1998 P Cr (PLP)

Ch. Zamurrad Hussain for Respondents. Syed Qaiser Hussain Zahidi for the State. Since both the above captioned petitions arise out of the same F.I.R., therefore, those are intended to be disposed of by this common order.

2. A case under section 302, P.P.C. was registered against the respondents of both the petitions vide F.I.R. No.305 dated 6-8-1996 at Police Station Wah. All the three respondents were granted bails vide two different orders recorded on 23-12-1996 and 28-1-1997 passed by Mr. Muhammad Mujahid Hussain, the then learned Additional Sessions Judge. Rawalpindi on the ground that being a blind murder, the witnesses namely Muhammad Hafeez, Muhammad Azhar, Sultan Mahmood, Muhammad Azeem, Amjad Ali and Sajid Iqbal had submitted affidavits thereby disowning their statements linking the accused/respondents with the occurrence. In this respect, it may be pointed out that Muhammad Hafeez and Muhammad Azhar had last seen the deceased Shahid Saeed with the accused but they disowned that fact in their affidavits placed on record. The accused/respondents had allegedly made extra-judicial confession before Sultan Mahmood and Muhammad Azam P.Ws. but they, too, tendered affidavits disowning the prosecution story. The recovery of weapon of offence i.e., Chhuri was effect from Abdul Malik accused/respondent in the presence of Amjad Ali and Sajid Iqbal but both of them denied such recovery in their affidavits. The other two co-accused namely Kashif Khan and Shakeel were shown empty handed even according to the extra-judicial confession. The learned trial Judge while allowing bails held that in view of the affidavits tendered by the aforesaid witnesses it had become a case of further enquiry.

3. Learned counsel for the petitioner has challenged the impugned orders on the ground that no reliance could be placed on affidavits of the witnesses at bail stage. Reliance was placed on PLD 1990 SC 83 and PLD 1997 SC 347 in support of the proposition.

4. Learned counsel for the respondents, however, submitted that though the affidavits are not a good evidence but prima facie these would call for further enquiry, particularly when there is no eye-witness in the case and the murder was an unseen occurrence. The testimony of last seen evidence, extra-judicial confession and recovery of Chhuri from one of the respondents is of very weak nature and required corroboration from a source of unimpeachable character. However, no such evidence was relied upon to corroborate the aforesaid witnesses. It was, therefore, submitted that the orders granting bails to the respondents were not bad in the eye of law nor would require to be reviewed.

5. Learned State Counsel also contended that each case has to be seen on its own merits after taking into account the attending circumstances of the occurrence.

6. I have considered the foregoing submissions and find that though the affidavits being a weak evidence should not be readily accepted at bail stage but each case has to be decided on its own facts and circumstances. In the instant case, the unfortunate deceased was last seen by two witnesses namely Muhammad Hafeez and Azhar but both of them did not support the persecution version as according to them their statements under section 161, Cr. P.C. were got recorded by the police of its own. Likewise, the extra-judicial confession being a weak type of evidence had become still weaker after the witnesses before whom such confessions was made tendered their affidavits disowning the prosecution version. Likewise, the recovery of Chhuri became a matter of further enquiry after the recovery witnesses resiled from prosecution version through their affidavits. Under such circumstances, the discretion exercised by the learned lower Court does not appear to be arbitrary or fanciful so as to call or interference by this Court, to cancel the bails already granted to the respondents which have not been misused in any manner. So, without entering into the deeper appreciation of the merits of the case, it will be just and proper to say that there is no convincing ground for re-calling the orders, whereby, the respondents in both the petitions were admitted to bails.

7. The petitions are accordingly dismissed. N.H.Q./M-466/L Petition dismissed.