1. ' Petitioner Haider and Malook have moved for bail.
2. ' Allegation against them is that on the night between 14th and 15th of July 1989 at about 1 a.m. They were found standing beside the cot on which Mst.Basran was sleeping in house of her brother Achar, where Achar and Majeed were also sleeping. They woke up on hearing a firearm shot and saw the petitioners. Haider had a pistol while Malook had a hatchet. The petitioners threatened to kill the witnesses if they approached them and they left after saying that they had honoured their promise. The witnesses found that Mst.Basran was lying dead and she had a firearm injury. Such F.I.R. Was lodged by Achar.
3. ' Mr.Siyal learned counsel for the petitioners argued that all the eyewitnesses viz. Abdul Majeed, Achar and Mst.Saran had sworn affidavits exculpating the petitioners. In this respect learned counsel cited the cases of Rehmat Ali and another v. The State 1979 SCMR 30, Allah Bux v. Nazar Hussain and others 1979 SCMR 137 and Naimat v. The State 1976 P Cr. L J 1050. It was further argued that even Ali Sher who was mashir of recovery had sworn affidavit to the effect that nothing was recovered from the applicant No,1. It was further argued that Malook could not have caused the murder of Mst.Basran because he was armed with a hatchet and the deceased had not received any hatchet injury.
4. ' Learned AA.-G. Opposed the application. In respect of the affidavits filed in support of the petitioners the learned AA.-G. Cited the case of Muhammad Sharif and another v. The State 1988 SCMR 541. Learned AA.G. Also cited the case of Islamul Haq and others v. The State 1974 P.Cr.L.J.
5. 6.
6. In respect of the point whether affidavits of prosecution witnesses exculpating accused can be relied on for purposes of bail, there are cases on both sides of the proposition. In the case of Rehmat All v. The State 1979 SCMR 30 the complainant had resiled from his F.I.R. In his statement under section 164, Cr.P.C. Where he exculpated the accused and the mother and the sister of the deceased swore affidavits vouching for innocence of the accused and the Supreme Court of Pakistan without commenting as to what weight can be attached to the affidavits and to the statement under section 164 Cr.P.C., granted bail. In the case of Allah Bux v. Nazar Hussain and others 1979 SCMR 137 the Supreme Court of Pakistan did not interfere with grant of hail by the Lahore High Court on the basis of affidavits filed by the eye-witnesses exculpating the accused from commission of the crime. However, in the case of Muhammad Sharif and others v. The State 1988 SC MR 541 the Supreme Court of Pakistan did not rely upon the affidavits of prosecution witnesses to the effect that no incident as alleged took place. In cited case the accused were apprehended from the place where dead bodies of the deceased were lying. In cited cases no unqualified rule has been laid down for relying or not relying on such affidavits. It appears that the value which can be attached to such affidavits depends upon the facts and circumstances of each case.
7. Besides the ocular evidence of Achar, Abdul Majeed and Mst.Saran, there is an additional evidence against petitioner Haider about recovery of pistol.
8. ' This recovery is very important in view of the fact that Mst.Basran has died due to firearm injury.
9. Although mashir Ali Sher has also sworn an affidavit exculpating accused Haider but on this point the Investigating Officer has to be examined. Even if the recovery witnesses have been won over and dropped by the prosecution, the recovery can still be proved by solitary statement of the Investigating Officer as observed in the case of Islamul Haq and others v. The State 1974 Pakistan Criminal Law Journal 6 cited by learned AA.-G.
10. ' In this situation, Ghulam Haider has no case for bail and I dismiss his application. There is no recovery of any firearm from applicant Malook, who was armed with a hatchet while the deceased had no hatchet injury. In this way case of Malook is distinguishable and he is granted bail in the sum of Rs,1,00,000 (Rupees one lac) with P.R. In the like amount to the satisfaction of learned Sessions Judge, Nawabshah.