P L D 2003 Karachi 125 (PLP)

I have given my anxious consideration to the arguments advanced by the respective parties and perused the record. Bail application was moved in the trial Court when complainant and eye-witnesses had sworn the 'affidavits wherein they deviated from the statements made by them in the F.T.R. and the 161, Cr.P.C. statements respectively, and had exonerated applicants/accused of the aforesaid offence. The Mashirs of the recovery of the crime weapon inspection of place of incident and empties, dead body etc. had also filed their affidavits wherein they had dented to have witnessed the recovery of crime weapon, empties, inspection of the place of incident and submitted that their signatures were obtained on blank papers. The trial Court dismissed the bail application on the grounds; firstly, that it was a murder case and secondly, that if the affidavits of the complainant and the prosecution witnesses were taken into consideration then it would have amounted to ultimately deciding the case. The learned counsel for the applicants advanced same arguments before me as were advanced by him before the trial Court, that is, to say that in view of swearing of the affidavits by the complainant and prosecution witnesses wherein they have deviated from their previous stand and had exonerated the applicants/accused by stating that they had not seen the assailant/person who had fired gun shots and committed murder of deceased Ast. Satbai, while the Mashirs of the recovery of crime weapon and crime empties have also disowned the recovery, two versions of the incident have come on record, and the matter requires further enquiry for the purpose of establishing as to which one of the two versions is more reliable and trustworthy. He further submitted that the earlier version of the complainant and the prosecution witnesses is in the form of the F.I.R. 161, Cr.P.C statements and the Mashimamas while the second version according to which the applicants/accused have not been involved with the commission of the above crime, are on oath and the same are on a higher footing than the previous version of the complainant and the prosecution witnesses. In support of his contention that where affidavits are filed by the complainant and the prosecution witnesses resiling from the prosecution case and exonerating the accused, the matter becomes one for further enquiry for prima facie connecting the accused with the offence charged with thereby entitling him to be released on bail as there could be no reasonable ground to believe the accused guilty of an offence punishable with death, imprisonment for life and for 10 years. For the above proposition, he placed reliance on the cases of (1) Allah Bux v. Nazar Hussain Shah and another 1979 SCMR 13 7, (2) Rehmat Ali and another v. The State 1979 SCMR 30; (3) Muhammad Hayat and others v. The State 1998 SCMR 474, (4) Muhammad Nawaz alias Najja v. The State 1991 SCMR 111, (5) Muhammad Nawaz and others v. The State 1989 PCr.LJ 1126 and (6) Ali Gul and 3 others v. The State 1986 PCr.LJ

433. Mr. $her Muhammad Shar, A.A.-G. vehemently opposed the bail application and submitted that the trial Court had tightly refused to take into consideration the affidavits filed by the complainant and the prosecution witnesses and dismissal of the bail application was proper and correct. He further submitted that filing of the affidavits was not a sufficient ground for disproving or doubting the prosecution case and in support of his contention he placed reliance on the observations of the Honourable Supreme Court, in the case of Naseer Ahmed v The State P L D 1997 SC 347 wherein the Honourable Supreme Court deprecated the trend of the eye-witnesses taking a somersault. giving statements and filing affidavits containing statements which were totally different from prosecution case, with the intention of creating doubt in the prosecution case to enable the accused to get the bail. I have considered the arguments advanced by the learned counsel for the parties and have perused the material on record as well as the case-law relied upon by both the learned counsel for the parties. In the case of Muhammad Hayat and others v. The State (1989 SCMR 474), the Honourable Supreme Court repelled the plea raised on behalf of prosecution that the accused persons by obtaining affidavits of eye-witnesses, wherein they had resiled from their previous statements and stated that the case registered against the accused was false, had tried to tamper with the record as the witnesses who -had sworn such affidavits had not come forward to disown their affidavits or to state that the same were obtained by force or coercion. In the case of Muhammad Nawaz and others v. The State (1989 PCr.LJ 1126) a learned Single Judge of this Court while considering the effect of filing of affidavits by the complainant/prosecution witnesses resiling from their previous statements had taken into consideration the cases of Rehmat Alt and others v. The State (1997 SCMR 30) and Allah Bux v. Nazar Hussain Shah (1997 SCMR 137) and observed as under: "View expressed by Supreme Court of Pakistan in cases mentioned above that in case in which eye-witnesses file affidavits disowning prosecution then that case requires further enquiry conflict between two sets of statements." The learned Single Judge further observe as In the instant case all the three eye-witnesses w o are closely related to the deceased have sworn affidavits which tend to exonerate applicants. Previously they had named applicants and absconding co-accused specifically in their various statements but now they say in the affidavits that faces of culprits were muffled and they had not given out the names. By giving such affidavits whole ocular testimony of prosecution is exposed to doubt It will also be appropriate to reproduce the relevant portion from the order of the learned Single Judge of this Court in the case of Ali Gul and 3 others v. The State 1986 PCr.LJ 433 as under: In the instant 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 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 amount to, the satisfaction of the trial Court. The observations made by the Honourable Supreme Court in -the case of Naseer Ahmed v. The State PLD 1997 SC 347 do not support the contention of Mr. Sher Muhammad Shar, A.A.-G. that the affidavits filed by the complainant/prosecution witnesses resiling from their earlier statements and exonerating the accused or declaring the prosecution case to be false could not be and should not be considered at the stage of the bail as they contained false statements of disowning and resiling from the prosecution case and exonerating the accused named therein either on account of force and coercion of the accused persons or on account of settlement of the dispute between the accused and the complainant. After going through the order of the Honourable Supreme Court in the case of Naseer Ahmed v. The State (supra), I am unable to agree with the contention of Mr. Sher Muhammad Shar, A.A.-G that the Honourable Supreme Court had made any observation whereby it had declared that the affidavits filed by the complainant and prosecution witnesses at the stage of bail resiling from their previous statements and exonerating the accused could not or should not be considered for the purpose of granting bail. What the Honourable Supreme Court has expressed and observed is that the Courts should be very careful and on their guard before taking such affidavits into consideration, they should satisfy themselves that the above turn made by some of the eye-witnesses was not on account of coercion, threat or by way of winning over tactics applied by the accused and/or his relatives merely with the object of bringing another version of the case with the intention of creating doubt in the prosecution case. Honourable Supreme Court further observed that in such situation each case was to be examined and decided on its own merits. It may also be pointed out that in the case before the Honourable Supreme Court, all the witnesses had not submitted their affidavits resiling from their previous statements and only two out of the six witnesses had tiled their affidavits while remaining four eye-witnesses did not tile their affidavits. Upon the above discussion, I am satisfied that in view of the affidavits filed by the complainant and the prosecution eye-witnesses as well the Mashir or recovery of crime weapon and empties resiling from their previous various statements and exonerating the applicants/accused a reasonable doubt has been created with regard to the guilt of the applicants/accused and the case requires further enquiry for connecting the f, accused with the above offence. This can only be done after a proper enquiry and determination as to which of the two versions supplied by the complainant and the prosecution witnesses is more reliable and trustworthy. At present there are no reasonable grounds to believe the applicants/accused to be guilty of an offence punishable with death, imprisonment for life or 10 years, so as to deprive them of the benefit of the bail in view of the embargo contained under section 497, Cr.P.C. Accordingly, bail is allowed to the applicants on furnishing surety in the sum of Rs.2,00,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court. N.H.Q/A-294/K Bail allowed.