The case of the prosecution is that Rashid Ahmad petitioner while armed with a gun, Lakhmira with a hatchet accompanied by their co-accused Bashir Ahmad who was armed with a pistol attacked and killed Iqbal alias Bali at about 3-00 p.m. On 6th January, 1982 in the vicinity of Chak No. 479, E.B.
Police Station Sahuka. The motive is stated to be that the deceased had abducted niece of Bashir Ahmad co-accused of the petitioner about 3 months prior to the occurrence. The incident was allegedly witnessed by Ahmad Yar, uncle of the deceased Lalu and Mank first cousin of the deceased besides the complainant namely, Anwar a maternal-uncle of the deceased. Three out of the 4 witnesses namely, Ahmad Yar, Lalu and Mank in their statements recorded under section 164, Cr. P.C. In the presence of the accused stated that they did not see anybody killing the deceased.
On the basis of these statements, I had granted bail to one of the assailants Bashir Ahmad co- accused of the petitioner on 27th September, 1982.
2. Learned counsel for the petitioners states that the case of the petitioners is at par with their co- accused Bashir Ahmad who was earlier granted bail by this Court that eye-witnesses who are close relatives have given clean chit to the petitioners that the deceased was a person of chequered character and was challaned in number of cases under sections 307, 380 and 302, P.P.C. Having many enemies and appears to have been murdered un-witnessed.
3. As against this learned counsel for the complainant states that the statements made by Lalu and Ahmad Yar P. Ws. Under section 164, Cr. P.C. Were obtained under coercion.. These witnesses according to him have sworn affidavit before Oath Commissioner about this fact. He therefore, emphasises that the effect of the earlier favourable statements attributed to these witnesses stands neutralized and therefore, the petitioners do not deserve to be admitted to bail in a case of extreme penalty.
4. I have considered the arguments of the counsel for the parties and also perused the record. The only matter to be considered in this case is as to whether the affidavits of Ahmad Yar and Lalu P.Ws. Should be preferred over their earlier detailed statements recorded under section 164, Cr. P.C.
By a Magistrate or not? I am of the view that the affidavits sworn before the Oath Commissioner by the deponents after eight months of their statements recorded by .a Magistrate under section 164, Cr. P.C., favouring the . Petitioners should prima facie be preferred for number of reasons. Firstly, because both Ahmad Yar and Lalu P. Ws. Appeared before the Magistrate and made statements in open Court in the presence of the accused persons. Secondly, they (deponents) did not raise their little-finger to protest that they were coerced to make the statements, for eight months. Thirdly Mank brother of Lalu P.W. Has even today shirked to come out with such an allegation about his earlier statement. Fourthly, in their belated affidavits even, the deponents have not specifically implicated petitioners.
5. For the foregoing reasons and also due to the fact that the case of the petitioners being at par with Bashir Ahmad co-accused who is already enjoying the concession of bail, I am inclined to allow this petition. They are directed to be released on bail subject to their furnishing security in the sum of Rs. 20,000 each with two sureties each in the like amount to the satisfaction of Assistant Commissioner/Duty Magistrate, Vehari.