1. ' The above two applicants have been arrested in a case under sections 302/364/109, P.P.C. For having abducted Abdul Jabbar deceased and having killed him on 29-3-1984 at 3.15 p.m. Report of the incident was lodged by complainant Abdul Ghaffar, brother of deceased Abdul Jabbar after 15 minutes of the incident at Mehmoodabad Police Station, in which he stated that he found co- accused Muhammad Yousuf causing knife injuries to Abdul Jabbar deceased. During investigation it transpired that co-accused Muhammad Rafiq alongwith applicants Muhammad Nazir and Khan Muhammad had forcibly taken Abdul Jabbar to the house of co-accused Muhammad Yousuf, who killed Abdul Jabbar in his house.
2. ' Bail application was moved on behalf of Muhammad Rafiq before the Second Additional Sessions Judge, Karachi who by his order, dated 13th June, 1984 admitted him to bail on the ground that the witnesses who are alleged to have seen Muhammad Rafiq and co-accused Muhammad Nazir and Khan Muhammad (present applicants) taking away deceased Abdul Jabbar to the house of Muhammad Yousuf, have filed affidavits to the effect that they did not see Muhammad Rafiq and the above two applicants taking away Abdul Jabbar forcibly to the house of co-accused Muhammad Yousuf. Bail application on behalf of the applicants was also moved, but it was dismissed by another Additional Sessions Judge on 26-4-1984 mainly on the ground that he had earlier dismissed their bail application. Hence the applicants moved this Court for bail under section 498, Cr.P.C.
3. ' So far as the murder of Abdul Jabbar is concerned, the applicants have not been implicated by complainant Abdul Ghaffar. The complainant has Implicated only co-accused Muhammad Yousuf.
4. He claims to be an eye-witness but he has not named the applicants. It was on 7-4-1984 i,e, after about 10 days of the incident that P.Ws. Sher Bahadur, Aurang Zeb and Noor Hussain were examined by the Police, in whose statements names of the applicants and Muhammad Rafiq transpired. So far as Sher Bahadur and Noor Hussain are concerned, they have not stated in their Police Statement that they saw the applicants and Muhammad Rafiq taking away deceased Abdul Jabbar to the house of Muhammad Yousuf. They have, stated that they were told by P.W.
5. Aurangzeb about the above fact. Aurangzeb had filed affidavit before the Additional Sessions Judge to the effect that he did not implicate the applicants or Muhammad Rafiq in this case. Even Sher Bahadur filed affidavit to the effect that he did not implicate the applicants. These two persons also appeared before the lInd Additional Sessions Judge and confirmed their versions as given in the affidavits. It has, therefore, rightly been argued by Mr. Muhammad Rauf learned counsel for the applicants that the case against the applicants is similar to the one against Muhammad Rafiq who has already been released on bail. He has also relied on 1979 SCMR 147 in which it has been laid down by the Supreme Court that affidavits filed by alleged eye-witnesses exculpating accused persons from commission of crime should be considered in concluding whether they could be said to have been connected with crime. It was further held that the High Court was justified in concluding on the basis of the affidavits that the case against the accused required further inquiry and that bail could not be refused on that ground.
6. ' Mr. Muhammad Ibrahim Memon, A.A.-G. Has on the other hand relied on the case of Allandito and others v. The State PLD 1984 Kar. 223 in which it has been held that "there is a growing tendency in the Sessions Courts to take notice of and rely on ex parte affidavits of prosecution witnesses, stating that the accused were not guilty and minimising the extent of their guilt. These affidavits are not sworn in the Courts, but before some Oath Commissioners and the contents thereof are not evidence within the meaning of the Evidence Act. The deponent's averments are not tested by Courts and normally the Courts do not even compare the contents of earlier statements of these witnesses with the statements made in affidavits, and such affidavits would normally be of no value, unless there are very strong circumstances to indicate that the police investigation was dishonest, and the Investigating Officer has attributed the making of some allegations against the accused by a witness, who has, in fact, not made those allegations. Before such affidavits are considered and relied upon for the purpose of granting bail to persons accused of capital charges, or, heinous offences the Court should look round and find out which out of the two versions made by a particular witness is true." The above case is distinguishable because the alleged eye- witnesses of this crime who had filed their affidavits before the learned Sessions Judge, had also appeared before the learned Judge and confirmed their versions in their affidavits. Hence the principle laid down by the Supreme Court in 1979 SCMR 147 is fully attracted.
7. ' The bail application is, therefore, allowed. Both the applicants shall be released on furnishing sureties in the amount of Rs, 30,000 and P.R. In like amount each to the satisfaction of IInd Additional Sessions, Karachi.