' SALMAN HAMID, J.---Brief facts of the case, for the purposes of disposal of this bail application are that an F.I.R. No,10 of 2010 before Police Station Kandhra under sections 302, 364, 147, 148, 149 Pakistan Penal Code (F.I.R.) was lodged by Mr. Abdul Haleem son of Mr. Ghulam Sarwar (Complainant) against the accused persons, including the present two applicants mentioned in the F.I.R. Who committed murder of one Mr. Muhammad Younus, son of Mr. Abdul Ghaffar.'This murder, as per the contents of the F.I.R. Was an outcome of an old enmity.
2. The grounds for bail application which were raised and argued by the learned counsel for the applicants were that the applicants were not present at the time, place and date of the incident and that they have been implicated falsely and due to enmity as mentioned in the F.I.R. Itself and that even if it is presumed that the applicants were present at the time, place and date of incident, their names having been shown in the later part of the F.I.R., the offence of kidnapping cannot be attributed against than and that affidavit of complainant and that of one Mr. Ali Gohar, son of Muhammad Sattar having been filed to the effect that the names of the applicants had been mentioned in the F.I.R. Due to old enmity and now they have been exonerated by the complainant and Ali Gohar, they are entitled to bail.
3. In support of his contentions, the learned counsel relied upon the case of Mumtaz Ali v. The State (2006 YLR 3029) and the case of Allah Bux v. Nazar Hussain Shah and another (1979 SCM R 137) and an Order dated 3-1-2011 passed by me in Criminal Bail Application No,S-1062 of 2011 Re:Saifal v. The State.
4. Opposing the bail application, Mr.Shyam Lal Ladhani, learned A.P.-G., argued that as far as the affidavit of the complainant and one Mr. Ali Gohar are concerned, the same have been filed very late and/or after submission of the challan. According to him the same were aimed at to tamper the progress and/or evidence of the case. In support of his contention, the learned APG relied upon the cases of Abdul Haq alias Qavi v. The State (1996 PCr.LJ 1115), Muhammad Shakeel Khan v. The State (1987 PCr.LJ 753) and Naseer Ahmed v. The State (PLD 1997 SC 347).
5. It was further argued that the applicants are not entitled to the concession of bail inasmuch as that F.I.R. Against them is also in respect of section 364 Pakistan Penal Code relating to kidnapping which is an offence against humanity and not against individual person. It was further agitated by the learned A.P.-G. That the applicants are hardened criminals. It was mentioned that against Hajjan Criminal Case No,134 of 2009 under section 302 Pakistan Penal Code is pending, whereas Criminal Case No,167 of 2009 under sections 452 and 382 Pakistan Penal Code and Criminal Case No,01 of 2010 under section 379 are pending against both the applicants. In support of such contention the learned counsel relied upon the case of Shameel Ahmed v. The State (2009 SCM R 174).
6. Combating the argument as raised by the learned counsel for the applicants that section 364, P.P.C. Was not attracted in the facts and circumstances of the case against the applicants, the learned A.P.-G. Stated that in terms of section 114 Pakistan Penal Code relating to abetment since the applicants had fully abated in commission of the offence though at the time of kidnapping they were absent the argument that section 364, P.P.C. Is not against them was refuted. It was also specifically denied that the provisions of section 364, P.P.C. Were not attracted against the applicants. In such respect the case of Mamaras v. The State (PLD 2009 SC 385) was relied upon.
7. It was lastly contended that the arrest of the two applicants was made possible after an encounter on 3-5-2010 and at such time S.B.B.L. And pistol was recovered from the applicants and case under section 13-D Arms Ordinance was also registered against them. Memo of arrest and personal search of the applicants was produced before this Court to substantiate his argument.
8. In rebuttal to the above arguments, the learned counsel for the applicants made an attempt by justifying that as far as the criminal cases mentioned against the applicants are concerned in all of them they are on bail and that it was reiterated that since in the affidavits it has been mentioned by the deponents thereof that the applicants were named in the F.I.R. Due to old enmity they are entitled to bail.
9. Heard arguments.
10. Looking at the facts and circumstances of the case and also the criminal record as presented by the learned A.P.-G. Which was only refuted to the extent that in all such cases the applicants are on bail goes to prove that the applicants are notorious criminals and have been active in criminal activities which must be seen by this Court very seriously and no light effect is to be given to the same. It is obvious that the bails which were granted to the applicant in the noted cases have been blatantly misused by only advancing criminal activities in the society, which include taking of life of an innocent young man. It is also an admitted position that even the arrest of two applicants was made possible after a police encounter when at such time they were also found in possession of unlicensed weapons with the result that an F.I.R. Under section 13-D of the Arms Ordinance was lodged against them and the case is pending adjudication in respect thereof.
11. As to the swearing of affidavits by the Complainant and one other person namely Ali Gohar are concerned, looking at the precarious situation of the case, the possibility of obtaining such affidavits by influence, coercion and force cannot be ruled out keeping in view the track record of the two applicants.
12. Coming to the cases of Mumtaz Ali and that of Allah Bux cited, by the learned counsel for the applicants the facts and circumstances thereof are entirely different and distinguishable than the case in hand. In the first instance it was a case against Property (Enforcement of Hudood)
Ordinance, 1979 whereas the present case is in respect of a murder of an innocent young man of 20 years who was first kidnapped and than murdered heinously; secondly in that case the applicants were not notorious or hardened criminal whereas here, as the record would show, the applicants have a track record of heinous crimes. It seems that upon obtaining bails in the cases mentioned above, the offence as mentioned in the F.I.R. Was committed. The applicants did not stop there, even the arrest of the applicant was made possible only after an encounter with the police. The gravity of the case can very well be gauged from the criminal activities of the applicants.
13. Adverting to the case of Abdul Haq alias Qavi cited by the learned A.P.-G. The Division Bench of this Court held that affidavit sworn by the mashir who made recovery of the heavy quantity of narcotics, exonerating the accused could not be considered at the time when the case is yet to be proceeded and if such affidavits would be considered the same would amount to tampering of evidence. The bail order dated 3-1-2011 passed by me in Criminal Bail Application No,S-1062 of 2010 relied upon by the learned counsel for the applicant was of no assistance inasmuch as that in such case I granted the bail to the applicants therein after considering and appreciating the fact that the names of the applicants therein were not at all mentioned in the F.I.R. Affidavit were sworn by the complainant and the eye -witnesses therein to the effect that they never named the applicants therein and names were given due to mala fide of the police concerned. This case is therefore of no assistance to the present applicants to the case in hand.
14. In the case of Muhammad Shakeel Khan, cited by the learned A.P.-G., again it was held by this Court that affidavits having been sworn after seven months and the trial Court expressing doubt over authenticity thereof the veracity of such affidavits was doubted and it was noted therein that such affidavits would influence the result of the case; the bail was refused. In the case in hand though the incident is of 27-2-2010, challan whereof was submitted on 2-4-2010 the two affidavits relied upon by the applicants were sworn as late as 8th November, 2010. Gauging the affidavits on the touch-stone of the above citation and even otherwise are of not much assistance to the applicants.
15. In the case of Nazeer Ahmed, the Hon'ble Supreme Court of Pakistan the trend of eye-witnesses taking a somersault and give statement which were different from prosecution case and file affidavits at the stage of hearing of the bail application with the intention of creating doubt in the prosecution case to enable accused to get the bail was depreciated by observing that the Courts have to be very careful in such cases and see that the bail applications are disposed of strictly in accordance with law and on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. Thus it is clear that the mind of the Court has to be satisfied where a U-turn is taken by the complainant. Since in the present case I am not convinced that the affidavits have been sworn by the two deponents without any influence and also looking at the track record of the applicants not inclined to give weight to such affidavits.
16. Since the provisions of section 114 also fully attracted in the case in hand, even if it is presumed that the applicants did not kidnap the deceased, the fact would remain the same that all the accused including the applicants abetted in commission of offence of murder and still the case of the applicants would remain within the pale of prohibitory clause of section 497, Cr.P.C.
17. No case having been made out by the applicants as provided under subsection (2) of section 497, Cr.P.C. This bail application is hereby dismissed.