1993 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)

S. 497

Emigration Ordinance (XVIII of 1979), S.22(b)

Bail, grant of

Order of Trial Court dismissing the bail application of accused did not show that the prosecution witness exonerating the accused by affidavits had actually appeared before the Court at the time of hearing of bail application

Trial Court was, therefore, directed to reconsider the bail application of the accused after being satisfied in regard to the affidavits sworn by the prosecution witnesses in their presence

Bail application was disposed of accordingly: --[Affidavit ]. Raja Sikander Khan Yasin for Applicant. Shoukat H. Zubedi, A.A.-G. for the State. The applicant is facing charges before the learned trial Court under section 22(b) of Emigration Ordinance, 1979. The allegations against the applicant, briefly, are that he alongwith the co-accused had promised P.Ws. Abdul Rasheed Khan, Muhammad Yousuf Qureshi and Abdul Karim to send them abroad for employment and for such purpose had received an amount of Rs.20,000 from each of the said P.Ws.

2. It may be pointed out that after the bail application of the applicant was rejected by the learned trial Court vide its order, dated 2-1-1992 the said P.Ws. swore affidavits stating that the charges against the accused were not true as they had neither made any promise to them as alleged nor they had received any amount from them in that connection at Karachi. Such affidavits were sworn by the P.Ws. not before any authorized officer of the Court but the same were sworn before the Oath Commissioner at Karachi.

3. The learned trial Judge was, however, not impressed and he dismissed the second bail application filed on behalf of the applicant alongwith which the said affidavits were also filed by holding that, since according to the said affidavits, the P.Ws. had denied to have made any payment to the applicant at Karachi and had not denied having made any payment at Malaysia and according to the allegations, some of the payments were received by the applicant at Malaysia, the latter had not been fully exonerated by the P.Ws. by filing of such affidavits.

4. The order passed by the learned trial Judge shows that the affidavits, which are identical in nature have not been properly construed by the learned Judge. The P.Ws., no doubt, have stated in para. No.2 that they did not pay any amount to the applicant at Karachi but the said para. is to be read as a whole. In the said paragraph, the witnesses have also stated that neither applicant Syed Zahid Ali nor his brother Shafqat Ali had promised to send them abroad. The effect of the said paragraph, therefore, clearly is that the P.Ws. have deviated from their statements earlier given by them to the police under section 161, Cr.P.C. However, the, main question which requires consideration is, whether the affidavits said to have been sworn by the P.Ws. are authentic since they were sworn before the Oath Commissioner and not before any Officer of the learned trial Court. The Courts have always disapproved filing of such affidavits which have been sworn not before the Court, but before the Oath Commissioners and their authenticity is, consequently, questionable. Although, Mr. Raja Sikander Khan, states that the P.Ws. who had sworn the said affidavits were also present before the Court at the time of the hearing of the bail application but nothing to such effect can be spelt out from the order passed by the learned Judge dated 4-2-1992. Although, I agree with the learned counsel for the applicant that when the main witnesses in the case come forward and swear affidavits not supporting their earlier version recorded by the police under section 161, Cr.P.C., the accused in such case should be released on bail because there would be no likelihood of the accused being convicted in the case but some proof must first be produced before the Court in regard to the authenticity of such affidavits.

5. In the present case, it is not clear from the order passed by the Court dated 4-2-1992 that the P.Ws. had actually appeared before it at the time when the bail application filed by the applicant was heard by the learned trial Court. It would, therefore, be appropriate that the applicant before approaching this Court should re approach the learned trial Court for bail and the P.Ws. who are said to have sworn affidavits in the case should also appear before the learned trial Court and the learned trial Court after being satisfied in regard to the affidavits, may reconsider the request for bail made by the applicant.

6. Under the circumstances enumerated above, this bail application is dismissed. However, it will be open for the applicant to approach this Court again in case his bail application is once again dismissed by the learned trial Court. N.H.Q./Z-210/K????????????????????????????????????????????????????????????????????? Bail application dismissed.