' By this order I propose to dispose of Criminal Bail Applications Nos.709 of 1994 and 726 of 1994 filed on behalf of accused Syed Aamir Ali and co-accused Mst. Sameena respectively who are facing trial in a case arising out of F.I.R. No,220 of 1993 registered under section 302, P.P.C. At Shah Faisal Colony Police Station (CIA), Karachi.
2. Prosecution case as disclosed by complainant S.I. Raja Muhammad Bashir in his report lodged on 24-11-1993 is that the police, as per Station Diary No,7 entered at 08-55 hours regarding a suspected gunny bag lying near Ibrahim Ali Bhai School, proceeded to Shah Faisal Colony and found a dead body of a young man aged between 25 to 27 years in the said gunny bag. Hence the F.I.R was lodged by him and commenced with the investigation which resulted in the arrest of the two applicants alleged to be murderers of deceased Salamat Ali.
3. The initial investigation concluded by Raja Muhammad Bashir revealed that the deceased was serving as carpenter somewhere in Faderal Area. He had left his house on 23-11-1993 but did not return back.
4. After that investigation was handed over to S.I. Dost Muhammad of Shah Faisal P.S to whom one Amanat Ali disclosed that he had come to know from one of the relatives of deceased's wife (means applicant Mst. Sameena) That she as well as one Constable Sarfraz Ali of P.S. Shah Faisal Colony were main culprits in the said murder. It is strange that none of the two accused was arrested on the basis of this information even for the purpose of some inquiry. On account of these reasons one Amanat Ali, brother of the deceased approached the High Court as well as the I.-G. Of Police and showed his dissatisfaction with the investigation conducted by the said police officers.
Thereafter, investigation was handed over to Inspector Rashid Ahmad Qureshi to whom applicant/accused Mst. Sameena, the deceased's wife, disclosed during investigation that she had illicit connections with applicant/co-accused Syed Aamir Ali (the co-accused and applicant). The said applicant is also one of the relatives of the deceased. She confessed before the police that she had been filled with fear when her husband came to know about her illicit relationship with Aamir. Therefore, both of them had decided to get rid of the deceased. She disclosed that for the purpose of killing her husband she had given sleeping pills in a large quantity to him. These pills were brought to her by one Shahzad who is friend of applicant/co-accused Aamir. On account of those pills when the deceased went into a deep sleep, applicant Aamir put his hands on the mouth of her husband and Shahzad gave him hatchet (with hammer) blows on his head. Thereafter the dead body of the deceased was put in a gunny bag and thrown at the place mentioned above.
This confession was made only before the police and the same was made a foundation to arrest the applicants.
5. The police also claimed to have recovered certain letters from the house showing her illicit relationship with co-accused Aamir, besides blood-stained clothes of the deceased. After this confession before the police applicant Mst. Sameena was produced before the Court of Magistrate for recording her statement under section 164, Cr.P.0 but, there, she denied all the allegations.
' Out of two male accused, as mentioned above, Syed Aamir Ali was arrested but Shahzad made his escape good and is still awaited, therefore, incomplete charge-sheet was submitted in the concerned Court.
6. In their first bid, applicants tried their fate to get them released on bail from the trial Court but their applications were dismissed by a common order dated 22-8-1994 passed by the learned trial Judge. Hence the present applications before this Court.
7. Admittedly this is a case of circumstantial evidence and it needs a very careful consideration in the light of its salient features which can be summarised as evidence:
(i) The charge-sheet submitted by the police caught my specific attention. In its column No,5 several articles recovered by the police were shown such as recovery of one pair of scissors of iron, one blood-stained blanket, blood-stained wooden plank of door, one bundle of Nawar, one iron- made cot, one diary of green colour and cassette etc., etc., but this column does not show recovery of any hatchet/hammer which has been mentioned by the police as the weapon allegedly used by the accused persons. It 'clearly shows the crime weapon could not be recovered by the police during the whole period of investigation.
(ii) It appears from the record produced by the learned counsel for the State that applicant/accused Syed Aamir Ali had been detained by the police on 14-6-1994 but was shown arrested on 26-4-1994. He was allegedly tortured by the police as stated by his mother who approached the higher authorities such as I.-G. Police as well as the Chief Justice of Sindh High Court for his release by informing them about the torture being carried on by the police on her son.
The record of the High Court confirms his arrest much before 26-4-1994, the date he was shown arrested by the police. Nothing was recovered from the appellant. He, even, did not make any confession to the police. I am of the view that if any accused or suspected person is found detained wrongfully much before the date he was shown arrested in the record and the police also found to improve upon the prosecution story by addition of several facts during that period of illegal arrest then the case of such an accused comes out of the clutches of certainty and falls within the ambit of further enquiry. In the case in hand although the police had succeeded to get extra judicial confession of Mst. Sameena yet failed to maintain the same because when she was produced before the Magistrate to get her statement recorded under section 164, Cr.P.C, she denied all those allegations which she had confessed before the police either again herself or against the applicant.
(iii) Another important piece of evidence for consideration of this Court is medical report which shows that the accused had used sharp-edged weapon to kill the deceased. Hence the use of hammer as stated in the charge-sheet, becomes totally doubtful. And if that sharp-edged weapon was a hatchet, then admittedly it could not be recovered.
(iv) The record of the case also reveals that brother of the deceased had named several other persons, besides applicant Aamir. In his letters sent to the higher authorities by alleging that applicant Mst. Sameena had illicit relations with all of them. For example he named Faheem Akhtar and his brother Atif to be having such shameful relations with her. If statement of the deceased's brother is accepted to be having some weight then there is possibility that some other person may have killed the deceased.
8. Collective result of all these salient features makes out a case of further enquiry within the meaning of subsection (2) of section 497 Cr.P.C. Which entitles the applicants to be released on bail. Accordingly the applicants are granted bail in the sum of Rs,2,00,000 each and P.R. Bonds in the like amount to the satisfaction of the trial Court.
9. By a short order dated 20-9-1994 I had allowed bail to the appellants and these are the reasons for the said order.