1986 P Cr (PLP)

It appears the trial Court was moved for bail twice by applicants but each time their request was turned down. Their application for bail to this Court also failed. However, it was left open to them to repeat application on fresh grounds. Accordingly they once again approached the trial Court for bail, this time on the ground that the parties had patched up and consequently all the eye‑witnesses including complainant had ‑filed their affidavits deviating froth their earlier statements. However relying upon Allah Ditto and another v. The State A P L D 1984 Kar. 223, the First Additional Sessions Judge Nawabshah dismissed the applicants plea for bail vide impugned order dated 17‑12‑1984. In the above reported case one of the arguments advanced for bail was that the co‑accused was granted bail on the basis of the affidavits of complainant and some other witnesses exhonerating the said co‑accused as well as the applicant. While dismissing the bail application, the learned Chief Justice made the following observations:‑- "I have recently come across s growing tendency in the Sessions Courts to take notice of and rely on ex parte affidavits of prosecution witnesses, stating that the accused were not guilty and minimising the extent of their guilt. These affidavits are not sworn in the Courts, but before some Oath Commissioners and the contents thereof are not evidence within the meaning of .the Evidence Act. The deponent's averments are not tested by Courts and normally the Courts do not even compare the contents of earlier statements of these witnesses with the statements made in affidavits, and such affidavits would normally be of no value, unless there are very strong circumstances to indicate that the police investigation was‑dishonest, and the Investigating Officer has attributed the making of some allegations against the accused by a witness, who has, in fact, not made those allegations. Before such affidavits are considered and relied upon for the purpose of granting bail to persons accused of capital charges, or, heinous offences, the Court should look round and find out which out of the two versions made by a particular witness is true. Even otherwise, it is established principle of law that, when a person speaks in two tones, a duty is cast upon the Court to determine in which tone he is speaking the truth. It is only after such exercise is undertaken by the trial Court that the trial Court will be justified in acting on the ex parte affidavits of persons for the purpose of grant of bail. Instances also are not unknown when fake documents have been produced before the Court, and the complainants then create a hue and cry, stating that they have not made the affidavits at all, and such documents, as have been placed before the Court, are fake, or forged. To say the least, the evidence furnished by such affidavits at such initial stage of the case has to be looked upon, prima facie, with suspicion, and the Court should be slow to act on such affidavits, unless the Court is satisfied that interest of justice will be advanced by acting on the same for the reason that the contents of the affidavits are true and reliable and should be accepted in preference to the earlier statement of that person made during investigation." In reply to the above authority the learned counsel for the applicants invited my attention to two Supreme Court authorities: namely, (1) Rehmat Ali and another v. The State 1979 S C M R 30, (2) Allah Bakhsh v. Nazar Hussain Shah and others 1979 S C M R

137. In the first case of Rehmat Ali it was held:‑ "But without commenting as to what weight if any, can and ought to be attached to the aforementioned statement of the complainant and the affidavits relied upon by the petitioners in support of plea for bail, we are inclined to think that at this stage at least it is difficult to say if the petitioners have committed the offence, more particularly when the complainant himself seem at the moment to disown the prosecution case in the circumstances of this case we think 'that the case of the petitioners is one of 'further enquiry' under section 297(2), Cr.P.C." In the second case of Allah Bux, the Supreme Court was pleaded to observe as under:‑ "The two affidavits filed by the alleged eye‑witnesses exculpating the respondent herein from the commission of the crime were thereon the record of the case forming the necessary material which had to be considered by the learned Judge in reaching the conclusions whether the respondent could be said to have been connected with the offence. This is indeed what the learned Judge in the High Court has done to which no exception can be taken. We, therefore, respectfully agree with his conclusion that this was a case for further inquiry under section 497 (2), Cr.P.C. and consequently it was not a case in which bail could be refused to the respondent." The above Supreme Court authorities were followed by this Court in the recent unreported case of Abdul Bari v. The, State (Criminal Rail Application No. 948/84) wherein the learned Single Judge took the view that the earlier case of Allah Ditto of this Court was distinguishable inasmuch as that in the said case it was held that where the identity of the witnesses swearing affidavits is not established and the affidavits are Sworn before Oath Commissioner, then by way of abundant caution a Magistrate should not act upon such affidavits. At this stage the learned Assistant Advocate‑General cited the case of Sanaullah and 3 others v. The State 1983 S C M R 15 wherein the affidavit filed by only witness was ignored because the Court took the view that even if on the basis of the affidavit his evidence was excluded there was still complainant who would support the prosecution case. In view of the above Supreme Court authorities of Rehmat Ali and Allah Bakhsh which have also been followed in the unreported case of Abdul Bari of this Court, the affidavits of the witnesses that are filed for the purpose of bail are not without legal status and hence cannot be ignored. It seems the said authorities of the Supreme Court were not brought to the notice of the learned Chief Justice when he was seized of the above‑reported case of Allah Ditto. However, I am in complete agreement with the learned Chief Justice that such affidavits are not regarded as evidence under the Evidence Act and cannot be acted upon unless the Court is satisfied that they are true and reliable. Thus even in 'the case of Allah Ditto, the use of the affidavits has not been altogether shut out. But before they are taken into consideration, the Court using the same must be satisfied about the identity of the deponents that they are the same persons who figure as witnesses in the case in which the affidavits are filed. On being so satisfied, the Court cannot ignore the affidavits as has been ruled by the Supreme Court in the above‑reported cases. Since the affidavits contain statements of the witnesses which are deviations from their earlier statements, particularly when the later statements i.e. affidavits are on oath, the f. Court perhaps will have no option but to hold that in view of the conflict between the two sets of statements it is yet to be determined as to which of the statements are true and until then the case of the accused will call for further enquiry. In the instance case all the eye‑witnesses including the complainant have filed their affidavits in which they have not implicated the applicants. The affidavits have been sworn by them before C.O.C. of the trial Court and not before Oath Commissioner. Moreover, the witnesses swearing the affidavits were identified by the. Advocate before the oath‑giving authority. In these circumstances their identity seems to be beyond doubt. Since the complainant on whose motion the case was registered has himself disowned the prosecution case, to borrow the observations of the Supreme Court from the above‑reported case of Rehmat Ali, the case of the applicants certainly calls for further enquiry and, therefore, they are admitted to bail in the sum of Rs.25,000 each and P.R. of the same amounts the satisfaction of the trial Court. M. Y. H. Bail granted.