on the left arm of Mst. Basra Bibi, the injured witness of the case, the petitioner namely Mst. Soni Bibi, while armed with Sota, gave a blow of the same hitting on the person of Mst. Basra Bibi, the injured witness of the case and the petitioner namely Mst. Sana Bibi, while armed with Sota, also gave a blow of the same hitting on the person of Mst. Basra Bibi, the injured witness of the case. It was further recorded in the FIR that as a result of firing made by Abdul Shakoor and Khizar Hayat, the co-accused of the petitioners, Saeed Ahmad died.
3. I have heard learned counsels for the petitioners, the learned counsel for the complainant/Respondent No. 2, learned Deputy Prosecutor General and perused the record with their able assistance.
4. This is a pre-arrest bail and only tentative assessment of the evidentiary material produced before the Court is to be made at this stage. The allegations against the petitioners are that they, along with their co-accused, attacked the complainant party whereas the petitioner namely Mst. Kousar Bibi, while armed with a Sota, gave blow of the same, which hit on the left arm of Mst. Basra Bibi, the injured witness of the case, the petitioner namely Mst. Soni Bibi, while armed with Sota, gave a blow of the same hitting oh the person of Mst. Basra Bibi, the injured witness of the case and the petitioner namely Mst. Sana Bibi, while armed with Sota, also gave a blow of the same hitting on the person of Mst. Basra Bibi, the injured witness of the case. It was further recorded in the FIR that as a result, of firing made by Abdul Shakoor and Khizar Hayat, the co-accused of the petitioners, Saeed Ahmad died. Mst. Basra Bibi, the injured witness of the case, was examined by the medical officer and medico legal examination certificate was issued with regard to the injuries observed on her person. According to the medico legal examination certificate of Mst. Basra Bibi, she had received only two injuries on her person, one on the chin and second on the left forearm. The petitioners namely Mst. 
Soni Bibi and Mst. Sana Bibi have been alleged to have given the blows with a Sota to Mst. Basra Bibi the injured witness. The said allegation is not borne out of the record and is contradicted by the medical evidence as only one injury was found which had been attributed to the said two petitioners. In this manner, the medical evidence is not supportive of ocular account of the occurrence and a doubt does exist/with regard the very participation of the petitioners namely Mst. Soni Bibi and Mst. Sana Bibi in the occurrence. The impact of said obvious contradiction in the medical and ocular account shall be better determined by the learned trial Court and at present it can be safely concluded that the said petitioners namely Mst. Soni Bibi and Mst. Sana Bibi have been involved in the occurrence by the complainant by widening the net and their involvement in the case is based on mala fide and malicious intent. With regard to the petitioner namely Mst. 
Kousar Bibi, it was alleged in the FIR that she while armed with Sota gave a blow of same hitting on the forearm of Mst. Basra Bibi, the injured witness of the case and the medical officer also observed an 
injury on the left arm of said Mst. Basra Bibi, but the Investigating Officer of the case submits that he had concluded the investigation of the case and during the investigation of the case, he received sufficient evidence that the petitioner namely Mst. Kousar Bibi was not armed with any weapon at the time of occurrence and had not given any blow to Mst. Basra Bibi. In this manner, the narrative of the FIR with regard to the allegation against Mst. Kousar Bibi has also been determined to be incorrect. The said conclusion of the Investigating Officer has not been challenged by the complainant till date and in presence of the said unchallenged conclusion, a possibility is palpable that Mst. Kousar Bibi had been involved in the case due to ulterior motive. The Investigating Officer, present before the Court, submits that he has concluded during the investigation that none of the petitioners namely Mst. Kousar Bibi, Mst. Soni Bibi and Mst. Sana Bibi were armed with any weapon and he has concluded that they had not taken part in the occurrence and had not caused any injury to any person hence, nothing is to be recovered from them. Another important aspect of the case is that Abdul Shakoor the co-accused of the petitioners who, had made firing at the deceased namely Saeed Ahmad is the husband of Mst. Kousar Bibi and father of Mst. Soni Bibi and 
Mst. Sana Bibi. In this manner, it is quite apparent that due to their relations with Abdul Shakoor the co-accused of the petitioners, the petitioners have been implicated in this case with mala fide. In view of 
the peculiar circumstances as detailed above, the assertion of the learned counsel for the petitioners that the involvement of the petitioners in the case is based on mala fide and malicious intent, is an assertion which cannot be said to be without substance or foundation
at this stage. The Investigating Officer has already verified the versions of the petitioners as well as the complainant. Sending the petitioners behind the bars, who are women and law does recognize some concession in this regard on the basis of their gender, would serve no useful purpose and would cause irreparable loss to their life and reputation. Reliance is placed on the case of “Khalil. Ahmad Soomro and others v. The State” (PLD 2017 SC 730) wherein the following principle has been enunciated:
“Although for grant of pre-arrest bail one of the pre conditions is that the accused person has to show that his arrest is intended by the prosecution out of mala fide and for ulterior consideration. At pre-arrest bail stage, it is difficult to prove the element of mala fide by the accused through positive/solid evidence/materials and the same is to be deduced and inferred from the facts and circumstances of the case and if some events-hints to that effect are available, the same would validly constitute the element of mala fide.”
5. For the reasons recorded above, this petition is allowed and ad-interim pre-arrest bail already granted to the petitioners, by this Court, vide order dated 10.03.2021, confirmed/subject to their furnishing fresh bail bonds in the sum of Rs. 200,000/- (Rupees two hundred thousand only) each with two sureties, each in the like amount, to the satisfaction of learned trial Court.
6. Needless to mention that any observations as contained in the above order are tentative in nature and shall not influence the trial Court.
(M.A.B.) Bail confirmed
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