1. ' This bail application has been filed on behalf of one Muhammad Chuttal and Khairo alias Khair Bakhsh who are facing trial for offence under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979 and 13-D, Arms Ordinance in Crime No, 48/93 of Police Station Kamber, District Larkana in the Court of IVth Additional Sessions Judge, Larkana.
2. ' The brief facts as alleged by complainant Sobhomal in his F.I.R. Are that on 18-5-1993 after closing his shop he was going to his house in Kamber town alongwith P.Ws. Liaquat Ali and Himath Ali. He had taken Rs,2,000 alongwith himself which he had taken from the shop. When they reached near Surhia mosque four persons appeared there out of whom two were armed with pistols and two were empty handed. They had seen the faces of the culprits clearly on the electric light. It is further alleged in the F.I.R. That the two persons who were armed with pistols caught hold of the complainant and the third person snatched Rs,2,000 forcibly from him. On his resistance he was given fist blow as a result of which his two teeth were broken. One of the culprits was captured on the spot and a police party who were performing mobile duty at that time reached there and the accused was handed over to the police on the spot. The apprehended culprit disclosed his name as Zamir Bozdar. However the other three culprits escaped from the Wardat alongwith the robbed amount. The complainant alongwith the police party and the arrested accused came to the police station where the complainant lodged his F.I.R. At Police Station Kamber.
3. ' The present applicants were arrested during the investigation on 26-5-1993. It is further alleged that Rs,1,500 were recovered from applicant Chuttal one of the accused. The remaining accused Ghazanfar Ali alias Jial was arrested on 30-5-1993 and the accused were picked out in the identification test by the complainant and the witnesses.
4. ' An application for bail was moved before the trial Court but the same was rejected by the IVth Additional Sessions Judge, Larkana hence this application has been filed before this Court.
5. ' The complainant and the two witnesses and one Mashir of the identification test filed their affidavits before the trial Court alongwith the bail application exonerating the present applicants.
6. ' The main contentions raised by the Advocate for the applicants are that the names of the present applicants are not mentioned in the F.I.R. And the only evidence, according to him, against the present applicants is that the complainant and his eye-witnesses, namely, Himath Ali and Liaquat Ali had picked up them in the identification test and that Rs,1,500 were recovered from one of the present applicants, namely, Chuttal. He has further contended that complainant Sobho Mal, prosecution witnesses Liaquat Ali and Himath Ali appeared before the trial Court on 25-8-1993 and admitted the contents of the affidavits filed by them before the trial Court.
7. ' The Advocate for the applicants has relied upon 1991 SCM R 111 in which the accused was released on bail by their Lordships as the prosecution witnesses who has appeared in the Court supported the averment made by them in their affidavits to the effect that the accused was not involved in the incident.
8. ' It has been held in various judgments of the superior Courts that when eye-witnesses file affidavits disowning prosecution case then that case requires further enquiry on the basis of conflict between two sets of statements. It has been further observed that the evidence of the witnesses cannot be ignored but the Court using such affidavits must be satisfied about the identity of the deponent.
9. ' It has also been held by his Lordship Mr. Justice Sajjad Ali Shah, Judge of Sindh High Court (as he then was) in a reported matter in 1989 PCr.LJ 1126 relying upon various judgments viz. Rehmat Ali and another v. The. State 1979 SCM R 30, Allah Bux v. Nazar Hussain Shah 1979 SCMR 13, All Gul and others v. State 1986 P Cr. L J 433 and Syed All Raza v. State 1981 PCr.LJ 1080, "that in the instant case all the three eye-witnesses who are closely related to the deceased have sworn affidavits which tend to exonerate the applicant. Previously they had named the applicant specifically in their various statements but now they say in their affidavits that faces of the culprits were muffled and they had not given out their names. By giving such affidavits ocular testimony of the prosecution is exposed to doubt".
10. ' It has been held in 1993 P Cr. L J 1489 by his Lordship Mr. Justice Mamobn Kazi that when the main witnesses in the case come forward and give affidavits not supporting their earlier version recorded by the police under section 161, Cr.P.C. The accused in that case should be released on bail because there was no likelihood of the accused being convicted in that case but some proof must be produced before the Court in regard to authenticity of such affidavits.
11. ' The learned counsel appearing on behalf of the State has not opposed the grant of bail to the applicants.
12. ' I have gone through the first information report, police statements and other material collected during the investigation by the police.
13. ' The prosecution case rests on the oral evidence of complainant Sobho Mal and witnesses Liaquat Ali and Him ath Ali. The incident had taken place at night time and even the accused had been identified on the street light. The accused/applicants were arrested on 26-5-1993 and the identification test was held on 30-5-1993 four days after remaining in the police custody which by itself is a circumstance which makes identification doubtful unless strong evidence comes on record during the trial apart from this piece of evidence to connect the accused with crime. The only other piece of evidence relied upon by the trial Court for rejecting the bail application is the recovery of Rs,1,500 from accused/applicant Chuttal. No details of the currency notes have been given in the first information report. As such this piece of evidence will have practically no evidentiary value and cannot be used for connecting the accused with the crime, particularly when all the eye-witnesses including the complainant have exonerated the applicants in their affidavits.
14. The contents of the affidavits have been admitted and verified before the trial Court. The present bail application has been pressed on the ground that all the prosecution witnesses in the case have sworn affidavits exonerating the applicants.
15. ' Relying upon the principle as held in the above judgments I feel that the applicants have made out a case of further inquiry within the meaning c of subsection (2) of section 497, Cr.P.C.
16. Accordingly by short order dated 25-10-1993 I granted bail to the applicants by furnishing surety in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court and these are the reasons for the same.