1. ' SHAHID ANWAR BAJWA, J.---F.I.R. No,7 of 2011 was recorded at Police Station Raza Goth on 6-5- 2011 for an incident, alleged to have taken place on 30-4-2011 at 1900 hours. Complainant was one ASI Shah Mohammad Mirani on behalf of State. He stated that he. Along with Police party was on patrol duty when he received information that a Jirga was held under the supervision of Mohammad Murad, applicant in Cr.B.A 575 of 2011 in respect of murder committed in 1999 and it was decided in the Jirga that hands of 12 girls and a fine of Rs,2.50,000/- will be given as Badl-i-Sulh. The two applicants in Cr.B.A 630 of 2011 are alleged to be present at the time of Jirga along with some 30 other persons.
2. ' Learned counsel for the applicants submitted that statements of tour girls were recorded under Section 164, Cr.P.0 and the present applicants are behind the bars on the basis of such statements.
3. He submitted that subsequently these four girls have given affidavits that they had been detained by Police and they had been forced for giving such Statements under Section 164, Cr.P.C. Learned counsel next submitted that neither complainant nor any of the girls is eye-witness of the alleged Jirga. Learned counsel next submitted that there is delay of. Six days in lodging of F.I.R. Lastly, learned counsel contended that there are four persons by name of Mohammad Murad in the village and F.I.R. Does not state name of father of Mohammad Murad and this, in any case. Would be a case of further inquiry. Learned counsel relied upon Muhammad Nawaz alias Najja v. The State, 1991 SCM R 111, Allah a, J) Bakhsh v. Nazar Hussain Shah and another, 1979 SCM R 137, Rahmat Ali and another v. The State, 1979 SCM R 30, Mumtaz Ali v. The State, 2006 YLR 3029, Mohammad Najeeb v. The State, 2009 SCMR 44.8, All Gul and 3 others v. The State, 1986 PCr.LJ 433, Muhammad Nawaz and others v. The State, 1989 PCr.LJ 1126 and Cr.B.A No,S-121 of 2011, Ghulam Qadir v. The State, decided by a Single Bench of this Court on 16-5-2011.
4. ' Learned APG submitted that offence falls within section 310-A, P.P.C. And, therefore, the applicants are not entitled to bail. He, however, submitted that there is no evidence whatsoever available so far except statements under Section 164, Cr.P.0 and there is no corroboration of statements available with the investigation at this time.
5. ' I have considered the submissions made by the learned counsel and have also gone through the record.
6. ' The only piece of evidence, at least available so far, is four statements of the girls under section 164, Cr.P.C. Their statements are almost identical. As an example, statement of one of the girls may be reproduced: "Decision of blood feud between my father Mohammad Pariyal and Mumtaz Ali was decided by our village notables Mohammad Ibrahim and Mohammad Murad in a Jirga. My father Mohammad Pariyal agreed to give myself in Nikah and to pay fine of Rs, 22,00,000/-. My Nikah has not been held but Jirga has taken place".
7. ' Same girl has filed an affidavit and in the affidavit, she stated as under:-- "1. That I say that on 6-5-2011, Police has illegally arrested me . And Mst. Bakhshul w/o Paryal, Mst.
8. Sameena D/O Hasul, Mst. Naveeda D/O Ali Hassan, Mst. Samreen D/O Hasul for given our statement under section 164, Cr.P.0 at the choice of the Police and also Police officers gave hopes/promise to me and others that if I and other will give statement under section 164, Cr.P.0 as per Police version then I and other applicants will be released otherwise I and others will be murdered. On 10-5-2011, I along with Mst. Sameena, Mst. Naveeda; Mst. Samreen were produced by the investigation officer before learned Magistrate where due to fear of life I and others recorded our statements under section 164, Cr.P.0 in presence of Police as per instructions of Police. My statement under section 164 Cr.P.0 is not voluntarily true but given to the highhandedness of Police due to fear of life and honour.
2. That I say that the all accused persons are innocent and no any Jirga was held or given our hands as Sang Chati to anybody, hence the allegations levelled by the Police against nominated accused persons in F.I.R. No, 7 of 2011, Police Station Raza Goth, District Sukkur are false, fabricated and concocted one, hence denied".
9. ' Learned counsel for the applicants relied upon Mohammad Nawaz's case (supra). The Supreme Court observed that P.Ws have been questioned by them and they had supported the averments made in the affidavits. Consequently, bail was allowed. In Allah Bakhsh's case (supra) the allegation was that respondents and co-accused attacked late Haq Nawaz and put him to death.
10. In respect of their bail application, they brought affidavits of two eye-witnesses named in the F.I.R.
11. Who exculpated them. Bail was granted by the trial Court on the basis of affidavits and decision was not interfered by the High Court and the Supreme Court concurred. In Rahmat Ali's case (supra), complainant himself disowned prosecution case. The bail was allowed by the Supreme Court on the ground of further inquiry. In Mumtaz Ali's case (supra), names of the applicants were mentioned in the F.I.R. But subsequently, complainant filed an affidavit stating that there he had not given names of applicants and Police had included names on their own. Single Judge of this Court observed as under:-- "Upon the above discussion, I am satisfied that in view of affidavits filed by the complainant and P.Ws. Resiling from their previous version and exonerating the applicant a reasonable doubt has been created and the case requires further enquiry. At present there are no reasonable grounds to believe that applicant is guilty of an offence punishable with death, imprisonment for life or 10 years, so as to deprive him from the concession of bail".
12. ' In Muhammad Najeeb's case (supra), complainant initially nominated accused in the F.I.R. But later on through an affidavit expressed his satisfaction with regard to innocence of the accused and stated that he did not want to proceed with the matter. The Supreme Court observed as under:-- "6. We have considered the contentions raised at the Bar and have also gone through the material brought on record in minute particulars. Though initially petitioner was nominated in the F.I.R. By the complainant as an accused but later on through affidavit he stated that he is satisfied with regard to the innocence of the petitioner and does not want to proceed with the matter. This aspect of the matter has not been taken into consideration by the Courts below. We without touching the merits of the case are of the view that case of petitioner is of further inquiry. Accordingly, this petition is converted into appeal and is allowed. Appellant Muhammad Najeeb is granted bail subject to furnishing surety in the sum of Rs,2,00,000 (Rupees two lacs) with P.R. Bond in the like amount to the satisfaction of the trial Court".
13. ' In Ali Gul's case (supra) eye-witnesses including complainant filed their affidavits in which they did not implicate accused and a Single Judge of this Court observed as under:- "In view of the above Supreme Court authorities of Rehmat Ali and Allah Bakhsh which have also been followed in the unreported case of Abdul Bari of this Court, the affidavits of the witnesses that are filed for the purpose of bail are not without legal status and hence cannot be ignored. It seems the said authorities of the Supreme Court were not brought to the notice of the learned Chief Justice when he was seized of the above-reported case of Allah Ditto. However, I am in complete agreement with the learned Chief Justice that such affidavits are not regarded as evidence under the Evidence Act and cannot be acted upon unless the Court is satisfied that they are true and reliable. Thus even in the case of Allah Ditto, the use of the affidavits has not been altogether shut out. But before they are taken into consideration, the Court using the same must be satisfied, about the identity of the deponents that they are the same persons who figure as witnesses in the case in which the affidavits are filed. On being so satisfied, the Court cannot ignore the affidavits as has been ruled by the Supreme Court in the above-reported cases. Since the affidavits contain statements of the witnesses which are deviations from their earlier statements, particularly when the later statements i,e, affidavits are on oath, the Court perhaps will have no option but to hold that in view of the conflict between the two sets of statements it is yet to be determined as to which of the statements are true and until then the case of the accused will call for further enquiry".
14. ' In Muhammad Nawaz's case (supra), eye-witnesses had named accused persons in their various statements previously but later in their statements, they asserted that accused had muffled their faces and that they did not name accused persons, Single Judge of this Court observed as under:- - "By giving such affidavits whole ocular, testimony of prosecution is exposed to doubt. Minus ocular testimony the remaining evidence proposed to be produced by the prosecution does not seem to be adequate so as to refuse bail".
15. ' I may here also refer to case of Nasir Ahmed v. The State, PLD 1997 SC 347. A very material observation has been made by the Supreme Court in the reported case to the following effect:-- "A trend has developed nowadays that eye-witnesses some times; take a somersault and give statements which are different from prosecution case and sometimes file affidavits also at the stage of hearing of bail applications of accused persons with 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".
16. The principle, deducible from the above cases, seems to be:
(1) Affidavits of witnesses and the complainant subsequently filed cannot be regarded as evidence and cannot be acted upon unless Court is satisfied that they are true and reliable.
(2) Court just cannot ignore these affidavits and it has to take them into consideration.
(3) When the affidavits deviate from earlier statements and the affidavits are on oath, the Court has to consider their effect qua further inquiry in respect of the incident.
(4) Court has to be very careful and must, in the presence of affidavits, decide bail application on its own merits.
(5) Ever, affidavit should not be treated as be all and end all of the case of prosecution.
(6) Court has to weigh the circumstances and then come to the conclusion whether what weight, if any, is to be attached to these affidavits.
(7) Since at the bail stage, assessm ent is tentative, weight assigned to the affidavits will also be tentative in nature.
17. ' Learned counsel also relied upon an unreported Judgment by a Single Judge in Ghulam Qadir's case (supra), wherein similar allegations of Jirga were alleged. It was observed by a Single Bench of this Court as under:-- "It appears from the very F.I.R. That there are allegations holding Jirga and threats allegedly issued to the complainant but the same are being denied by the accused party to the extent that no such Jirga was even held at any time; therefore, the same requires further inquiry and, accordingly, this is a case in which further inquiry is needed".
18. In the present case, only evidence available against the accused persons is the statements under Section 164, Cr.P.0 of four females. Statement of one of the girls has been reproduced above. It may be pointed out that one of the girls Naveeda is 4/5 years old, another one Samreen is 7/8 years old and Samina is 5/6 years old. It is only Irshad, who is 15/16 years old, None of these have stated that they witnessed the alleged Jirga being held. Though no reliance should be placed on such statements by a minor but it is not out of place to mention here that none of these four persons have stated that they were present when the Jirga was held. None of them stated as to how they came to know about the conduct or holding or decision of such Jirga. Learned APG frankly conceded that except these four statements, there is no other material whatsoever available with Police. Now there was whole village including clan of the so called Jirga holders and the clan of the complainant but not a single person's statement has been recorded under section 161, Cr.P.0 through a period of almost five months has expired since recording of F.I.R. This makes it a case of further inquiry.
19. ' I must record here my complete dissatisfaction, utter and total, regarding conduct of investigation. What the Police has done in this case is practically nothing. In the affidavits filed by the girls, it has been alleged that they were taken into custody on 6-5-2011 and then they were produced for recording statements' on 10-5-2011. No one . In Police appears to have looked at the statements made in the affidavits, as probably Police is more busy in doing other things' than investigating crimes. The Court is fully conscious of the fact that such Jirgas are a blot on the fair name of our society and this is a blatant violation of not only the law of the land but also injunctions of Islam. One cannot find words sufficiently strong and sufficiently repulsive to condemn such acts of holding such Jirga and giving women as if they are not equal human beings but an inconsequential item of property. One cannot refrain from expressing his anguish over this attitude of Police regarding, investigation in such like case. However, since in the present case, there is nothing further than statement of one girls of 15/16 years old, other three, being minors and the four girls also not being witnesses of the C incident and not disclosing as to how they cat me to know about this case, the case falls within the scope of further inquiry.
20. Result of the above discussion is that bail already granted to the applicant of Cr.B.A. No,575 of 2011 is confirmed with enhancement of amount of surety and P.R bond to Rs,1,00,000/- and applicants in Cr.B.A No,630 of 2011 are ordered to be admitted to bail upon their executing P.R bonds in the sum of Rs,1,00,000/- (One Lac) each with one surety each in the like amount, to, the, satisfaction of the trial Court.