1996 P Cr (PLP)

Malik Muhammad Suleman Awan and Malik Shah Muhammad Mohsan for Petitioner. Mansoor-ur-Rehman Khan Afridi and Abdul Sattar for the Complainant. Khalid Mehmood Farooqi for the State Liaqat Ali petitioner was reported against vide F.I.R. No.112/95, dated 10-5-1995 registered with Police Station Manga Mandi, Lahore for offences under section 302/324/452/148/149, P.P.C. for causing the murder of Ghulam Rasul, son of the complainant and injuring others. The allegation against the petitioner is that he while armed with a mauser fired at the deceased.

2. In support of the petitioner learned counsel argued that the petitioner has been involved in this case due to malice and mala fides on the part of the prosecution; the medical evidence contradicts the ocular version inasmuch as pallets were recovered from the body of the deceased while the petitioner was allegedly armed with a mauser; in three successive investigations the petitioner has been found innocent; the motive is absolutely false and that mere mention of the petitioner's name in the F.I.R. does not debar the petitioner from the concession of pre-arrest bail. He relied on 1995 PCr.LJ 544.

3. Conversely learned counsel for the State as well as learned counsel for the complainant vehemently opposed the petition. They submitted that the petitioner is named, in the F.I.R. with specific role and that ipsi dixit of the police declaring the petitioner innocent is not binding upon the Court and as such the petitioner is not entitled to the concession of pre-attest bail.

4. I have heard, the arguments advanced by the learned counsel for both the sides at length and have perused the record with their able assistance.

5. No doubt the petitioner has been declared innocent on the plea of alibi by three Investigating Officers but Zimni No.23, dated 2-7-1995 written by-S.P. (Mujahid) shows that both the parties were summoned by him for 27-6-1995 on which date an application was moved by the accused that on account of bereavement in the family, he was unable to appear when the Investigating Officer himself saw the accused in the office of the D.I.-G. at 12-30 p.m. On the adjourned date that is 2-7-1995, also the accused was stated to have gone for bereavement in the family. According to Investigating Officer, during all the period the petitioner had been trying to get the investigation transferred in which he succeeded and got the investigation transferred to S.P. (Cantt.) who vide Zimni No.39, dated 11-9-1995 endorsed the earlier investigation conducted by the local police. This factor is sufficient to shake the veracity of the opinion of three Investigating Officers. The plea of alibi came up for consideration before Honourable Supreme Court of Pakistan in case of Waqar-ul-Haq v. The State 1985 SCMR 974 and the learned Judges were pleased to hold that as for the plea of alibi, it cannot be judged at bail stage in the face of prima facie material to show that accused had fired the shots and in this view of the matter the opinion of the Investigating Officers as to innocence of the accused are not of any value nor can the enmity imputed against the complainant provide a ground for his release on bail. In so far as the question of contradictions between the medical and ocular version is concerned, that cannot be gone into at pre-arrest bail stage as the guidelines for the grant of pre and post-arrest bail have been provided by the Honourable Supreme Court of Pakistan in case Sarwar Sultan v. The State PLD 1994 SC

133. It was held in the supra case by their Lordships of the Supreme Court that grant of pre-arrest bail means that the accused is exempted from joining the investigation, prosecution case may suffer for want of recovery of incriminating articles and other material which may be necessary to connect him with the commission of alleged crime. The citation relied upon by the learned counsel for the petitioner is not applicable to the facts of case in hand as that was a post-arrest bail matter while the one in hand is pre-arrest bail. Further as the petitioner has been on bail since from the registration of the F.I.R., the recovery of the alleged weapons of offence is yet to be made.

6. In view of the above circumstances, I do not feel inclined to extend the concession of pre-arrest bail at this stage. Disposed of accordingly. H.B.T./L-108/L Pre-arrest bail refused.