' Allah Ditta and Fajroo petitioners are in judicial lock-up in a case under section 307/34, P.P.C.
Registered at Police Station Kahna Nau, district Lahore, vide F.I.R. No,75, dated 13-2-1984 on the statement of one Labha son of Nawab. It is stated in the F.I.R. That Fajroo (petitioner) was involved in an Arms Ordinance case and Allah Din, a brother of Labha (complainant) was a prosecution witness against. The accused Fajroo tried to prevail upon Allah Din to resile from the statement but he did not agree. It is alleged that on 13-2-1984 at about 9 a.m. The complainant was having tea at the shop of his brother Allah Din. Hakam All P.W. And Nazir Ahmed P.W. Were also having tea at that Hotel. All of a sudden, Fajroo (petitioner) armed with pistol and Allah Ditta (petitioner) armed with Dattar came there and challenged Allah Din P.W. By saying that they had come to teach him a lesson. Fajroo fired a pistol shot at Allah Din but he was not hit. Thereafter, Allah Ditta gave a Datar blow which fell on the chest of Allah Din P.W., who started bleeding and fell down Labha complainant along with Hakam All and Nazir P.W. Went towards Allah Din to rescue him but they were also fired at by Fajroo petitioner. The accused then ran away. Allah Din was then taken to hospital in a precarious condition whereafter the first information report was lodged with the police. Both the petitioners, apprehending their arrest, applied for their anticipatory bail but the same was declined by the learned Additional Sessions Judge, Lahore, by his order dated 14-3-1984.
Only eight days thereafter, the trial Magistrate vide his order dated 22-3-1984 allowed bail to both the petitioners. The complainant then filed an application for cancellation of their bail. The said application was accepted by the same learned Additional Sessions Judge who cancelled their bail vide his order dated 14-5-1984. The petitioners made another attempt before the trial Magistrate but their application was dismissed on 21-6-1984. They were unsuccessful in their plea for bail before the learned Additional. Sessions Judge. Hence this petition.
2. It is contended by the learned counsel that according to the F.I.R. Allah Ditta accused gave Dater blow on the chest of Allah Din P.W. But as per medical evidence Allah Din received only one blunt weapon injury on his person. The point, raised by the learned counsel was. To the effect that the medical evidence contradicts the story put forth in the F.I.R. It was next contended that Hakam Ali, an eye-witness according to the F.I.R., has sworn an affidavit to the effect that he was not present at the spot at the: time of occurrence and did not see the occurrence. He stated that Datar or pistol were never used by the petitioners in his presence. It is, therefore, argued that as one of the witnesses has sworn an affidavit, the case of the petitioners becomes a case of further inquiry.
3. I have considered the arguments of the learned counsel for the petitioners. According to the F.I.R., Fajroo petitioner fired twice though no one was injured. First of all, he fired at Allah Din P.W. And then he aimed at Labha complainant and other witnesses when they tried to' rescue the injured Allah Din. Allah Ditta petitioner had a Dattar in his hand and inflicted injury on the chest, a vital part of the body, Allah Din P.W. In the F.I.R., it is not stated as to whether the Datar had been used from its sharp or blunt side. In this view of the matter, it cannot be said that the medico-legal report which described the injury as having been caused by blunt weapon, contradicts the ocular account. This injury was found to be grievous. This ground is, therefore, not available in support of the plea for bail of the petitioners.
I have gone through the affidavit of Hakam Ali P.W. It is stated by him that he did not see the present occurrence. I am not prepared to place any reliance on this affidavit at this stage of the case. Even if Hakam Ali refused to support the prosecution story then also there will be the statement of Allah Din, the injured witness, and other witnesses. Secondly, I am of the opinion that it appears that Hakam Ali P.W. Has been won over by the accused or their relatives. In the instant case, the motive was that Allah Din, the injured P.W. Was a recovery witness in an Arms Ordinance case against Fajroo petitioner accused. He was trying to prevail upon Allah Din to resile from his statement. This means that he was trying to win over the witness and tamper with the prosecution evidence and thereby hamper due process of law. It appears that in similar circumstances Hakam Ali P.W. Has also been won over by the accused or their relatives.
4. In support of his contentions, learned counsel for the petitioner placed reliance on Rehmat All v.
The State 1979 SCMR 30, Allah Bakhsh v. Noor Hussain 1979 SCMR 137 and Khalil Ahmad v. The State 1979 P Cr.L J 250. I have gone through these cases, and I find that these are not applicable to the facts of the present case. In the case of Rehmat Ali, the complainant, the mother, and sister of the deceased, had filed affidavits and the complainant had even applied to the District Magistrate for cancellation of the case and for that reason the accused Rehmat Ali was admitted' to bail. The case of Rehmat All was, therefore, clearly a case of compromise between the parties. In the case of Allah Bakhsh, the bail had not been granted to the accused by the Supreme Court. That was a petition by Allah Bakhsh against Noor Hussain for cancellation of bail and it was found by the learned Judges of the Supreme Court, after noting the fact that there was the affidavit of a witness before the High Court, that the High Court had exercised jurisdiction properly. It is not clear from this judgment on what various grounds, the bail had been granted by the High Court. In that view of the matter, it cannot be said that the said case was applicable to the facts and circumstances of the present case. Moreover, the case of Allah Bakhsh does not lay down that every affidavit by a witness can be made the basis for grant of bail to an accused. It will, of course, depend on facts and circumstances of each case. In the case of Khalil Ahmad, learned Judge had allowed bail for many reasons which included that there was no eye-witness of the occurrence and the extra- judicial confession before a witness was improbable because the accused and the said witness had long-standing enmity. The case was, therefore. Found to be that of further inquiry. The bail was not allowed on the basis of the affidavit.
5. Of late, tendency of filing affidavits of prosecution witnesses in support of the plea for bail has been noticed. There are many aspects of the situation. Firstly, if the complainant and all the injured witnesses file affidavits in support of an accused and are present in Court in person to support their affidavits, then those 'affidavits may justifiably be taken into consideration while deciding a bail matter. It can then be held that as the complainant and the injured witnesses are not supporting the prosecution case, the same becomes a case of further inquiry. If, however, there is an affidavit of only one witness as in the present case or some of the witnesses whether injured or not, then those affidavits will not make the case of the accused to be that of further inquiry. It will have to be seen whether in the presence of one or a few affidavits, there was any other evidence to justify conclusion whether or not reasonable grounds exist to indicate prima facie guilt of the accused.
The Court will have to give a finding whether it was a case of no evidence or a case of tampering with the prosecution case. If it appears to be a case of tampering with the evidence, then clearly no Court would be prepared to stamp such an act of the accused. This would mean that the accused/petitioner did not approach the Court with clean hands. No one could be allowed to impede the course of justice or hamper it. The granting of bail in non-bailable offences is a concession allowed to an accused and it presupposes that the privilege is sought not by tampering of evidence or by securing affidavit by exerting any undue influence on the witness/witnesses so as to destroy the evidence or to minimise its effect. If an accused acts in this manner, he disentitles himself to secure the privilege of bail. In suport of this view, I place reliance on Sadho and four others v. The State E 1980 P Cr. L J 441. In view of the above discussion, I find no merit in this petition which is accordingly dismissed.