U Page -1-of 7 IN THE PESHAWAR HIGH COURT, MINGORA BENCH (DAR-UL-QAZA), SWAT (Judicial Department) Cr.Misc:BA No.435-M/2023 Mst. Mujahida Bibi Vs The State ete ORDER Date of hearing 12.07.2023 For petitioner: Mr. Alaud Din Advocate For complainant: Syed Abdul Haq Advocate For State: Ms. Mehnaz, Asstt.A.G. renee Dr. Khurshid Igbal, J.- 1. Petitioner (Mst. Mujahida Bibi) seeks her release on bail in case FIR No.30, dated 27.05.2023, registered under sections 302/311/109/34 PPC at if, Police Station Salarzai, District Bajaur. 2. On 25.05.2023 at 15:30 hours, complainant Syed Bacha and Gul Muhammad reported that on 23.05.2023, brother of the former—Abdullah—and son of the latter—Nasim Ullah—left their respective houses on a motorcycle to attend wedding ceremony. At 20:30 hours, they were contacted through their respective cell phones where they disclosed to have been in the company of one Farooq and Misal in the vicinity of Haji Lawang. They made a commitment regarding returning home on the same night. The cell phones of both were, then, not responding. When their whereabouts were€ Page -2-of7 asked from Farooq and Misal, they showed ignorance regarding their association with the two. The report was initially lodged in respect of missing of both the above said persons vide daily diary # 19, dated 25.05.2023. Inquiry under section 157(1) Cr.P.C was initiated during which it came to light on the basis of CDR data, Abdullah had made his last contact with the present petitioner. Her husband and co-accused Wakil Khan were interrogated. They allegedly disclosed to have committed the murder of Abdullah and Nasim Ullah on the instigation of the present petitioner owing to their illicit relations with her. The dead bodies, they added, were then dragged and thrown in the bushes. They are further alleged to have led the police party to the spot where the dead bodies were recovered. 3. Arguments heard and record perused. 4. According to the first information report, the deceased persons were stated to have had their last cell phone contact with the petitioner. In his statement recorded under section 164, Cr.PC., the complainant stated that the deceased Abdullah had his last such contact with co-accused Tajbar. One Gul Muhammad, father of deceased Naseemullah, who accompanied the complainant at the time furnishing the first information, also recorded a similar statement. The two versions are thus conflicting. Both these persons in their aforesaid statements charged the petitioner for abetment only. In the site plan prepared at the instance of other male co-accused, the petitioner’s presence on the crime scene has been shown in a room where Abdullah was allegedly murdered. But the petitioner herselfPage -3-of7 has neither made any pointation, nor has anything incriminating been recovered on her instance. A certain cell phone SIM number has been attributed to the petitioner. However, there is no prima facie evidence of the fact that the same is registered in her name. Then, there is an allegation that petitioner had some illicit relations with both the deceased. There is no shred of evidence to prop up this allegation albeit tentatively. Thus, no reasonable grounds exist to connect the petitioner with the commission of the offence in hand. Learned counsel for the petitioner stated at the bar the petitioner has a milk suckling baby. He, however, has not set up such a plea in his petition. Even otherwise, when asked, he consulted a relative of the petitioner in the court, but couldn’t answer satisfactorily. Moreover, the evidentiary value of the alleged disclosure regarding the involvement of the petitioner in the commission of the offence is yet to be seen at the trial. 5. Indeed, there is no independent evidence on the record to prima facie connect the petitioner with the commission of the offences in hand. A major source used so far is that of the CDR There is now an established judicial view that CDR is not a conclusive proof of the guilt of an accused unless it is buttressed by concrete material on the record. Reliance is placed on Mst. Asiya v_ The State and another. (2023 SCMR 383), in which the Court observed: We have specifically asked the learned Law Officer that the leaned counsel for the complainant to show us from record any material, which could prima facie connect thePage - 4- of 7 petitioner with the commission of the crime but except the Call Data Record (CDR), nothing could be relied upon. This Court in a number of cases has held that 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. 6. Guidance is also sought from a 2021 case of Mian Khalid Pervez v. the State through Special Prosecutor ANF and another (2021 SCMR 522) (a criminal appeal), the Apex Court, has stated: Mere production of CDR Data without transcripts of the calls or end to end audio recording cannot be considered/used as evidence worth _ reliance. Besides the call transcripts, it ly should also be established on the record that callers on both the ends were the same persons whose calls data is being used in evidence. 7. The petitioner being a woman is also entitled to the concession of bail in accordance with the first part of section 497(1), Cr.PC., as held by the Apex Court in a recent case of Mst. Ghazala v. The State and another (2023 SCMR 882). The hon’ble Court has held as: 4, No doubt, the offence of gatl-i-amd (intentional murder) punishable under section 302, PPC. alleged against the petitioner falls within the prohibitory clause of section 497(1) of the Code of Criminal Procedure, 1898 (“Cr.P.C”) but being a woman, the petitioner’s case is covered by the firstPage-5-of7 proviso to section 497(1), Cr.P.C. The said proviso, as held in Tahira Batool case, makes the power of the court to grant bail in the offences of prohibitory clause of section 497(1) alleged against an accused under the age of sixteen years, a woman accused and a sick or infirm accused, equal to its power under the first part of section 497(1), Cr.P.C. It means that in cases of women accused etc. as mentioned in the first proviso to section 497(1), irrespective of the category of the offence, the bail is to be granted as a rule and refused only as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of section 497(1), Cr.P.C. The exceptions that justify the refusal of bail are also well settled by several judgments of this Court. They are the likelihood of the accused, if released on bail: (i) to abscond to escape trial; (ii) to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice; and (iii) to repeat the offence. 5. That being the legal position, we have asked the learned Additional Advocate General and the learned counsel for the complainant to show how the petitioner’s case falls in any of the said three well established exceptions. They, however, could not explain and satisfy the Court as to which one of the said exceptions is attracted to the petitioner's case. Their onlyPage - 6- of 7 response was that there is a sufficient incriminating material available on record of the case to connect the petitioner with the commission of the alleged offence. We are afraid, the response is misconceived. The Court is not considering the grant of bail to the petitioner under section 497(2) Cr.P.C under which the bail is granted to an accused as of right if it appears to the court that there are no reasonable grounds for believing that the accused has committed the offence alleged against him rather there are sufficient grounds for further inquiry into his guilt. For the purpose of deciding the prayer for grant of bail in exercise of the discretionary power of the court under section 497(1) Cr.P.C, the availability of a sufficient incriminating material to connect the accused with the commission of the offence alleged against him is not a relevant consideration. 6. In view of the facts and circumstances of the case, we do not find that there is a likelihood that the petitioner if released on bail, after securing sufficient sureties, would abscond to escape trial, or tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice, or repeat the offence. Her case, thus, does not fall within any of the three well established exceptions that may have justified refusing bail to her.Page -7-of 7 8. In the light of above facts and circumstances, there appears sufficient grounds for further inquiry into the guilt of the petitioner. Moreover, the investigation is complete and she is no more required for further interrogation. Thus, no usefill purpose would be served, if she is kept in jail. As held in Shabir Ahmed v. The State (2023 YLRN 35 Karachi), bail cannot be withheld as punishment and the law cannot be stretched upon in favour of the prosecution, particularly at bail stage. Moreover, the wrong caused by a mistaken relief of bail can be repaired by awarding the accused appropriate punishment in case he/she is found guilty at the trial. However, no satisfactory reparation could be offered to an innocent person for his/her unjustified incarceration at any stage of the case albeit his/her acquittal in the long run. Reference may be made to Asim Jahangir v. State (2020 YLR 891 Islamabad) and Nageeb Ullah v. State (2023 YLR 162 Quetta). 9. Resultantly, the instant petition is accepted. The petitioner shall be released on bail subject to furnishing bail bonds to the tune of Rs.1,00,000/- (rupees one hundred thousand) with two local and reliable sureties to the satisfaction of Maga Judicial Magistrate / MOD, who must ensure that the sureties are local, reliable and men of means. This order is based on tentative assessment of the record. It shall have no bearing on the merits of the trial at the trial. 10. The above are the reasons for my short order of even date. Announced p07 Wu (5. Monae Jae Dhar aa MTR