IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION) 
 
PRESENT: 
MR. JUSTICE IJAZ UL AHSAN 
MR. JUSTICE MUNIB AKHTAR 
MR. JUSTICE SAYYED MAZAHAR ALI AKBAR NAQVI 
 
CRIMINAL PETITION NO. 1267 OF 2022 
(On appeal against the order dated 15.08.2022 passed 
by the Peshawar High Court, Peshawar in Crl. MBA 
No. 2260-P/2022) 
 
Mst. Asiya 
 
 
… Petitioner 
Versus 
The State and another 
 
 
…Respondent(s) 
 
For the Petitioner: 
Mr. Arshad Jan, ASC 
 
 
For the Respondent (2): 
Mr. Aftab Alam Yasir, ASC 
Syed Rifaqat Hussain Shah, AOR 
 
 
For the State: 
Mr. Shumail Aziz, Addl. A.G.  
Mr. Shahjee Hussain, Inspector 
 
 
Date of Hearing: 
18.11.2022 
 
JUDGMENT 
 
SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Through the instant petition under 
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the 
petitioner has assailed the order dated 15.08.2022 passed by the learned 
Single Judge of the learned Peshawar High Court, Peshawar, with a prayer to 
grant post-arrest bail in case registered vide FIR No. 613 dated 03.06.2022 
under Sections 302/34/297/201/203 PPC at Police Station Nowshera Kalan, 
District Nowshera, in the interest of safe administration of criminal justice. 
2. 
 
Briefly stated the prosecution story is that husband of the 
petitioner namely Barkat Ali went missing on 18.05.2022. The petitioner 
reported the matter to the Police on 24.05.2022 vide Naqalmad No. 8. 
Thereafter, the local police initiated an inquiry wherein it transpired that on 
19.05.2022, the local police of Police Station Nizampur found an unknown 
burnt dead body, which was buried in graveyard of Akora Khattak. The same 
Criminal Petition No. 1267/2022 
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was identified by Asghar Ali, brother of the deceased. On 03.06.2022, said 
Asghar Ali got recorded statement under Section 164 Cr.P.C wherein he 
stated that his brother has been done to death by Noor Zaman and Hassan 
Dar on the instigation/abetment of the petitioner. Thereafter, the formal FIR 
was lodged in the instant case.    
3. 
 
At the very outset, it has been argued by learned counsel for 
the petitioner that the petitioner has been falsely roped in this case against 
the actual facts and circumstances. Contends that the petitioner was only 
involved to the extent of abetment but no proof in this regard could be 
placed on record. Contends that the principal accused Hassan Dad has been 
granted post-arrest bail by the learned High Court, therefore, following the 
rule of consistency, the petitioner also deserves the same treatment to be 
meted out. Contends that the petitioner has a suckling baby girl of about 17 
months of age with her, which alone entitles her for the grant of bail. 
Contends that the whole story narrated by the complainant is concocted one 
and no independent witness has been associated with the case. Lastly 
contends that the case of the petitioner squarely falls within the purview of 
Section 497(2) Cr.P.C. entitling for further inquiry into her guilt. 
4. 
 
On the other hand, learned Law Officer assisted by learned 
counsel for the complainant defended the impugned order. It has been 
contended that though the petitioner is not specifically nominated in the 
crime report, however, a specific motive has been attributed to her. It is 
further argued that the baby of the petitioner is not residing with her in jail, 
therefore, she does not deserve any leniency by this Court.  
5. 
 
We have heard learned counsel for the parties at some length 
and have perused the available record with their able assistance.  
 
 
There is no denial to the fact that it was the petitioner, who had 
reported the matter to the Police on 24.05.2022 that her husband went 
missing. It was subsequent in time that she was implicated in the case 
pursuant to the statement of brother of the deceased recorded under 
Section 164 Cr.P.C. after lapse of 15 days. Admittedly, the recovered dead 
body of the deceased was fully burnt and overall condition of the dead body 
Criminal Petition No. 1267/2022 
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made it impossible to identify the deceased. According to the brother of the 
deceased, he identified the deceased from pictures, which prima facie may 
hamper the possibility of identification. We have been informed that 
although DNA test of the corpse has been done but the report is still awaited. 
We have specifically asked the learned Law Officer as to on which date the 
sample for DNA test was collected and sent to Forensic Science Laboratory 
and in how much time the report will come but no specific date could be 
pointed out to us. 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.  We have specifically asked the learned Law Officer and 
the learned counsel for the complainant to show us from record any 
material, which could prima facie connect the 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. 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 view was further reiterated by this 
Court in Criminal Petition No. 164/2022 passed on 14.04.2022. The principal 
Criminal Petition No. 1267/2022 
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accused namely Hassan Dar has been granted post-arrest bail by the learned 
High Court. We are of the considered view that the case of the petitioner is 
even at better footing as compared to the said accused. In this view of the 
matter, following the rule of consistency, the petitioner also deserves the 
same treatment to be meted out. Reliance is placed on the case reported as 
Muhammad Fazal @ Bodi Vs. The State (1979 SCMR 9), Muhammad Ajmal 
Vs. The State (2022 SCMR 274) & Muhammad Usman Shakir Vs. The State 
(2021 SCMR 1880). The petitioner is behind the bars for the last more than 
five months. 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. 
6. 
 
For what has been discussed above, we convert this petition 
into appeal, allow it and set aside the impugned order dated 15.08.2022. The 
petitioner is admitted to bail subject to her furnishing bail bonds in the sum 
of Rs.200,000/- with one surety in the like amount to the satisfaction of 
learned Trial Court. The above are the detailed reasons of our short order of 
even date.   
 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
18th of November, 2022 
Approved For Reporting 
Khurram 
