NAZIR GUL and another vs ZAR GUL and another
This matter concerns a post-arrest bail application filed by two accused petitioners charged under Section 302/34 of the Pakistan Penal Code 1860 for the alleged murder of their daughter-in-law. The core legal question was whether the petitioners were entitled to bail given the conflicting versions of the incident and the nature of the evidence presented. The Peshawar High Court allowed the bail application, holding that the case required further inquiry. The Court reasoned that the existence of two conflicting versions—one alleging suicide and the other alleging murder—necessitated deeper investigation. Furthermore, the Court observed that the prosecution's case relied heavily on suspicion and motive, which are insufficient to sustain a conviction or deny bail. The Court also noted the lack of direct evidence, the weak circumstantial evidence regarding the 'last seen' theory in a shared household, and the advanced age and gender of the petitioners. The key principle laid down is that motive, regardless of its strength, cannot substitute for substantive evidence, and suspicion alone cannot justify the refusal of bail in cases requiring further inquiry.
- Does the existence of two conflicting versions of an incident entitle an accused to further inquiry for the purpose of bail?
- Can suspicion, regardless of its strength, serve as a substitute for substantive evidence to deny bail?
- Is the 'last seen' theory sufficient to deny bail when the deceased and the accused resided in the same household?
- Does the proviso to Section 497(1) of the Code of Criminal Procedure 1898 apply to elderly or female accused persons?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' Having been charged in a case vide F.I.R. No.293 dated 29-32003 under section 302/34, P.P.C.
Registered at Police Station Kalu Khan, District Swabi, accused-petitioners applied for their release on bail in the Court of learned Judicial Magistrate Swabi .But their application was rejected vide order dated 10-4-2003. Thereafter, they moved the Court of learned Sessions Judge, Swabi but their application was also rejected vide order dated 28-4-2003. Now they have moved this Court for their release on bail.
2. It was on 27-3-2003 that one Nazir Gul, accused-petitioner No.1 herein, brought the dead body of his daughter-in-law, namely, Mst. Saeeda in Police Station, Kalu Khan and reported that she had committed suicide. The said report was incorporated in the Daily Diary No.40 on the said date.
3. On 29-3-2003 Zar Gul father of the deceased made report to the police that his daughter Mst.
Saeeda did not commit suicide but was murdered by the petitioners, on which date case vide F.I.R.
No.293 was registered against the petitioners and consequently they were arrested.
4. I have heard Sahibzada Asadullah, the learned counsel representing the accused-petitioners, Mr. Murad Ali, the learned counsel representing the complainant, Sardar Shaukat Hayat, learned D.A.- G. For the State and perused the record of the case.
5. I tend to release the accused-petitioners on bail for the following reasons: Firstly: Because it is a case of two versions. The first versionwas put forth by petitioner No.1 when he brought the dead body of Mst. Saeeda deceased and reported that she had committed suicide.
His report was incorporated in Daily Diary No.40 on 27-3-2003. The other version was advanced by Zar Gul father of Mst. Saeeda deceased on 29-3-2003 that his daughter had been murdered by the petitioners due to her strained relations w.Th them. The case, therefore, needs further inquiry as to which of the versions was correct.
' Secondly: The F.I.R. Lodged by Zar Gul is based on suspicionbecause he was informed about the death of his daughter. If he was aware of the motive of petitioners to commit the offence, why did he keep mum, which is yet another question requiring further inquiry. Moreover, the suspicion howsoever strong it may be, could not take the place of proof to warrant conviction.
' Thirdly: The occurrence was unwitnessed one. Except one rope,no incriminating articles was recovered from the spot, therefore, the circumstantial evidence was also weak. The only evidence in this respect is that the deceased was last in the company of petitioners but this cannot be made the basis for refusal of bail because being daughter-in-law of the petitioners, they were living in one and the same house, hence they had to be in their own house when the occurrence took place.
' Fourthly: Accused-petitioners are aged about sixty years andbeing old and infirm particularly petitioner No.2 being woman, their case falls within the proviso to subsection (1) of section 497, Cr.P.C.
' Fifthly: Prima facie the entire case against the petitioners hasbeen built on the basis of motive. It is by now settled law that motive howsoever strong cannot be substituted for substantive evidence and the same cannot be made a ground for refusal of bail.
6. I, therefore, allow the application in hand and admit the accused-petitioners to bail provided each of them furnishes bail bond in F the sum of Rs.2,00,000 (rupees two lacs only) each with two sureties each in the like amount to the satisfaction of the learned Judicial Magistrate Swabi who shall ensure that the sureties are local, reliable and men of means.
Cited by 1 case
- MUMTAZ REHMAN and 2 others vs THE STATE and another 2005 P Cr. L J 1261