1. ' This revision petition is to assail the order of District Court of Criminal Jurisdiction, Muzaffarabad, dated 22-3-1999, whereby the accused-respondent was released on bail by the said Court.
2. 'A Crime No,77 of 1999 for offence under section 302, A.P.C. Was registered at Police Station Muzaffarabad on 25-2-1999 at about 1-15 at night. This case was registered on a report by the complainant Haji Shah son of Satar Shah resident of Raru, Muzaffarabad. According to this report, the son of the complainant Mr. Shafique Hussain Shah alias Kala Shah was sleeping in his house alongwith his wife (accused-respondent) and his minor son namely Tuyyab Shah aged about 2- 1/2 years at the relevant time. At about 11-45 at night on 24-2-1999, the complainant heard a firing sound which attracted him to the house of the deceased Mr. Shafique Hussain Shah. He went to the house of his son whereupon he found him dead and the dead body of the deceased was soaked in blood. He outcried and due to his hue and cry his daughters and sons also reached the spot. Some inhabitants of the locality including Ali Ahmed Shah also arrived at the spot who witnessed the dead body soaked in blood while lying on his bed inside the room. The complainant, at the time of lodging the report, did not suspect anyone, however, he requested the police to investigate the matter.
3. ' The police concerned, after registration of the case made the necessary investigation. They found dead body of the deceased in the same position as disclosed in the report. The clothes of the deceased he was wearing at the relevant time were also blood stained. They took in possession a .32 bore pistol with six alive bullets in it from the bed of the deceased. A packet of cigarettes alongwith match box and Charas were also taken into custody from the bed of the deceased. Two fire empties one inside the room and the other outside the room were also taken into possession. A fire bullet was also taken into custody. The fire empties, according to police, were of .30 bore pistol.
4. The police also found the foot-prints of a male and female in a bath room situated nearby the room where the deceased was sleeping at the relevant time. The statements of persons who immediately reached the spot were also recorded. According to the statements of the persons who arrived at the spot immediately after the occurrence, the accused-respondent Mst. Musarat Bibi alias Phullan was standing outside the room where the dead body of the deceased was lying at the relevant time. According to the statements of different witnesses who reached there, a person was also seen while running from the spot, however, they could not identify him on account of darkness. The dead body of the deceased was also exhumed. The death was caused by a bullet fired from a distance more than three yards. A bullet was also taken out from the body of the deceased during post-mortem.
5. ' The accused-respondent was not taken into custody immediately after the occurrence, however, she was apprehended on 2-3-1999. She was kept under the police custody for some time but as she was pregnant, therefore, she was referred to hospital from where on the request of the police through Kham challan she was sent to judicial lock-up. An application for bail on behalf of the accused-respondent was moved before the trial Court and she stood released on bail through the impugned order while she was in judicial lock-up.
6. ' The accused-respondent remained under the police custody for the period required under law for investigation but except the statements of those persons who reached the spot immediately after the occurrence and seizure of different articles from the spot, the police could not trace the other culprit or culprits involved in the murder of the deceased. However, according to their opinion, the accused-respondent is involved in the murder of her husband.
7. ' The learned counsel for the complainant assisted by the learned Assistant Advocate-General argued that the conduct of the accused-respondent and the spot situation was of such a nature which could easily lead a prudent person to arrive at the conclusion that the accused-respondent was involved in the murder of her husband. According to the learned counsel, she was the only person who was present in the room at the relevant time and the spot inspection by the police revealed that the door of the room where they were sleeping was not broken and the bolt of the doors was also intact. Therefore, neither door was broken nor any damage to the bolt was made.
8. Thus, this fact clearly indicated that somebody from inside the room opened the door and helped some culprit to come in and assassinate the deceased. As the accused-respondent was the only person who could do so from inside the room, therefore, she was definitely involved in the murder of her husband, the learned counsel maintained.
9. ' On the other hand, it was argued by the learned counsel for the accused-respondent, that there was no direct evidence in this case and the material collected by the prosecution could not suggest to take back the concession of bail already given to the accused-respondent by the Court below. It was further argued that the accused-respondent was kept under police custody for the required period but the police failed to trace the real culprits, therefore, to send her behind bars was a futile exercise. She was pregnant at the relevant time and later on she gave birth to another child. At the time when she was under detention she was having a baby aged 2-1/2 years with her and keeping in view the pregnancy and the fact of a child already with her she was released on bail by the Court below.
10. The record of the case was tentatively examined. It is correct that a strong circumstance against accused-respondent is there and she may be involved in the murder of her husband but the circumstance how strong it may be cannot substitute the proof in a criminal case. The accused- respondent remained in police custody for statutory period but the police could not make any progress in tracing the other culprits. She was sent to judicial lock-up at the request of the police themselves from where she was released on bail. Admittedly she was pregnant then and now she is having two minors children with her. The father of the minors has been murdered and she is the only guardian to look after the minors. The argument of the prosecution that the other culprits can be traced out only when she is put behind the bars is also considered. She was sent to judicial lock- up at the request of the police and then she was released on bail. Therefore, in the opinion of this Court, no useful purpose will be served by putting her behind the bars at this stage. The case is still under investigation and a period more than one year has also been elapsed but the police failed to make any progress in this case. I do not think that by recalling the bail order of the accused- respondent any help can be extended to the police to trace the culprits involved in this case. She being a woman having two minors children in her custody deserves the concession like bail under the proviso to section 497, Cr.P.C. As stated earlier, there is no direct evidence in this case except a circumstance against the accused-respondent. As the case is till under investigation and it can be probed further by the police. Therefore, if any evidence showing the involvement of the accused- respondent is brought on record, the prosecution shall be at liberty to seek the cancellation of the bail order recorded in favour of the accused-respondent. At this stage, it is not felt proper to recall the impugned order and the same is allowed to stand. The revision petition being without merit is hereby dismissed.