1. ORDER MUHAMMAD TASNIM, J.--- Granted.
2. Exemption granted but subject to all just exceptions.
3. Applicants Amanullah alias Muzammil Khan and Saifullah are booked in Crime No,62 of 2011 on 2- 3-2011 registered under sections 395/353/324, P.P.C. At Police Station Al-Falah. The case as set out by the prosecution is that complainant Kashif Mehmood reported to the police that he resides at the address mentioned in F.I.R. And along with him his family members and tenants are also housed in the same building. On the day of incident at 0400 hours seven persons armed with weapons broke in the house after breaking up the locks and on the behest of guns they confined my family members and the tenants in a room, one of them kept eyes on us with gun, accused persons snatched away cash amount of Rs.75,000, gold ornaments viz. Two pieces of tops, one bracelet, and two Mobile Phones Nokia 6030 and Motorola C-168, and from the abode of tenant Fateh Khan cash Rs.120,000, one pound 1,500, four bangles, two tops, two watches and from house of tenant Shahbaz gold bracelet was taken. It is further stated that on their hue and cry Mohalla people gathered and police mobile spotted there chased the accused persons and at Ghazali War the accused persons after seeing the police party opened fire over them and in return police also made firing upon the accused persons and the police succeeded in arresting three accused persons, namely, Amanullah, Saifullah and Muzammil Khan and from all of them weapons were recovered. The police personnel carry personal search in the presence of complainant and from the pocket of accused Amanullah our snatched Mobile Nokia 6030, from pocket of accused Saifullah our another snatched mobile Motorola C-168 and from the pocket of accused Muzamil recovered Rs.26,540 were recovered and accused persons also disclosed the name of their companions as Lal Khan Janan, Bacha Khan and Sher Muhammad.
2. Learned counsel for the applicants says that in the first place the applicants have approached the learned IV-Additional Sessions Judge, Karachi-East, by means of bail application but the same was dismissed per order dated 25-3-2011. Being aggrieved and dissatisfied from the order of learned trial Court the present bail application has been filed by the applicants/accused. Learned counsel for the applicants has submitted that the present applicants/ accused have been falsely implicated in the case and no recovery whatsoever was effected from them and the recovered articles including the weapons have been foisted upon them. He says that on the first date of hearing when complainant appeared in Court he filed his on affidavit and affidavit of one Fateh Khan stating therein that the present applicants were not arrested in their presence and the alleged recoveries were foisted. One of them have also stated in their affidavits that the actual persons have made their escape good before the police spotted there. Learned counsel has relied upon the case of Muhammad Nawaz alias Najja v. The State (1991 SCMR Ill) wherein the Hon'ble Supreme Court of Pakistan has admitted the applicant/accused to bail on the basis of affidavits filed by the prosecution witnesses who appeared along with the Police Officers and supported the averments in the affidavits made by them. Learned counsel for the applicants/accused says that in complete disregard of the above judgment the learned trial Court dismissed the bail applications of thy. Applicants/ accused while placing reliance the case of Ghulam Hassan v. The State (2005 M LD 1083) decided by a learned Single Judge of Lahore High Court. Learned counsel says that the judgment rendered by learned Single Judge of Lahore High Court was distinguishable on facts and the reliance placed by the learned trial Court while rejecting the bail application was misplaced. He says that the applicants/ accused are innocent in view of affidavits of the prosecution witnesses available on the record of original Court so also before this Court and he says that applicants be admitted to bail.
3. Conversely, learned A.P.-G. Has opposed the grant of bail and submits that the present applicants were apprehended on the spot and the recovery was effected on the spot. He says that name of the applicants appeared in the F.I.R. And the prosecution witnesses in their statements under section 161, Cr.P.C. Have fully implicated the applicants/accused with the commission of offence with which they have been charged. He has placed reliance on the case of Naseer Ahmed v. The State (PLD 1997 SC 347).
4. I have heard the learned counsel for the parties and have gone through the record so also the case-law cited at the bar.
5. It is settled principle of law that at the bail stage deeper appreciation of the record cannot be gone into but tentative assessm ent is to be made just to find out as to whether the applicants/accused are connected with the commission of offence or not with which they have been charged. Keeping in view of such legal position if record of the present case is examined it will be noticed that both the material witnesses who are alleged to be eyewitnesses have filed their affidavits before the learned trial Court stating therein that the present applicants/accused were neither arrested in their presence nor any recovery was effected from them. They have stated in their affidavits that recovery has been foisted upon the present applicants accused.
6. Adverting to the case-law relied upon by the learned counsel for the applicants it will be seen that in the case of Muhammad Nawaz (1991 SCM R 111) the Hon'ble Supreme Court of Pakistan directed the prosecution witnesses to appear before the Court. They accordingly appeared along with the police officers and on questioning by the Court they supported the averments made in their affidavits to the effect that petitioner/accused in that case was not implicated in the occurrence based on the affidavits of the prosecution witnesses. The applicant/accused in the reported case was admitted to bail.
7. With regard to the judgment cited by learned trial Court the case of Ghulam Hassan v. The State (2005 M LD 1083) an examination of the order would show that facts of that case are entirely distinguishable and has no bearing to the case in hand. The learned trial Court was not justified in ignoring the rule laid down by the Hon'ble Supreme Court of Pakistan and to follow the order passed by the learned Single Judge of Lahore High Court in the case of Ghulam Hassan v. The State (2005 M LD 1083).
8. The other judgment, Naseer Ahmed v. The State (PLD 1997 SC 347), cited by learned A.P.-G. Is also distinguishable on facts as in the reported case some of the prosecution witnesses filed A affidavits and the Hon'ble Supreme Court of Pakistan while dealing with this aspect of the matter has observed as under:-........................ A trend has developed nowadays that eye-witnesses some times take a somersault and give statements which are different from prosecution case and some times file affidavits also at the stage of hearing of bail applications of accused persons with the intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eye-witnesses in manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each case is to be decided on its on merits."
9. From the perusal of above quoted extract of the judgment of Hon'ble Supreme Court of Pakistan it would be seen that some of the witnesses have filed affidavits in the reported case and rest of the witnesses have supported the case of prosecution. In the circumstances the Hon'ble Supreme Court of Pakistan has observed as quoted hereinabove this judgment is not applicable to the circumstances of the case as in the present case both the alleged eye-witnesses have filed their affidavits exonerating the applicants/accused from the charge. Affidavits filed by both the P. Was.
10. Have created doubt in the prosecution case calling for further enquiry in terms of subsection (2) of section 497, Cr.P.C. Both the applicants/accused Amanullah alias Muzammil Khan son of Sahib Khan and Saifullah son of Haji Abdul Mannan are admitted to bail on their furnishing surety in the sum of Rs.200,000.00 (Rupees two hundred thousand) each with P.R. Bond in the like amount to the satisfaction of learned trial Court..