' 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.