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THE STATE-Respondent

Criminal Miscellaneous No. 264/B of 1985, decided on 3rd February, 1985.

-- Ss. 74, 498, 497, 526 & 539-A-Penal Code (XLV of 1860), S. 377/511-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979),. S. 12-Eye-witnesses taking contradictory stands in their affidavits and statements under section 161. Cr. P. C.-Apart from such fact, held, affidavits did not constitute legal evidence, being not covered by any provisions of Ss. 74, 526 & 539-A, Cr. P. C. Accused, therefore, could not be allowed to take benefit of such affidavits.- [Affidavits].

Nazir Ahmad and another v. The State P L D 1977 Lah. 1261 ref.

-- Ss. 497 & 498 --Penal Code (XLV of 1860), S. 377/511-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12-Bail-Two eye-witnesses, even if, kept out of consideration, prosecution case still supported by complainant and three other eyewitnesses-Statements of such eye-witnesses recorded soon after occurrence-Bail before arrest declined in circumstances.

-- Ss. 497 & 498-Penal Code (XLV of 1860), S. 377/511-Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S. 12Bail before arrest-Attempt to commit unnatural offence-Allegation supported by complainant and other eye-witnesses who had no previous enmity with accused-Accused prima facie appearing to be connected with offence alleged against him-Case of accused, held, not a fit case for grant of bail before arrest.

Ch. Muhammad Yaqoob Sidhoo for Petitioner.

Altaf Muhammad Khan for the State.

Petitioner who is accused of an offence under section 377/511, P. P. C. registered with Police Station Krishan Nagar, Lahore vide F. I. R. No. 390/84, dated 6-12-1984 has filed this petition for pre-arrest bail.

2. Facts, briefly stated, are that the petitioner is a student of Fourth Year class in Government College Lahore and resides in New Hostel. Muhammad Ayab complainant is a First Year student of -Islamia College, Civil Lines, Lahore and resides in Crescent Hostel. On 6-12-1984, at about 9-30 p.m. petitioner brought the complainant to his Room No. 250 in the New Hostel on some pretext, locked the room from inside and asked him to put off his Shalwar'. On the complainant's refusal to do so, petitioner used physical violence and forcibly untied his Shalwar' with an intention to commit un-natural offence with him. On the alarm raised by the complainant, his fellow students Sujjah and Abdul Hafeez came into the room and rescued him from the clutches of the petitioner. Complainant was medically examined on 7-12-1984. It was found that he was bleeding from nose and there was contusion on his neck and pain all over the body.

3. Petitioner approached the learned Additional Sessions Judge, Lahore for pre-arrest bail but his application was rejected on 17-12-1984. Petitioner then .filed an application for pre-arrest bail (Cr. Misc. 3585/B/84) in this Court and he was allowed interim bail on 26-12-1984. He did not appear on 19-1-.1985 and consequently his application was dismissed. Petitioner has now moved the present petition (Cr. M. No. 264/B/85). He has explained that his absence on 19-1-1985 was on account of the fact that he had no information regarding the date of hearing. Notice was issued to the State for today and interim bail was allowed to the petitioner by order dated 3-2-1985.

4. I have heard the learned counsel for the petitioner and the State as also Arshad Hussain, A. S. I. and have gone through the record.

5. It is submitted by the learned counsel for the petitioner that Sujjah Hussain and Abdul Hafeez, the only two eye-witnesses named in the F. I. R. have sworn affidavits to the effect that they were not present at the time of occurrence nor did they see any occurrence. Abdul Hafeez had sworn the affidavit on 9.12-1984 and it was produced before the learned Additional Sessions Judge who observed that apart from Abdul Hafeez, there were other eye-witnesses, namely, Sujjah Hussain, Ejaz Ahmad, Ahmad Khan and Hafiz Nisar on the basis of whose statements "petitioner prima facie appears to be connected with the alleged offence". Petitioner has appended with this petition affidavit of Abdul Hafeez as also of Sujah Hussain. Affidavit of Sujjah Hussain is dated 17-1-1985. Investigating Officer present in Court states that these two 'eye-witnesses in their statements under section 161, Cr. P. C. recorded on 6-12-1984 had fully supported the prosecution case. He further states that he has confronted these two witnesses with their previous statements and they have explained that they made the statements under pressure. It is, however, significant that in the affidavits sworn by* them, it has not been stated that their earlier statements were made under pressure. Apart from the fact that these witnesses have taken contradictory positions, the affidavits in question do not constitute legal evidence as they are not covered by any of the provisions of sections 74, 526 and 539-A, Cr. P. C. whereunder a fact . may be got proved through an affidavit. It was so held in Nazir Ahmad and another v. The State (P L D 1977 Lah. 1261). Moreover, the affidavits in question are also' indicative of an attempt to tamper with the prosecution evidence. For all these reasons, petitioner cannot be allowed to take benefit of these affidavits. However, even if these two eye-witnesses are kept out of consideration, prosecution case is still supported by the complainant and three other eye-witnesses namely Ejaz Ahmad, Ahmad Khan and Hafiz B Nisar. Investigating Officer states that the statements of these three eye-witnesses under section 161, Cr. P. C. were recorded on 7-12-1984 i.e. soon after the occurrence.