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Criminal Bail Application No. 227 of 1984, decided on 19th April, 1984.

(a) Criminal Procedure Code (V of 1898)--

-- Ss. 497 & 498-Penal Code (XLV of 1860), Ss. 307/34 & 504 Offence not compoundable-Parties having compromised, held, hardly a ground for release of accused on bail-Circumstance of compromise and request of bail, held further, indicates a desire on part of accused to tamper with evidence, which by itself, was a good ground to decline relief in shape of grant of bail.

(b) Penal Code (XLV of 1860).-

-- Ss. 307/34 & 504 - Criminal Procedure Code (V of 1898),

S. 497/498-Evidence Act (I of 1872), S. 1-Grant of bail mainly on ground that complainant and some other witnesses bad made affidavits, exonerating accused-Tendency in Session Courts to take notice of and rely on ex parte affidavits of prosecution witnesses stating that accused was not guilty and minimising extent of guilt of accused, disapproved-Such affidavits having not sworn in courts, but before some Oath Commissioners, contents thereof were not evidence within meaning of Evidence Act, 1872-Affidavits in question would normally be of no value, unless there were very strong circumstances to indicate that police investigation was dishonest, and Investigating Officer had attributed making of some allegations against accused by witness, who had, in fact not made those allegations-Duty of courts before such affidavits relied upon for purpose of granting bail, indicated in detail. -[Affidavit].

There is a 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.

Ghulam Akbar G. H. Qureshi for Appellant.

Muhammad Ibrahim Memon, Addl. A.-G. for the State.

Date of hearing : 19th April, 1984.

The two applicants are standing trial before the Court of Session at Nawabshah on charges under sections 307 and 504, P. P. C. read with section 34, P. P. C. The incident occurred on 31st July, 1983, and no evidence has yet been recorded. Mr. Muhammad Ibrahim Memon, however, states that the applicants had obtained bail before arrest from the Sessions Judge, Nawabshab, and thereafter they did not appear, so that, in the charge-sheet, they were shown as absconders,

I have seen the medical certificate, which shows that there were two injured persons. Out of them, Dur Muhammad received fourteen incised wounds on various parts of his body and the length of some of the injuries was 18 c. m. and 9 c. m. The second injured, Muhammad Sahib, had six injuries, three out of whom were incised. It would thus appear that hatchets and blunt weapons were used to cause as many as twenty-one injuries to the complainant party. There is also a background of enmity.

The learned Advocate has contended that the parties have compromised. This is hardly a ground for release on bail, because the offence is not compoundable. On the ether hand, this circumstance indicates a desire on , the part of the accused to tamper with evidence. This, by itself, is a good ground to decline relief in the shape of grant of bail. The learned Advocate also contends that there is a counter-case. Even this circumstance has not impressed me, because, while the case against the present applicant was lodged at Moro Police Station, the alleged counter-case has been registered at Bhan Saeedabad Police Station. The distance between Bhan and Moro is about twenty-five to thirty miles. Another incident occurred within the jurisdiction of Bhan Police Station. It may have been a separate and independent case having no nexus whatsoever with the case in which the applicants are accused. It may also be pointed out that, as between Moro and Bhan, the river Indus flows, which must be in very high tide in July, when the incident occurred.