1997 PLP 1829 (SCMR)

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑This order will dispose of Criminal Petitions Nos. 11‑P and 12‑P of 1997, which have arisen out of the same incident.

2. At 3‑10 p.m. on 19‑10‑1996 and F.I.R. was registered at Police Station, Chamkani, Tehsil and District Peshawar, on the basis of Murasila recorded by Zar Khan, S.I. at Casualty Ward of Lady Reading Hospital, Peshawar, concerning the murder of Abdul Haseeb, Advocate, wherein four real brothers, namely, Kamran Siddique, Laiq Siddiq, Irfan Siddiq and Arshad Siddiq were named as assailants. It was alleged in the F.I.R. of occurrence taken down at the instance of Malik Muhammad Saleheen that he alongwith the deceased left Nowshera for their village Nasirpur by Car No.PRM‑

689. The deceased was driving the Car while the complainant was occupying the rear seat. At about 2:30 p.m. when they reached near the Bungalow of Arbab Muhammad Ayub Jan, a Suzuki Car of white colour wherein the accused were occupying the seats duly armed overtook them. Accused Kamran Siddique fired at the deceased hitting him on his occipital region in consequence whereof the car fell in a ditch. The complainant had luckily escaped unhurt. The application for pre‑arrest bail of Kamran Siddique and Laiq Siddique was rejected on 13‑11‑1996 by the learned Sessions Judge, Peshawar. The four accused then approached Peshawar High Court, Peshawar, and succeeded in securing therefrom ad interim pre arrest bail on 30‑11‑1996 with the direction to appear on 28‑12‑1996 before the learned Sessions Judge, Peshawar. By his order dated 15‑2‑1997, the learned Sessions Judge, Peshawar, confirmed the ad interim pre‑arrest bail granted to Kamran Siddique and Laiq Siddique but recalled the ad interim pre‑arrest bail of Arshad Siddique and Irfan Siddique.

3. Feeling aggrieved, Arshad Siddique and Irfan Siddique moved in the High Court a petition for bail while Malik Muhammad Saleheen, complainant, filed petition for cancellation of bail granted to Kamran Siddique and Laiq Siddique. A learned Judge in Chambers of the High Court while granting bail pending trial to Arshad Siddique and Irfan Siddique dismissed the plea of the complainant for cancellation of bail granted by the learned Judge to Kamran Siddique and Arshad Siddique. Malik Muhammad Saleheen complainant feeling aggrieved, moved the two Criminal Petitions for Leave to Appeal one for cancellation of bail granted to Kamran Siddique and Arshad Siddique while the other one for cancellation of concession of bail extended to Arshad Siddique and Laiq Siddique.

4. A perusal of the impugned order shows hat the plea of alibi raised by Kamran Siddique and Laiq Siddique was entertained by the learned Judge in the High Court which prima facie lent support not only from "the examination of the original Passports, P.I.A. Tickets and other documents produced by the learned counsel for the respondents but was also augmented by the report of the ASDPO, Chamkani dated 22‑12‑1996", implying that at the time and day of the occurrence the two respondents were in Saudi Arabia in connection with the performance of 'Umra'. It may be advantageous to note that in the F.I.R. the single fatal fire shot has been attributed to Kamran Siddique whose plea of alibi and that of Laiq Siddique had found favour with the learned Sessions Judge duly affirmed by the learned Judge in the High Court. The concession of bail was extended to Arshad Siddique and Irfan Siddique "in view of benign role attributed to them in the F.I.R. and the plea of their co‑accused, their involvement in the crime requires further inquiry within the contemplation of section 497(2) Cr.P.C." and further that "they could not be saddled with common intention at this stage".

5. Mr. Jehanzeb Rahim, learned Advocate Supreme Court, appearing on behalf of the petitioner in both the petitions contended, in the first place, that the learned Judge in the High Court was in error in proceeding to adjudicate upon the plea of alibi of two of the four accused‑respondents and that in any case the learned Judge had completely ignored the infirmities and loopholes in the plea of alibi taken note of himself. In support of his submissions, the learned counsel has placed reliance on (i) Muhammad Yaqub v. Iltafur Rahman and another (PLD 1974 SC 83), (ii) Muhammad Fiaz v. The State (PLD 1993 Peshawar 173) and Bahadur v. Muhammad Latif and others 1987 SCMR 788). Having considered these three rulings of this Court, obviously proceeding on distinguishable facts, in which the plea of alibi raised by the accused‑petitioner named in a case of murder was not considered good enough to justify his enlargement on bail. In the first mentioned case in which a case of plea of alibi raised by the petitioner therein was not repelled so much on the principle that the plea of alibi could not at all be adverted to by the Court but to examine at the relevant stage whether it was a case where there were, or were not, reasonable grounds for believing that the respondent was guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. In point of fact the learned Judges in Iqbalur Rehman's case (supra) had alluded to the allegations contained in the dying statement of the deceased therein according to which the respondent was not only present at the spot, but he was also armed with a gun and had actually killed the deceased by firing at him. Obviously, the learned Judges had not laid down the proposition that in every case where the plea of alibi is raised on behalf of the respondent it cannot at all be gone into at the bail stage. The next case of Muhammad Fiaz (supra) equally proceeds on different facts inasmuch as the plea of alibi did not find favour with the learned Single Judge in the High Court which was held to be doubtful. In the case of Bahadur (supra), it was pleaded before the learned Additional Sessions Judge that on the fateful day respondent therein had attended a marriage ceremony in village, Budha, Tehsil Ferozewala, District Sheikhupura, throughout the day and this fact had been affirmed by a police officer. It was in this background that the learned Judges had observed that there was no denying the fact that the respondent therein had been directly charged in the promptly lodged F.I.R. for having killed deceased therein with a rifle shot. As to the plea of alibi, it was the view of the learned Judges that the alleged theory of alibi is still to stand the test of scrutiny on the basis of evidence. It would thus be noticed that it was nowhere held that in all the cases where the plea of alibi is raised in the bail matter it has to be outrightly rejected and cannot at all be gone into for the purpose of grant or refusal of bail.

6. Qazi Muhammad Anwar, learned Advocate Supreme Court, appearing for the respondents, on the other hand, invited our attention to the precedent of Said Akbar and another v. Gul Akbar and another (1996 SCMR 931), in support of the proposition 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 justified the finding in favour of grant of bail notwithstanding the fact the Honourable Chief Justice of this Court and the learned Judge constituting the Bench had declined to grant bail for two‑fold reasons stated therein.

7. We have already referred to the discussion of the three relevant' authorities referred to by the learned counsel for the petitioner in the petitions but see no reason to come to the conclusion that the learned Judge in the High Court had acted unreasonably or perversely in declining the cancellation of bail to the two accused‑respondents and granting bail to the two other respondents in the two petitions. The crux of the matter is that the learned Judge in the high Court had himself "examined the Passport, P.I.A. Tickets and other documents" produced by the learned counsel for Kamran Siddique and Laiq Siddique and had C reached the conclusion that the plea of alibi taken by the said respondents was not only prima facie supported by the documents available on the record but was augmented by the report of ASDPO Chamkani recorded by him on 22‑12‑1996. In so far as the case of Arshad Siddique and Irfan Siddique is concerned, as stated earlier, the role attributed to them in the F.I.R. and the plea of alibi of their co‑accused was considered and thereafter their involvement in the offence was held to require further inquiry. Accordingly, we see no ground for interference and dismiss the two petitions.

8. Before parting with this case, we would, however, like to point out that the learned trial Judge would be at liberty to examine the evidence adduced before him during the trial and come to his own independent conclusion irrespective of what has been observed by the trial Court during grant or refusal of bail to the respondents. N.H.Q./M‑31/S Leave refused.