' Applicant Jeeyand alias Jeena (Bail Application No, 49 of 1989) and Muhammad Hassan alias Mulla (Bail Application No, 104 of 1989), are facing trial along with ,others in Crime No, 103 of 1988 Police Station Malir City under section 302/34, P.P.C. And section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, in the Court of Vth Additional Sessions Judge (East), Karachi. They applied for bail before the trial Court. The bail application moved on behalf of Jeeyand was dismissed on 7-12-1988, while the bail application made on behalf of applicant Muhammad Hassan was dismissed on 11-1-1989. Both the applicants have filed separate applications for bail before this Court, which for the sake of convenience are being disposed of by a consolidated order.
2. I have heard learned counsel for the respective applicants and Mr. Abdul Ghafoor Mangi, learned A.A.-G. For State. The latter has made a feeble attempt to oppose the bail applications.
3. On night between 23-7-1988 and 24-7-1988, Jan Muhammad and his wife Mst. Sozeen, who were sleeping in their house alongwith their children, were strangulated to death by means of electric wires. The murders were detected by complainant Illahi Bux, brother of deceased Mst. Sozeen, who resides a few paces away from their house. He went to the house of deceased Jan Muhammad and Mst. Sozeen at 6 a.m. And found the children sleeping, who were unable to disclose anything about this mysterious incident. On 24-7-1988 at about 6-30 a.m. The report of this incident was lodged at Malir City Police Station. It was disclosed in F.I.R. That on the relevant night accused Abdul Sattar, Qadir Bux, Abdul Ghafoor (all sons of applicant, Muhammad Hassan alias Mulla), Sarwar, Jia (present applicant) and Mistri Abdul Hameed were seen near the house of deceased persons.
There was a quarrel between accused Qadir Bux and deceased Jan Muhammad about four days prior to this incident, which according to F.I.R. Culminated into this unfortunate incident. During the course of investigation it transpired that Mst, Noor Jchan, Rashid and Nasir who arc minor children of deceased persons, had seen accused Qadir Bux, Abdul Ghafoor and Abdul Sattar along with 4 or 5 other persons, who had taken both the deceased persons forcibly to the room of the house, where they were done to death. The investigation further revealed that deceased Jan Muhammad, who was serving in Qatar, was a rich person possessing cash and valuable goods, which were found missing from the house after this incident. During the course of investigation the present applicants, and accused Qadir Bux, Abdul Ghafoor, Ghulam Sarwar and Nausherwan were arrested. On 15-8-1988 the police recovered one tape-recorder belonging to deceased Jan Muhammad from the possession of accused Nausherwan. On the basis of above evidence, in all twelve accused including six absconders were sent up.
4. There is no iota of evidence on record connecting applicant Muhammad Hassan alias Mulla with this crime. He was not nominated in F.I.R. As one of the persons found sitting near the place of occurrence, was not seen by the children of deceased persons at the time when both the deceased persons were taken to the room, although they have nominated his three sons namely, accused Qadir Bux, Abdul Ghafoor and Abdul Sattar. In fact all the three witnesses stated before police that the culprits were young. No recovery has been made from the possession of applicant Muhammad Hassan. Obviously he has been involved in this case only because he happens to be father of the main accused.
5. Likewise there is no evidence on record connecting applicant Jceyand alias Jia with this crime, except that he was seen sitting near the Wardat along with others on the relevant night. He has not been identified by the children of deceased persons. No identification test was held through any of the eyewitnesses to find out if he was present with accused Qadir Bux, Abdul Ghafoor and Abdul Sattar, when both the deceased persons were forcibly removed to the room of the house. No recovery of the robbed goods was made from this applicant. He was nominated in F.I.R. Only due to suspicion. The suspicion, however strong it may be, cannot be taken as a substitute for legal evidence.
6. The case against both the applicants is based on circumstantial evidence.
' In order that a circumstantial evidence may be relied upon it must be compatible with the guilt of the accused. In the case of such evidence failure of one link destroys the entire chain. To establish an offence, therefore, by circumstantial evidence four things are essential:-
(i) The circumstances from which the conclusions are drawn should be fully established.
(ii) All the facts must be consistent with the hypothesis.
(iii) The circumstances should be of a conclusive nature and tendency.
(iv) The circumstances should, to a moral certainty actually exclude every hypothesis, but the one proposed to he proved.
7. No such evidence is forthcoming against both the applicants. The case of Hafiz Khuda Bux and another v. The State reported in PLD 1988 SC 413, is a relevant authority in a situation under consideration, wherein it was held that the considerations regarding bail under section 497(1) and
(2) are different:-
(i) If 'there appear reasonable grounds for believing....' as visualised in prohibitory part of section 497(1) bail shall not be granted (exceptions part):
(ii) If, no such positive finding, though tentative, can be rendered against the accused then bail can be refused but ordinarily it is not refused without some cogent reasons:
(iii) If, however, there is a negative finding though tentative, on consideration of entire material, as envisaged by section 497(2) that 'there are no reasonable grounds for believing ....' then bail shall not be withheld:
(iv) If, there is no finding as is mentioned above in category (iii), bail cannot be granted in a case falling in the prohibitory part of section 497(1) (Exceptions part) merely on the ground that there is a scope for further enquiry'. There will hardly be any case in which there is no scope for further enquiry. This is often being ignored by the Courts.
8. The case of both the applicants falls in category (iii) and they are entitled to the grant of bail as of right.
9. A point which was touched upon during arguments by Mr. Abdul Mujeeb Pirzada, learned counsel for applicant Jeeyand may now be dealt with. It was contended that the investigation in this case has been reopened, which by itself is sufficient to make it a case for further enquiry. The learned A.A.-G. Had called Majid Hussain, Inspector Crimes Branch, who has confirmed that investigation was entrusted to him on the application of one Mst. Durra, mother of one of the deceased persons, but she is found to be a fictitious person. No comment on this aspect of the case is, therefore, necessary.
10. For the foregoing reasons both the applicants shall be released on bail in the sum of Rs,1,00,000 (Rupees one lac) each with P.R. Of the like amount to the satisfaction of the trial Court.
11. It is needless to point out that the observations made above are tentative in nature confined to the disposal of these bail applications. They should not influence the mind of the trial Court in any manner.