P L D 1998 Supreme Court 97 (PLP)

MUHAMMAD BASHIR JEHANGIRI, J.

This petition is from the order of Peshawar High Court dated 23-10-1996 whereby anticipatory bail granted to respondent No.1 who was accused alongwith two others in a case under section 302 read with section 34, P.P.C. was maintained and the plea for cancellation of pre-arrest bail was not entertained.

2. Attaullah Khan, brother of the petitioner and his two co-accused, had charged the respondent in the F.I.R. of occurrence for firing at him in a broad daylight occurrence. The first informant -having succumbed to the fire-arm injury, the F.I.R. was treated as dying declaration. The respondent who is an Assistant Taxation Officer in Municipal Corporation, Peshawar, was granted bail before arrest by the learned Sessions Judge, Peshawar, conceding substantially the plea of alibi which was sought to be substantiated by the statement of Taxation Officer, Stenographer Zafar Ali and Naib‑Qasid Muhammad Naeem.

3. The concession of anticipatory bail granted to the respondent was not interfered with by the learned Judge in Chambers of the High Court on the grounds; firstly, that during the period of 14 months he remained on pre‑arrest bail, the respondent had not misused the concession and, secondly, that "on the day of occurrence he had attended the Office and remained there from 8‑00 a.m. to 4‑00 p.m."

4. Mr. M. Arif Khan, Advocate Supreme Court appearing on behalf of the petitioner, seeks the cancellation of pre‑arrest bail granted to the respondent on the following grounds:‑‑ (1)???????? That the plea of alibi could not be scrutinised or adverted to at the bail stage. In support of this contention, he placed reliance on: (i) Bahadur v. Muhammad Latif and others 1987 SCMR 788; (ii) Iqbalur Rahman v. The State PLD 1974 SC 83. (2)???????? That Khizar Hayat the real brother and co‑accused of the respondent during his abscondence, had killed a prosecution witness in the instant case. (3)???????? That the learned Sessions Judge as also the learned Single Judge had erred in ignoring guiding principles enunciated by this Court in matters of granting or refusing pre‑arrest bail. namely, mala fides and ulterior motives etc. ,

5. Mr. Muhammad Azam Khan, learned Advocate‑General, also supported the plea for cancellation of anticipatory bail.

6. Conversely, Mr. K.G. Sabir, Advocate Supreme Court, representing the respondent, defended the impugned order of pre‑arrest bail and urged that apart from plea of alibi which is substantiated by the colleagues of the respondent, the deceased had involved three accused for the solitary fire shot injury. He further maintained that the challan had been put in the trial Court and therefore, on the authority of this Court in Muhammad Ismail v. Muhammad Rafiq and another PLD 1989 SC 585, the order of grant or refusal of bail is ordinarily not interfered with.

7. No doubt the proposition is well settled that bail can be granted in a case of capital charge on the plea of alibi if peculiar facts and circumstances of that case so justify the findings in favour of grant of bail. The latest cases in? support of this proposition are of Said Akbar and another v. Gul Akbar ?another 1996 SCMR 931 and Malik Muhammad Saleheen v. Arshad Siddiq and others 1997 SCMR 1829. In the last mentioned authority of this Court (which was authored by me) I had distinguished the older authorities on this proposition which were to the effect that plea of alibi in those cases was not available to the accused therein. In the instant case, however, we do not feel inclined to grant bail for two reasons: firstly that the distance between the place of occurrence and the place of duty of the respondent is hardly A kilometres on a road and the possibility that the petitioner could go unnoticed to the place of occurrence and come back to join duty could not altogether be excluded and, secondly, the deceased‑complainant had himself and the remaining witnesses who have been examined under section

161. Cr.P.C. have asserted that the respondent was present alongwith his brother and cousin, his co‑accused, at the time of the occurrence duly armed with lethal weapon. As stated earlier, the incident had taken place in broad daylight at 3‑00 p.m. It would be for the trial Court to believe either the eye‑witnesses including the credibility of the dying declaration or defence plea of alibi for which the evidence is yet to he recorded by the trial Court.???????????????????????????????????????????

8. There is abundant case‑lawn for the proposition that apprehension of arrest of an accused being for ulterior motive, for example, that of humiliation 8 and unjustified harassment is a sine qua non for pre‑arrest bail. In support, of this proposition, the cases may be cited of Haji Gamun v. Muhammad Afzal and 2 others PLD 1991 Pesh. 54; Hidayatullah Khan v. The Crown PLD 1949 Lah. 21; Crown v. Khushi Muhammad PLD 1953 FC 170; Shaukat Hussain Rizvi v. The State PLD 1961 Kar. 121; Sadiq Ali v. State PLD 1966 SC 589; Zahoor Ahmad v. State PLD 1974 Lah. 256; Ghulam Abbas v. Zakaullah PLD 197f Lah. 21; Muhammad Safdar v. The State 1983 SCMR 645; Zia‑ul‑Hasan v. The State PLD 1984 SC 192 and Shabir Ahmad v. The State PLD 1981 Lah. 599 The learned counsel for the respondents was unable to satisfy us with regard to the condition of mala fide of the prosecution for the impending arrest of the accused‑respondents. The learned Sessions Judge, while dealing with the application for pre‑arrest bail of the respondent, did not advert at all to the principles enunciated by the superior Courts for the disposal of application of pre‑arrest bail and seems to have been unnecessarily impressed by extraneous circumstances. The contention that the deceased had involved three accused for the solitary fire shot injury and, therefore, the respondent could be entitled to bail has recently been repelled in the precedent case of this Court in Shahzaman and 2 others v. The State and another PLD 1994 SC

65. The observations in the case of Shahzaman (supra) on this proposition are:‑‑ "Since trial Court has granted bail mainly on the ground that fatal injury of deceased is not pointedly attributed to anyone of the appellants, hence it is a question of further enquiry and High Court has disagreed with this finding, it would be necessary at this stage to study the legal aspect of the matter. Section 497(2), Cr.P.C. provides that if it appears to the Court at any stage that there are no reasonable grounds for believing that accused committed a non-bailable offence, but there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail. Now what will constitute as sufficient grounds for further enquiry, would depend upon peculiar facts of each case and no hard and fast rule can be laid down for that purpose. Every hypothetical question which can be imagined would not make it a case of further enquiry simply for the reason that it can be answered by the Trial Court subsequently after evaluation of evidence. Broadly speaking the condition laid down in clause (2) of section 497, Cr.P.C. is that there are sufficient grounds for further enquiry into his guilt which means that the question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of, the offence with which he is charged. For example if accused is charged -for offence under section 302, P.P.C. but there are grounds for further enquiry which may show that he may not be convicted of charge under section 302, P.P.C. and acquitted or convicted for a lesser offence. In the instant case the fact that in F.I.R it is not pin-pointed as to which appellant had what weapon and who caused the fatal injury, would not alter the charge on conviction if prosecution evidence is believed and may have some effect only on the quantum of sentence "

9. No doubt the prosecution has submitted the challan against the respondents in the Court. There is also no cavil with the proposition that this p Court has held that normally this Court does not interfere with the order of the High Court regarding bail in cases in which either the challan has been put in the Court and the trial is likely to commence shortly or the trial has begun This proposition lends support from the precedents of this Court in Muhammad Ismail (supra), Miandad v. State 1992 SCMR 1448 and Said Akbar and another v. Gul Akbar and another 1996 SCMR 931 the words 'normally' or 'ordinarily' have been used. The instant case, to our mind, does not fall in either of the two situations enunciated in the authorities cited above.

10. For the facts and reasons stated above, we convert this petition into an appeal, allow the same, set aside the impugned order of the learned Single Judge in the High Court and the pre-arrest bail already granted to the respondent is cancelled. The respondent shall surrender to the authorities of the concerned police station at the earliest. M.B.A./A-33/S??????????????????????????????????????????????? Appeal allowed.