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Criminal Bail Application No.1869 of 1986, decided on 4th January, 1987.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 307‑‑Bail, grant of‑‑Value of affidavits sworn by Witnesses‑‑Case, whether of further inquiry‑‑Accused allegedly inflicting knife injuries in chests of two ladies‑‑Injuries found cavity deep‑‑Medical report supporting statements of witnesses made before Police‑‑Witnesses swearing affidavits about Police having cooked up story‑‑Affidavits sworn after seven months‑‑Identity of witnesses not conclusively established‑‑Trial Court expressing doubts over authenticity of affidavits‑‑Two cavity deep injuries received by two ladies on their chests, held, could not be caused otherwise than by deliberate act, great doubt existed about truth of statements in affidavits made after seven months of occurrence and to determine whether trial of accused would result in conviction or not would be premature at bail stage‑‑Bail refused in circumstances.

Ali Gul and 3 others v. The State 1986 P Cr. L J 433; Rehmat Ali and another v. The State 1979 S C M R 30; Allah Bakhsh v. Nazar Hussain Shah 1979 S C M R 137 and Allahdito and another v. The State P L D 1984 Kar. 223 ref.

Rashid Akhtar Qureshi for Applicant.

Wajihuddin Ahmed, Advocate‑General for the State.

The applicant stands charged for committing offence under section 307, P.P.C. The bail application moved by him earlier was dismissed by order dated 25‑6‑1986. Thereafter, it is stated, that the main witnesses in the case namely, Naeem Hasnain, the complainant, Mst. Abida Jamal and Mst. Shahida Khatoon have sworn affidavit before an Oath Commissioner to show that the police had cooked up a false story against the applicant. According to the statements of these witnesses made to the police, knife injuries had been inflicted by the applicant on Mst. Abida Jamal and Shahida Khatoon. The former received incised wound, cavity deep, on the left side of her chest with sharp‑edged weapon and the latter received an incised wound cavity deep, on the right side of her chest. Mst. Shahida Khatoon also received an incised wound, skin deep, on her right palm and thumb. The statements given by the witnesses are also supported by the medical report. However, the eye‑witnesses in their affidavits have resiled from their earlier statements by stating that some struggle took place between the applicant and P.W. Naeem Hasnain in the house of the latter, on which P.Ws. Abida and Shahida Khatoon intervened and in the process received injuries.

The contention of Mr. Rashid Akhtar ,Qureshi learned counsel for the applicant is that in view of the affidavits now sworn by the main witnesses in the case, there are no reasonable grounds to believe that the applicant is guilty of the offence with which he has been charged and there is no likelihood of his conviction at the conclusion of the trial, and consequently, he should be enlarged on bail. Reliance has been placed on precedents. In Ali Gul and 3 others v. The State 1986 P Cr. L J 453 it was held that where affidavits were sworn by witnesses disowing prosecution case and resiling from their earlier statements, there was conflict between two sets of statements which called for further inquiry to know as to which set of statements was true and consequently bail was granted to the accused. However, it was further held that such affidavits could not be regarded as evidence under Evidence Act, 1872 and the same could not be acted upon unless Court was satisfied that they were true and reliable. Reliance in this case was placed on two cases decided by the Supreme Court and reported as Rehmat Ali and another v. The State 1979 S C M R 30 and Allah Bakhsh v. Nazar Hussain Shah 1979 S C M R 137. In the first case it was held by the Supreme Court as under:‑---

"But without commenting as to what weight, if any, can and ought to be attached to the aforementioned statement of the complainant and the affidavits relied upon by the petitioners in support of his plea for bail, we are inclined to think that at this stage at least it is difficult to say if the petitioners have committed the offence, more particularly when the complainant himself seems at the moment to disown the prosecution case."

Consequently bail was granted to the accused by the Supreme Court.

In the second case, the order of the High Court granting bail to the accused was upheld by the Supreme Court. Similar views were also expressed in two unreported cases, namely, Abdul Bari son of Abdul Karim v The State Criminal Bail Application No. 948 of 1984 and Muhammad Shahid son of Rahim Bux v. The State Criminal Bail Application No. 533 of 1968. However, learned Advocate‑General has placed reliance on another case of this Court reported as Allahdito and another v. The State P L D 1984 Kar. 223 wherein Abdul Hayee Kureshi, Acting C.J. (as he then was) held that 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 would be advanced by acting on the same and the contents of the affidavits are true and reliable and should be accepted in preference to the earlier statements of the witnesses made during investigation. It was also observed in the same judgment that mere fact that the parties had compromised a non‑compoundable offence could hardly be a reason for grant of bail to the accused as such circumstance on the contrary would indicate the desire on the part of the accused to tamper with evidence which by itself was a good ground for declining relief in the shape of grant of bail.

Reference to the three affidavits filed with this application and the medical report clearly indicates that the statements made by the witnesses in the affidavits are not supported by the latter as it is hard to believe that the two cavity deep injuries received by the two ladies on their chests could be caused otherwise than by deliberate act of the applicant. Then one cannot lose sight of the fact that the witnesses waited for about seven months after giving their statements to the police to file the affidavits. Therefore, great doubt exists about the truth of the statements in the affidavits. Besides that the identity of the witnesses cannot be conclusively established by their affidavits and it is difficult to rely upon the same without any proof that the same were actually sworn by the witnesses. The trial Court in fact, has expressed doubt about their authenticity. It would also be premature at this stage to determine whether the trial of the applicant would result in his conviction or not. All these factors dissuade me from granting bail to the applicant. The cases cited by Mr. Rashid Akhtar Qureshi are distinguishable and are not attracted to the circumstances of the present case.

The upshot of the above discussion is, that the bail application is rejected. However, I would like to direct that the trial Court shall decide this case as expeditiously as possible.

S.A./M‑10/K Application rejected.

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