1975 PLP 219 (SCMR)

ANWARUL HAQ, J.‑The petitioner is aggrieved by an order made by a learned single Judge of the Lahore High Court on 8‑11‑1974 allowing bail before arrest to the respondent, Ch. Mohammad Anwar Samma, M. P. A., in a case registered against him and several others under sections 148, 302 and 436 of the Pakistan Penal Code read with section 149 thereof, in connection with the murder of the respondent's cousin a>>d brother‑in‑law Nabi Ahmad on the 21st of October 1974 Before the learned Judge affidavits of as many as twenty‑four members of the provincial Assembly were filed to the effect that the petitioner attended the entire session of the Provincial Assembly at Lahore on that date from 4‑30 p.m. to about 6‑30 p.m. with the necessary implication that he could not have been present at the place of occurrence situated within the jurisdiction of Police Station, Sadar, Gujrat. The learned Judge took the view that although the truth or otherwise of the plea of alibi had to be ascertained at the enquiry or trial, yet it could not be lightly brushed aside for the purposes of bail. Leave to appeal is sought on the ground that the respondent having been mentioned in the first information report and a specific part having been assigned to him in the tragic occurrence, it was not the function of the High Court to accept his alibi at this stage. In support of this submission, reliance is placed on Iqbalur Rahman v. The State (PLD 1974 SC 83). We consider that the learned Judge in the High Court has rightly remarked that the case relied upon by the learned counsel for the petitioner does not spell out an absolute bar in the way of the High Court considering the effect of a plea of alibi for the purposes of bail. We also find that the learned Judge has not given any decision regarding the veracity of the respondent's plea, but has merely remarked that it could not be lightly brushed aside. It will be seen that the alibi in this case comes from a large number of members of the Provincial Assembly, accordingly it would require serious consideration at the proper time In view of the affidavits filed on behalf of the respondent, the case would appear to us to fall within the ambit of subsection (2) of section 497 of the Code of Criminal Procedure, namely, a case requiring further inquiry. We were informed at the Bar that the challan has not yet been submitted before any Court. It is, therefore, premature to comment upon the evidence which the prosecution intends to produce against the respondent. Considering the peculiar circumstances, as outlined above, we are not inclined to interfere with the order made by the High Court. At the same time we think it is clear that it will be open to the petitioner to renew his application for cancellation of bail, if so advised, when prosecution evidence, implicating the respondent, has been brought on the record. The petition is, accordingly, dismissed. Petition dismissed.