1995 P Cr (PLP)

Art. 163

Oath proceedings

Applicability to criminal cases

Swearing on the Holy Qura'n (oath proceedings) is not applicable in criminal cases. Mst. Bushran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 ref. Sardar Shaukat Ali for Petitioner. Malik Muhammad Aslam for the State. Petitioner Javaid Iqbal through this petition seeks bail after arrest being accused in case F.I.R. 9/95, dated 17-1-1995 registered under section 302, Qisas and Diyat Ordinance with Police Station, Akbari Gate, Lahore.

2. Briefly the allegation against the petitioner is that on 17-1-1995 at about 9-30 a.m. he fired at Roshan Ali deceased hitting him in the abdomen who later on expired in the hospital.

3. Learned counsel for the petitioner contended that undue delay has not been explained which tantamounts that the occurrence is un-witnessed and the petitioner has been falsely involved in this case. Further, contended that the main witness, namely, Syed Al-Abrar of the occurrence has got recorded his statement under section 164, Cr.P.C. before the Magistrate on 26-2-1995 wherein he has not supported the prosecution version. He argued that the other witness Sohbat Khan has sworn affidavit to the effect that he had not seen the occurrence and relied upon case Ghulam Qadir and another v. The State 1984 PCr.LJ 3229 wherein eye-witnesses had sworn affidavits that they had not seen the accused committing crime and particularly none of injury was ascribed to the accused, it was held that the case is one of further inquiry. Further, relied upon cases Muhammad Amin v. The State 1989 MLD 4401 and Muhammad Saeed v. The State 1986 PCr.LJ 785 wherein also all the eye witnesses had sworn affidavits exonerating accused and also appeared before the trial Court, to verify contents of their affidavits, the accused was enlarged on bail.

4. The learned counsel for the State vehemently contended that the petitioner is named in the F.I.R., Sohbat Khan has not been produced in the Court to verify the affidavit and Muhammad Ismail complainant is also eye witness of the occurrence besides Syed Al-Abrar and Sohbat Khan who have sworn affidavits.

5. I have heard the arguments of learned counsel for the parties and have perused the record with their able assistance.

6. Admittedly the petitioner is named in the F.I.R. and specific role has been attributed to him and according to F.I.R. the occurrence was witnessed by Muhammad Ismail complainant besides the other two witnesses. The contention of learned counsel for the petitioner that according to site plan, it is evident that the complainant of the F.I.R. was not present at the spot is devoid of merits as it cannot be subjected a detailed scrutiny at bail stage as was held in case Shahzar Khan v. The State 1992 PCr.LJ

394. The facts of the cases relied upon by the learned counsel for the petitioner are distinguishable from the facts of the present case. The fatal injury caused to the deceased is attributed to the petitioner. Mere filing of affidavits of certain persons without any corroborative evidence is not a sufficient factor to shake the veracity of the story put by the complainant, duly supported by the eye-witnesses. In case of Nazir Ahmad v. The State PLD 1977 Lah. 1261 it was held that there are only three sections in the Code of Criminal Procedure, that is, sections 74, 526 and 539-A, according to which a fact may be got proved by an affidavit. In follows that an affidavit not covered by these sections is not legal evidence. The same proposition came under consideration before the Supreme Court and their Lordships in case of Mst. Bushran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC 83 observed that even under Article 163 of the Qanun-e-Shahadat, procedure of swearing on Holy. Qur'an (oath proceedings) is not applicable in criminal cases. Furthermore, there is nothing on record to support the plea of Syed Al-Abrar who has got recorded his statement under section 164, Cr.P.C. The recovery has also been effected from the petitioner and he has finally been challaned. There is no enmity or malice of the complainant against the petitioner to involve him in such a heinous crime.

7. In view of what has been discussed above, I am not minded to grant bail to the petitioner and to interfere with the order passed by the learned Additional Sessions Judge, Lahore. The bail application is hereby dismissed. N.H.Q./J-102/L Bail refused.