NASREEN BIBI vs STATE and another
This is a criminal petition where Mst. Nasreen Bibi sought post-arrest bail in a case registered under Sections 302 and 120B of the Pakistan Penal Code 1860 at Police Station Tank, relating to the murder of her husband. The core legal question was whether the petitioner, a female accused with a suckling baby, was entitled to bail where the charge was delayed by seven days, direct ocular evidence was lacking, no incriminating material was recovered, and no confession was made. The Peshawar High Court allowed the bail application, holding that the case fell within the ambit of further inquiry under Section 497 of the Code of Criminal Procedure 1898, and emphasizing the welfare of the innocent children confined in jail with the mother. The key principles laid down include the consideration of a female accused's status with a suckling baby and the necessity of safeguarding the welfare of minors, along with the tentative assessment of delayed statements and lack of direct evidence at the bail stage.
- Whether a female accused having a suckling baby in jail is entitled to the concession of bail when the case against her falls within the ambit of further inquiry?
- Does a belated statement under Section 164 of the Code of Criminal Procedure 1898, recorded seven days after the incident without plausible explanation, justify granting bail?
- Is bail warranted where there is no recovery of incriminating material and no confession made by the accused?
- Section 302, Pakistan Penal Code 1860
- Section 120B, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Mst. Nasreen Bibi, wife of Younas Khan, seeks bail in case FIR No, 783 dated 2/12/2010 of Police Station Tank under Sections 302/120B PPC.
2. Initially, the accused/petitioner lodged the FIR for the murder of her husband against some unknown persons but upon the statement of Misal Khan, brother of the deceased recorded on 9/12/2010 under Section 164 Cr.P.C., she has been made an accused in the case because of having illicit relations with Akhtar Zaman.
3. Learned counsel for the petitioner argued that the charge against the petitioner is belated, that there is no direct evidence against her, that there is no recovery of any incriminating material and that the petitioner has not confessed her guilt in the crime.
4. On the other hand, learned counsel for the complainant and State argued that the offence falls under the prohibitory clause of Section 497 Cr.P.C., that with her active connivance, the murder of the deceased has taken place; that she has suppressed. the material facts and that she is directly charged for the offence by the brother of the deceased in his statement.
5. I have carefully gone through the record and considered the arguments of the learned counsel for the parties.
6. Perusal of the record reveals that the occurrence has taken place on 2.12.2010 at night which was reported to the police the next day at 1020 hours by the petitioner herself. Though Misal Khan, brother of the deceased has charged the petitioner directly in his statement under Section 164 Cr.P.C., but such statement is dated 9.12.2010, i,e, after lapse of seven days after the occurrence.
There is nothing on the record at present to show that being brother of the deceased and inspite of the fact that he was in the knowledge of illicit relations between the petitioner and her paramour Akhtar Zaman, why he has remained mum for such a long time of 'seven days in not reporting the murder of his brother to the police when it was already reported by the petitioner. The petitioner has not made confession and being a female having a suckling baby in her lap, prima facie, her case falls within the ambit of further inquiry entitling her to the concession of bail.
7. Two children of three years and 8 years also are with the petitioner in jail. The welfare of children who are innocent is involved. In this respect, I rely upon the case of Mst. Nusrat Vs. State, reported in 1996 SCM R 973, wherein it has been held: 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 mina' 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.
In famous case of Ghamidiyya, our Holy Prophet Muhammad (p.b.u.h) had suspended the sentence on pregnant woman, not only till delivery of the child, but also postponed it till suckling period, i,e, two years, obviously for the welfare of the child. This shows the paramount importance and significance of the right of a suckling child in Islam and the unprecedented care taken of, and the protection given to a child born or expected to be born, by our Holy Prophet Muhammad (p.b.u.h). The golden principle of administration of justice enunciated by the Holy Prophet Muhammad (p.b.u.h) must be strictly observed and followed in our country. So, respectfully following the same, I allow ad-interm bail to the petitioner in the sum of Rs, 20,000/- with one surety in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Toba Tek Singh, till the hearing of the petition for leave to appeal".
8. Reliance is also placed on 1996 SD 596 wherein a woman was granted bail on the grounds that she was having a suckling baby in jail and direct evidence was also lacking. In this case also besides suckling baby, no direct evidence is available against the lady accused/petitioner.
9. Moreover, the complainant while charging the lady accused has not disclosed the source of information. At present, the charge is just on presumption with no solid reason.
10.In short, the accused/petitioner is charged after seven days of the report. No ocular evidence is available. The lady accused/petitioner is having two children alongwith her in jail. Nothing incriminating has been recovered and the petitioner has made no confession.
11.The application is, therefore, allowed and the accused/ petitioner is admitted to bail in the sum of rupees two lacs with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall see that the sureties are local residents of Tehsil Tank, reliable and men of means.
12.Above are the reasons for my short order of even date.
13.The observations made in this order are tentative in nature and shall not prejudice the mind of the trial Court at the time of trial.