DINU ALIAS DIN MUHAMMAD Versus THE STATE

ORDER

1. Applicant Dino who is facing trial in two cases, one under section 17(3) of the Hudood Ordinance, 1979 and the other under sections 307, 353, 147, 148, 149, P.P.C. and 13(d) of Arms 0'rdinance alongwith nine others has applied for grant of bail in both the cases on the ground that all the four eye‑witnesses including the complainant have exonerated him from the allegations made against him in the F.I.Rs. in these cases, by filing their affidavits sworn before the learned Additional Sessions Judge, Nawabshah. The learned counsel for the State opposes grant of bail to the applicant and contends that these eye‑witnesses had earlier filed affidavits also before learned Additional Sessions Judge, Nawabshah, in connection with another bail application filed on behalf of other accused in the case which they clearly implicated the present applicant and as such these affidavits which were subsequently sworn by these witnesses were rightly kept out of consideration by the learned Sessions Judge. I have seen the two sets of affidavits filed by the eye‑witness Bahadur son of Sher Khan, Saifal, Lakhadino and Panju in the Sessions Case Nos. 427 and 428 of 1986. In their affidavits, dated 16‑2‑1987 which were sworn before an Oath Commissioner in connection with the Bail Application of Missri and others the above named witness had stated that out of ten persons involved in the above two cases they could only identify Imam Bux, Gul Hassan and Dino (present petitioner). When the bail application of the present applicant was filed in the above cases all these four persons again filed their affidavits in which they stated that the present applicant Dino is innocent and has been falsely involved in the case and that they never identified him except the other two Gul Hassan and Imam Bux. These affidavits were sworn on 15‑3‑1987, almost about one month after their previous affidavit.

2. Mr. Syed Riaz Ahmed for the State opposes grant of bail to the present applicant and contends that in view of the categorical statement of these witnesses in the earlier affidavits dated 16‑2‑1987 there is prima facie case against him and their subsequent statement in the affidavit, dated 16‑3‑1987 may be ignored totally. Reliance in this connection has been placed by the learned State counsel on the case of Muhammad Sharif and another v. State N L R 1980 S C J 130. In that case the learned Judges of the Supreme Court refused to interfere with the order of High Court declining to grant bail to the petitioner in a pending case on the basis of affidavit of witnesses on the ground that although the witnesses have filed their affidavit stating that the petitioners were innocent but the other material before the Court fully justify the conclusion that these petitioners were prima facie involved in the case. A careful reading of that case will show that the petitioners in the above case were apprehended by the police on the spot and it was in these circumstances that the Supreme Court observed that the refusal by the High Court to place reliance on the affidavits of the witnesses was justified.

3. The learned counsel for the petitioner on the other hand relied on the case of Ali Gul v . State 1986 P Cr. L J 433 in which a learned Single Judge of this Court relying on the principles laid down in Rehmat Ali v. State 1979 S C M R 136 and Allah Bux v. Nazar Hussain Shah 1979 S C M R 137 held that where the affidavits sworn by the witnesses contained statement which is a deviation from their earlier statement and particularly when the latter statements are on oath the Court 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 two statement are correct and until then the case of the accused will call for further enquiry. It will be advantageous at this stage to refer to the two Supreme Court cases relied by the learned Single Judge in Ali Gulls case. The first case is reported as Rehmat Ali and another 1979 S C M R 30 in that case the learned Judges of the Supreme Court without commenting as to the weight which could be attached to the complainant's statement under section 164, Cr.P.C. and the affidavits filed in favour of the accused held that in view, of the statement contained in the affidavit filed before the Court exonerating the petitioner from offence the case call for further enquiry and admitted the petitioner in that case to bail. Similarly in the case reported as Allah Bux v. Nazar Hussain Shah 1979 S C M R 137 it was held that the order of the High Court granting bail to respondents on the basis of the affidavits filed before the High Court by the witnesses exonerating the respondent in the case was unexceptionable. The learned Judges of Supreme Court in the above cases while agreeing with the High Court held that in such circumstances the case of the accused called for further enquiry under section 497(2) Cr.P.C. In addition to the above cases, Mr. Qazi Azizullah learned counsel for the petitioner has also drawn my attention to an unreported decision by another learned Single Judge of this Court in Criminal Bail Application No. 279 of 1986 decided on 20‑11‑1936 in which the learned Judge relying on the principles laid down by the Supreme Court in Rehmat Ali's and Ali Bux's cases held that where the identity of the person who had sworn the affidavit exonerating the accused has been duly established before the Court, such affidavit cannot be ruled out of consideration for granting bail as in such circumstances the case of such accused would call for further enquiry within the meaning of section 497(2), Cr.P.C. In the light of the above discussion I am of the view that on the basis of the affidavits of four eye‑witnesses in the case who have completely given a go‑bye to the prosecution case, it is rightly contended by the learned counsel for the petitioner that the case of present applicant calls for further enquiry. I accordingly admit the applicant to bail in both the cases namely S.C. No. 427 of 1986 (Criminal No. 73/86) P.S. Qazi Ahmed and S.C. No. 428 of 1986 (Criminal No. 4/86) P.S. Lakhat in the sum of Rs.50,000 in each case with one surety and P.R. in the like amount to the satisfaction of the trial Judge.

4. S.A./D‑18/K Bail granted.