' Nasir Ahmad, Faiz Ahmad petitioners are accused of the murder of Abdul Sattar. The case was registered against them on 22-5.76 at Police Station Chuchak, District Sahiwal.
2. It is alleged that Faiz Ahmad petitioner had illicit connection with Mst. Kausar sister of Nasir Ahmad petitioner ; Abdul Sattar deceased scandalized them by saying that Mst. Kausar had conceived of Faiz Ahmad. This offended the petitioners and on the night of occurrence, both armed with hatchets cane to the land of Umar Din. Abdul Sattar (deceased) and his father Umar Din had slept there to guard the harvested wheat. Faiz Ahmad raised a lalkara at the deceased upon which Nasir Ahmed petitioner gave a hatchet blow on the neck of Abdul Satter, which killed him. Umar Din (informant) got up and witnessed the occurrence. Hakam Ali and Imam Din who were in the vacinity, had come there to irrigate their field also witnessed the occurrence and were threatened by the accused to stay away from them.
3. Contradictory affidavits of Imam Din have been attested by different Oath Commissioners of Sahiwal district. In the affidavit allegedly made by Imam Din (relied upon by the petitioners), the witness showed ignorance about the murder. But in the subsequent affidavit (relied upon by the complainant), the witness claimed that he did not make the earlier affidavit. Obviously one of the two affidavits is false or the witness is shifting his position for one reason or the other. Any contact with a witness of a criminal case would amount to tampering with evidence. There are only three sections in the Code of Criminal Procedure 1. e., sections 74, 526, 539-A according to which a fact may be got proved by affidavit. It follows that an affidavit not covered by these sections is not legal evidence. It may be mentioned bete that section 164, Cr. P. C. Provides for recording the statement of a witness by a Magistrate which course was not adopted in this case. It will be for the trial Court to go into the matter about the contradictory affidavits of Imam Din P. W. After the witness is examined by him at the trial.
4. It was contended that it was a blind murder and the petitioners have been roped in on account of enmity of a previous murder. It was next contended that if Faiz petitioner was carrying on with the sister of his co-accused, they would then be against each other and not join hands for committing the crime. Moreover, the accused who go at night time want to conceal their identity; under these circumstances would one of them raise a lalkara is a matter which requires further inquiry. There is force in this submission. I therefore, confirm the bail allowed to Faiz Ahmad petitioner. In so far as Nasir Ahma petitioner is concerned, since he is said to have given the fatal blow B which is supported by all the eye-witnesses in their statements recorded under section 164, Cr. P. C., I, therefore, do not consider it a fit case for ball to him. His petition is dismissed.