1. ' Three applicants, namely, Muhammad Nawaz, Muhammad Ayoob and Allandino are facing trial for offence under section 302/34, P.P.C. For having committed murder of Moroo in furtherance of their common intention. As per F.I.R. Incident took place on 31-3-1987 at 11-30 p.m. Rahim Ali brother of absconding co-accused Allahwassayo was murdered for which Moroo deceased in this case and his brother Mehardil were suspected. On the night of incident at the time as stated above complainant Abdul Rahim and his father Muhammad Ibrahim heard cries and went to the house of Moroo. Mst. Rani wife of Moroo was raising cries. Complainant had torch in the light of which he and Ibrahim saw applicant Muhammad Nawaz sitting over Moroo on the cot holding him, Muhammad Ayoob cutting throat of Moroo with dagger while Allandino armed with gun and absconding co- accused Allahwassayo armed with rifle were standing there near the cot. Allahwassayo shouted at the witnesses not to come near as they were taking revenge of murder of his brother Rahimali.
2. After slaughtering Moroo accused persons named above ran away firing in the air. Complainant Abdul Rahim leaving other witnesses near the dead body went to inform his Zamindar Haji Kaura Khan who was asleep and then met him in the morning and apprised him of the incident who advised complainant to go and file the report. Complainant filed report at P.S. Jagan at Humayun, District Shikarpur at 8-15 a.m. On 1-4-1987. It would be pertinent to mention here that complainant Abdul Rahim, as is stated in F.I.R. Is cousin of deceased Moroo and further is brother of Mst. Rani who is wife of deceased. Muhammad Ibrahim is father of Abdul Rahim and Mst. Rani.
3. ' During the investigation applicants Muhammad Nawaz and Muhammad Ayoob were arrested on 28-4-1987 and on the pointation of Muhammad Ayoob blood-stained dagger was recovered from a bush on the bank of Began canal. It would be worthwhile to mention here once again that incident took place on 31-31987.
4. ' On behalf of three applicants named above bail plea was urged before the trial Court on the ground that three eye-witnesses in the case mentioned above had sworn affidavits before Clerk of the Court, Sessions Court, in which they have stated that accused persons were not identified as their faces were muffled and night was dark. Hence names of accused persons were not mentioned in F.I.R. Of complainant and 161, Cr.P.C. Statements of the remaining eye-witnesses. Trial Court rejected bail plea on the ground that affidavits were not stamped and such practice of applying for bail on the basis of ex parte affidavits is deprecated by the High Court. In the order passed by the trial Court such decision of the High Court is not quoted but it appears that reliance is placed on the case of Allanditto and another v. State PLD 1984 Kar. 223 and this order is passed by Mr. Justice Abdul Hayee Kureshi, Acting Chief Justice of Sind High Court (as he then was).
5. Relevant paragraph from the said order is reproduced hereunder:- "I have recently come across a growing tendency in the Sessions Courts to take notice of and rely on ex parte affidavits of prosecution witnesses, stating that 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 Evidence Act. The deponents' 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. 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."
6. ' Order quoted above was passed on 19-4-1984 and it appears from the perusal of that order that case-law on the subject was not cited and two decisions of the Supreme Court of Pakistan were not noticed. In the case of Rehmat Ali and another v. State reported in 1979 SCMR 30 Supreme Court of Pakistan granted bail in the case in which complainant resiled from the version given by him in F.I.R. And claimed in 164, Cr.P.C. Statement that accused were innocent and two eye- witnesses, mother and sister of deceased swore affidavits vouching innocence of accused. It was observed by the Supreme Court that without commenting as to what weight, if any, can and ought to be attached to the aforementioned statement of complainant and affidavits relied upon by petitioners in support of their plea of bail, in view of disowning of prosecution case by complainant and eye-witnesses, case of the petitioners for the purpose of bail would require further enquiry as contemplated under section 497(2), Cr.P.C. In another case Allah Bux v. Nazar Hussain Shah and another reported in 1979 SCMR 137, Supreme Court of Pakistan refused to interfere with finding of the High Court granting bail on the ground that alleged eye-witnesses swore affidavits exculpating accused from commission of crime and such affidavits were produced at the time of hearing of bail application. It was further observed that such affidavits formed necessary material which had to be considered by learned Judge in reaching the conclusion whether respondent could be said to have been connected with the offence making out a case of further enquiry under section 497(2), Cr.P.C.
7. ' View expressed by Supreme Court of Pakistan in cases mentioned above is followed by my learned brother Muhammad Ali Khan, J. Of Sind High Court (as he then was) in the case of Aligul and others v. State reported in 1986 P Cr. L J 433. Both Supreme Court authorities mentioned above have been noticed and relied upon and it has been held by my learned brother that in case in which eye-witnesses file affidavits disowning prosecution case then that case requires further enquiry on the basis of conflict between two sets of statments. It is further held that affidavits of witnesses cannot be ignored but the Court using such affidavits must be satisfied about the identity of deponents.
8. ' There are so many other cases in which view stated above is consistently followed. In the case of Syed Ali Raza and others v. State 1981 P Cr. L J 1080 Mr. Justice Javed Iqbal of Lahore High Court (as he then was) granted bail to petitioners in a murder case when injured prosecution witnesses filed affidavits advancing entirely different version as to petitioners not being assailants but some other people. In the case of Muhammad Ismail v. State reported in 1984 P Cr. L J 1433(2), Muhammad Rafiq Tarar, J. Of Lahore High Court allowed bail in a case under section 302, P.P.C. On the ground that all three eye-witnesses including complainant had sworn affidavits to the effect that they had not seen the occurrence and had only learnt about it. In the case of Jehangir and another v. State 1985 P Cr. L J 2905 Sidhwa, J. Of Lahore High Court granted bail in a case under section 307/149, P.P.C. On the ground that complainant and injured person submitted affidavits regarding compromise between the parties. Reference can also be made to the cases of Muhammad Nazir and another v. State 1985 P Cr. L J 953, Muhammad Yar and others v. State 1986 P Cr. L J 987, Falak Sher and others v. State 1986 P Cr. L J 1099(2) and my own decision in the case of Bagh and others v. State 1984 P Cr. L J 3222.
9. In the instant case all the three eye-witnesses who are closely related to the deceased have sworn affidavits which tend to exonerate applicants. Previously they had named applicants and absconding co-accused specifically in their various statements but now they say in the affidavits that faces of culprits were muffled and they had not given out the names. 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. Incident took place on 31-3-1987, applicants Muhammad Nawaz and Muhammad Ayoob were arrested on 28-4-1987, at the instance of Muhammad Ayoob, dagger was recovered from bush on the bank of Began canal on 4-4-1987 which was found to be stained with blood.
10. Nothing is recovered from Muhammad Nawaz who was empty-handed. Mashirs are yet to be examined. Till then keeping in view all the concomitant circumstances of the case as stated above this is a case which requires further enquiry, as such I admit applicants to bail in the sum of Rs,50,000 with one surety and P.R. Each in the like amount to the satisfaction of the trial Court.
11. ' Assistance rendered by Mr. Malick Ghulam Kadir amicus curie is appreciated.