Perusal of Section 107 PPC reveals that three ingredients are essential to dub any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of abetment. All the three ingredients of Section 107 PPC are prima facie missing in this case.

 The only allegation against the petitioner is that the whole occurrence was committed by the accused on her instigation/abetment. However, no specific date, time and place where the conspiracy was hatched has been mentioned in the said statement. Even name and number of witnesses to that extent are not available on the record.

Perusal of Section 107 PPC reveals that three ingredients are essential to dub any person as conspirator i.e. (i) instigation, (ii) engagement with co-accused, and (iii) intentional aid qua the act or omission for the purpose of completion of abetment. All the three ingredients of Section 107 PPC are prima facie missing in this case.

In absence of any concrete material the Call Data Record is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused.

We have been informed that the petitioner has two children, one of which is a suckling baby girl of 17 months, who has been confined with her in jail. The other one is living with the grandmother. Learned counsel for the complainant could not deny this fact. In Mst. Nusrat Vs. The State (1996 SCMR 973) this Court has candidly held that “the suckling child of the petitioner kept in jail is undoubtedly innocent. He is kept in jail with mother obviously for his welfare. The concept of "welfare of minor" is incompatible with jail life. So, instead of detaining the innocent child infant in the jail for the crime allegedly committed by his mother, it would be in the interest of justice as well as welfare of minor if the mother is released from the jail.”

This court has time and again held that liberty of a person is a precious right, which cannot be taken away unless there are exceptional grounds to do so. She is otherwise a woman and her case is covered by first proviso to sub-Section 1 of Section 497 Cr.P.C. Merely on the basis of bald allegations, the liberty of a person cannot be curtailed. In these circumstances, the petitioner has made out a case for bail as her case squarely falls within the purview of Section 497(2) Cr.P.C. entitling for further inquiry into her guilt.

CRIMINAL PETITION NO. 1267 OF 2022
Mst. Asiya vs The State and another
18-11-2022