1. The four applicants on whose behalf this bail application has been made are accused of having committed double murder of Salim and Muhammad Bux, son and grandson respectively of the complainant Muhammad Khan. The F.I.R. Reveals that the two deceased persons accompanied by the complainant, Muhammad Hayat and Malang were returning from the house of Allah Ditto where they had gone to enquire about the health of his were who also happens to be daughter of the complainant, when the incident occurred. It is said the deceased persons from whom Salim had his licensed gun were going a little ahead of the complainant and other two witnesses. As soon as Salim and Muhammad Bux reached the inspection path of Rohri Canal, all the applicants alongwith Talib armed with guns emerged. They all fired their guns at both the deceased who fell down and died of the gun shot injuries. The accused then threw their dead bodies in the canal and thereafter, decamped taking away the gun of the deceased Salim. Muharram, Kamoo and others who responded to the complainant's cries were apprised of the facts of the incident and with their help the dead bodies were taken out from the canal. Leaving the other witnesses to take care of the dead bodies, the complainant went and lodged F.I.R. At Taluka Police Station Nawabshah. The F.I.R. Shows that above murders were committed in the background of long-standing enmity between the parties.
2. It appears the trial Court was moved for bail twice by applicants but each time their request was turned down. Their application for bail to this Court also failed. However, it was left open to them to repeat application on fresh grounds. Accordingly they once again approached the trial Court for bail, this time on the ground that the parties had patched up and consequently all the eye- witnesses including complainant had -filed their affidavits deviating froth their earlier statements.
3. However relying upon Allah Ditto and another v. The State A PLD 1984 Kar. 223, the First Additional Sessions Judge Nawabshah dismissed the applicants plea for bail vide impugned order dated 17- 12-1984.
4. "I have recently come across s 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.
5. Even otherwise, it is established principle of law that, when a person speaks in two tones, a duty is cast upon the Court to determine in which tone he is speaking the truth. It is only after such exercise is undertaken by the trial Court that the trial Court will be justified in acting on the ex parte affidavits of persons for the purpose of grant of bail. Instances also are not unknown when fake documents have been produced before the Court, and the complainants then create a hue and cry, stating that they have not made the affidavits at all, and such documents, as have been placed before the Court, are fake, or forged. To say the least, the evidence furnished by such affidavits at such initial stage of the case has to be looked upon, prima facie, with suspicion, and the Court should be slow to act on such affidavits, unless the Court is satisfied that interest of justice will be advanced by acting on the same for the reason that the contents of the affidavits are true and reliable and should be accepted in preference to the earlier statement of that person made during investigation."
6. (1)Rehmat Ali and another v. The State 1979 SCMR 30, (2)Allah Bakhsh v. Nazar Hussain Shah and others 1979 SCMR 137.
7. "But without commenting as to what weight if any, can and ought to be attached to the aforementioned statement of the complainant and the affidavits relied upon by the petitioners in support of plea for bail, we are inclined to think that at this stage at least it is difficult to say if the petitioners have committed the offence, more particularly when the complainant himself seem at the moment to disown the prosecution case in the circumstances of this case we think 'that the case of the petitioners is one of 'further enquiry' under section 297(2), Cr.P.C."
8. "The two affidavits filed by the alleged eye-witnesses exculpating the respondent herein from the commission of the crime were thereon the record of the case forming the necessary material which had to be considered by the learned Judge in reaching the conclusions whether the respondent could be said to have been connected with the offence. This is indeed what the learned Judge in the High Court has done to which no exception can be taken. We, therefore, respectfully agree with his conclusion that this was a case for further inquiry under section 497 (2), Cr.P.C. And consequently it was not a case in which bail could be refused to the respondent."
9. The above Supreme Court authorities were followed by this Court in the recent unreported case of Abdul Bari v. The, State (Criminal Rail Application No. 948/84) wherein the learned Single Judge took the view that the earlier case of Allah Ditto of this Court was distinguishable inasmuch as that in the said case it was held that where the identity of the witnesses swearing affidavits is not established and the affidavits are Sworn before Oath Commissioner, then by way of abundant caution a Magistrate should not act upon such affidavits.
10. At this stage the learned Assistant Advocate-General cited the case of Sanaullah and 3 others v.
11. The State 1983 SCMR 15 wherein the affidavit filed by only witness was ignored because the Court took the view that even if on the basis of the affidavit his evidence was excluded there was still complainant who would support the prosecution case.