1995 PLP 1213 (MLD)

(c) Plea of alibi has been pressed into by the petitioner. In support whereof there is sufficient evidence. (d) A definite stand has been taken by the accused party especially by Muhammad Zahin, accused, that he fired at the deceased, Abdul Qayyum, and not the present petitioner. According to the learned counsel, Muhammad Zahin, accused suffered a fire‑arm injury. Therefore, he has exercised the right of self‑defence while firing at Abdul Qayyum and, Muhammad Mustafa. According to him the allegations against the petitioner are false and not tenable in the eye. (e) Lastly he contends that the finding of the police regarding innocence may not be binding on the Court, but it do make out a case for further inquiry for the purpose of bail.

4. The learned counsel for the petitioner has relied upon the following judgments:‑‑ (1)1984 P Cr. L J 2311. (2) 1980 P Cr. L J 787. (3) 1979 SCMR 103.

5. On the other hand, the learned counsel for the State and for the complainant opposed the bail vehemently on the following grounds:‑‑ (a) That the name of the petitioner is mentioned in the F.I.R. The fatal injury of Abdul Qayyum deceased, is attributed to the petitioner. He was armed with .12 bore gun. (b) The post‑mortem report do support the site and nature of the injuries having been caused with 12 bore gun. The learned counsel for the State contends that the statement of Muhammad Zahin, co‑accused, is a result of conspiracy between the accused. The petitioner and the co -accused have concocked a story to save the skin of the petitioner and to damage the case of the prosecution. Otherwise, there is no truth in that. He has referred to the Medico Legal Report of Muhammad Zahin co‑accused. It does not show dimension of any injury except the site. There is no material on record that the injury on the person of Muhammad Zahin, co‑accused was result of .12 bore gun as there is no X‑ray report showing that any foreign body has been seen and extracted during medico examination of the person of Muhammad Zahin. The counsel is of the view that the alleged injury on the person of Muhammad Zahin is doubtful. (c) Regarding plea of alibi the learned counsel for the State has contended that the plea is not supported by any documentary evidence. Statements of a few persons have been recorded with considerable delay showing that Lehrasab, petitioner was not present at the place of occurrence. Their contention is that he was present in Islamabad and according to them the distance between the place of occurrence and the place of his business, can be covered by a car/vehicle within 15/20 minutes. (d) Lastly the learned counsel for the respondent contends that the investigation of the case has since been completed. The challan is going to be submitted in the Court. At this stage acceptance of plea of alibi would mean deeper appreciation of evidence which is not permissible in law.

6. I have heard the learned counsel for the parties and perused the record carefully. Admittedly the petitioner is named in F.I.R. Specific role has been attributed to him. He was allegedly armed with 12 bore gun, which he used effectively and caused the death of Abdul Qayyum, deceased. It is a double murder case. The other deceased is Ghulam Mustafa, who has been done to death by causing fire‑arm injuries. The statement of co‑accused Muhammad Zahin has been examined by me at length. A question was put to sthe learned counsel for the petitioner as to who caused injuries on the person of Muhammad Zahin, co‑accused. The answer was that Abdul Qayyum, deceased was armed with 12 bore gun with which he fired at Muhammad Zahin and thus he was injured. This is an important aspect of the case to consider. It is the case of the prosecution that the dead bodies were taken into possession from the place of occurrence, but there is no explanation whatsoever, from the defence that what happened with the .12 bore gun of the deceased as it was not taken into possession from the place of occurrence. At least at this stage it cannot be believed that the deceased Abdul Qayyum was armed with .12 bore gun and fired at Muhammad Zahin, co‑accused. I have also perused the MLR of Muhammad Zahin, co‑accused. It is very interesting to note that as per report of Doctor a multiple injury marks of pellets on the head, forehead, right cheek, eyes and right side of the chest have been found. The dimension of the injuries have not been given. Even the doctor had not directed to have X‑ray and report therefore. There is no report from the doctor that any pellet was extracted from the body of this alleged injured and taken into possession. It was essential to know the genuineness of the injuries of Muhammad Zahin. I do not like to dilate much on this aspect of the case as it may not prejudice the case of either party. It will suffice to say that the analysis of the MLR deeply at this stage may not be in the interest of justice. The statements of the eye‑witnesses supporting the prosecution version with regard to the alleged part played by the present petitioner in the commission of the offence is consistent. In the presence of the statements of eye‑witnesses, who deposed that Lehrasab Khan, petitioner was armed with 12 bore gun, used it effectively and caused the death of Abdul Qayyum, deceased will leave no room to say that the finding of the police about his innocence be upheld. So far as the plea of alibi is concerned, it depends upon oral evidence which can be properly appreciated only during trial.

7. For the foregoing reasons I do not consider Wit a fit case to grant bail, hence it is dismissed. N.H.Q./L‑99/L Bail refused.