1988 P Cr (PLP)

The petitioner Muhammad Afzal who is involved in a case under section 303/34, P.P.C arising out of F.I.R No.119, dated 12-2-1987, registered at Police Station City Sheikhupura, seeks to be released on bail.

2. It has been alleged that on 12-2-1987 at about 11.45 a.m. 2afarullah deceased, riding on a motor cycle while coming back from the District Courts, passed through Chowk National Bank, Civil Lines, Sheikhupura. From behind, the petitioner accompanied by his brother Muhammad Akbar, riding on a motor cycle also passed through the said chowk. The motor cycle was being driven by Muhammad Akbar while Muhammad Afzal petitioner was sitting on the rear seat carrying a .12 bore gun. When the petitioner and Muhammad Akbar reached near Zafarullah, Muhammad Afzal raised lalkara that Zafarullah should not be allowed to go alive. Simultaneously, he fired a shot from his gun hitting Zafarullah on the right shoulder. Zafarullah fell down from the motor cycle and started bleeding profusely. He succumbed to the injury there and then.

3. Regarding motive it has been alleged that about four years earlier, Zulfiqar Ali, brother of Muhammad Afzal petitioner and Muhammad Akbar co-accused, was murdered. For that murder, 11 persons including Zafarullah deceased were challaned. Zafarullah was ultimately acquitted in that case and on account of that grudge, the petitioner and Muhammad Akbar murdered Zafarullah deceased. Muhammad Akbar, brother and co-accused of the petitioner, has already been admitted to bail by a learned Additional Sessions Judge, Sheikhupura.

4. It has been contended on behalf of the petitioner that he was arrested at Gujranwala on 10-2-1987 by police of Model Town Police Station, Gujranwala under section 13 of the Arms Ordinance (XX of 1965). Under the orders of a Magistrate he was sent to judicial lockup on 11-2-1987. He was released on bail on 15-2-1987. It has thus been pleaded that at the fateful time, the petitioner was in jail at Gujranwala. Reference in this behalf has been made to daily diary No.14, dated 5-7-1987. In the said diary in para. 2, it has been mentioned that the police ascertained from the jail record, that of police station Model Town and that of the Court of Itaqa Magistrate, Gujranwala, that the petitioner was arrested on 10-2-1987 in the aforementioned Arms case. He was sent up to the judicial lock up on 11-2-1987, while he was released on bail on 15-2-1987. It has further been mentioned that to establish the identity of the person who was so arrested and kept in jail was, in fact, the petitioner, thumb impressions purporting to be those of the petitioner obtained by the jail authorities in their admission register were sent for comparison with the specimen thumb-impressions of the petitioner to the Finger Print Bureau. In the case diary dated 15-3-1987, bearing No.14, the. Investigating Officer has mentioned that he himself went to Gujranwala to verify about the plea of alibi of the petitioner and checked the records of Model Town Police Station and District Jail, Gujranwala. It has further been mentioned that he collected the thumb-impression on the jail admission register and also obtained specimen thumb impressions of the petitioner before a Magistrate and sent the same for comparison to the Finger Print Bureau. The case diary dated 13-6-1987 mentions about the report received from the Finger Print Bureau which is stated to be to the effect that thumb-impressions against entry No.812 of Gujranwala Jail Admission Register are identical with the left thumb-impressions of Muhammad Afzal on his sample paper.

5. While opposing the petitioner's plea for bail, it has been maintained on behalf of the complainant that the plea of alibi cannot and should not be taken into consideration at the stage of bail and that the correctness of such a plea can only be ascertained at the time of trial. It has also been stated that trial in this case has been fixed for 12th of this month and, therefore, bail application of the petitioner should not appropriately be considered only a few days prior to the commencement of the trial.

6. The contentions raised on behalf of both the parties have been fully considered and thoroughly analysed. As a matter of fact no date for the commencement of the trial has so far been fixed. Only the accused have been summoned for 12th of this month. Regarding the plea that defence of alibi should not be considered for the purpose of bail, it may be observed that there is no substance in this plea. If on account of such plea, the case against the accused becomes that of further inquiry, he becomes entitled to be release on bail. In Ch. Muhammad Shafi v. Ch., Muhammad Anwar Samma and another (1975 S C M R 219), it was ruled by the Supreme Court of Pakistan that consideration of effect of plea of alibi for purpose of bail is permissible. In Sangi Marmar and another v. The State (1975 SCMR 510), accused-petitioners claimed to have been in police custody since one day before the day of occurrence. This fact was admitted by the S.H.O. before the Magistrate. It was, therefore, held by the Supreme Court of Pakistan that this was a fit case for grant of bail. In Akram Khan v. The State and another (1978 S C M R 242), it was ruled by the Supreme Court of Pakistan that plea of alibi can be considered for the purpose of bail. In Billand v. Muhammad Din and another 1987 P Cr. L J 2340, it was held that there was no legal bar on Court to take into consideration the plea of alibi for purpose of granting bail.

7. In the light of the circumstances detailed above and without prejudice to the merits of the case, it is concluded that the plea of alibi raised by the petitioner has rendered the case against him of further enquiry. In this view of the matter, he is admitted to bail in the sum of Rs.30,000 with two sureties each in the like amount to the satisfaction of the A. C . Sheikhupura. S.A./M-569/L Bail granted.