1977 P Cr (PLP)

‑‑ S. 494‑Contcntion that accused attributed lalkara would be more disposed to conceal his identity than disclose it while taking part in murder at night time‑Contention, held, correct and matter requires further enquiry‑Bail confirmed, in circumstances. Talib H. Rizvi for Petitioners. Nusratullah for the Complainant. Tanvir Ahmad, Asstt. A.‑G. with Sajid Bashir for the State. Nasir Ahmad, Faiz Ahmad petitioners are accused of the murder of Abdul Sattar. The case was registered against them on 22‑5‑1976 at Police Station Chuchak, District Sahiwal.

2. It is alleged that Faiz Abroad petitioner had illicit connection with Mist. Kausar sister of Nasir Ahmad petitioner; Abdul Sattar deceased scandalized them by saying that Mst. Kausar had conceived of Faiz Ahmad. This offended the petitioners and on the night of occurrence, both armed with hatchets came to the land of Unman Din. Abdul Sattar (deceased) and his father Umar Din had slept there to guard the harvested wheat. Faiz Ahmad raised a lalkara at the deceased upon which Nasir Ahmad petitioner gave a hatchet blow on the neck of Abdul Sattar, which killed him. Umar Din (informant) got up and witnessed the occurrence. Hakam Ali and Imam Din who were in the vicinity, had come there to irrigate their field also witnessed the occurrence and were threatened by the accused to stay away from them.

3. Contradictory affidavits of Imam Din have been attested by different Oath Commissioners of Sahiwal District. In the fit at affidavit allegedly made by Imam Din (relied upon by the petitioners), the witness showed ignorance about the murder. But in the subsequent affidavit (relied upon by the complainant), the witness claimed that he did trot make the earlier affidavit. Obviously one of the two affidavits is false or the witness is shifting his position for one reason or the other. Any contact with a witness of a criminal case would amount to tampering with evidence. There are only three sections in the Code of Criminal Procedure i.e. sections 74, 526 and 539‑A according to which a fact may be got proved by an affidavit. It follows that an affidavit not covered by these sections is not legal evidence. It may be mentioned here that section 164, Cr. P. C. provides for recording the statement of a witness by a Magistrate which course was not adopted in this case. It will be for the trial Court to go into the matter about the contradictory affidavits of Imam Din P. W. after the witness is examined by him at the trial.

4. It was contended that it was a blind murder and the petitioners have been roped in on account of enmity of a previous murder. It was next contended that if Faiz petitioner was carrying on with the sister of his co- accused they would then be against each other and not join bands for committing the crime. Moreover, the accused, who go at night time want, to conceal their identity; under these circumstances would one of them raise a lalkara is a matter which requires further inquiry. There is force in this submission. I, therefore, confirm the bail allowed to Faiz Ahmad petitioner. In so far as Nasir Ahmad petitioner is concerned, since he is said to have given the fatal blow which is supported by all the eye‑witnesses in their statements recorded under section 164, Cr. P. C., f, therefore, do not consider it a fit case for bail to him. His petition is dismissed.