2017 PLP 767 (MLD)

SHAHID HAMEED DAR, J.

The allegation against the petitioner, Muhammad Kamil alias Dewan Kamil, as per FIR No.611/15, dated 09.06.2015, under sections 302, 324. 148, 149 P.P.C., Police Station A-Division, Okara is that he being armed with rifle, joined by his armed co-accused, fired at and murdered Khalid Mehmood, a paternal uncle of Muhammad Ikram (complainant) at about 7:30 p.m. on 08.06.2015, when he returned from the mosque after offering maghrab prayer. The motive behind the occurrence was that Khalid Mehmood bid the highest offer for local council's lorry Adda on 06.06.2015, which caused grudge to the accused and they murdered him for this reason alone. The specific attribution to the petitioner is that his rifle's fire shot hit the abdomen of Khalid Mehmood (deceased).

2. Learned counsel for the petitioner has submitted that allegation against the petitioner could not he verified by the investigating officer, who opined that he was not present at the spot at the crucial hour nor he caused any injury to the deceased, but he held him an abettor of the crime, committed by his co-accused; the injury allegedly caused by the petitioner was not found terminal by the medical officer, who performed autopsy on the dead body of the deceased.

3. On the contrary, learned Deputy Prosecutor General Punjab, assisted by learned counsel for the complainant has opposed this application by contending that medical evidence is in line with the eyewitness account which categorically burdened the accused/petitioner with the liability of causing an abdominal firearm injury to the deceased; all the eyewitnesses still support the prosecution case as they did on day one; the opinion of the Investigating Officer is not based on any material nor did it render any strength to the bail-plea of the accused, who had been placed in column No.3 of the challan; further submits that plea of alibi of the accused may be looked into by the learned trial court during the course of the trial; the petitioner and his co-accused have badly hampered proceedings of the trial and learned trial court looked annoyed over it when it passed an order in this regard on 12.03.2016.

4. After hearing the learned counsel for the parties and perusing the record, it is observed that the abdominal injury of the deceased, allegedly caused by the petitioner, did not enter the body-cavity, as is manifest from the operation-notes, submitted by the surgeons, DHQ Hospital Okara, who performed exploratory laparotomy on the body of the then injured and found no internal bleeding in the abdominal cavity or any visceral damage. The autopsy conductor found abdominal walls "normal and healthy", as is mentioned in the necropsy report. The deceased, when alive, was shifted to Mayo Hospital Lahore, where he was operated upon for his leg-injuries, besides, laparotomy wound on his body was reopened on 09.06.2015. The surgeons of Mayo Hospital, as per operation-notes, again found the abdominal viscera intact before debriding the wound. They, however, mentioned in the operation-notes that the abdominal injuries were skin/muscle deep and they found a subcutaneous track between injuries Nos.1 and 3, as mentioned therein, lending an impression of connectivity between the said injuries. The autopsy conductor held lower limbs'firearm injuries, allegedly caused by the co-accused, sufficient to cause death in ordinary course of life. The deceased had, in fact, received two firearm injuries in the abdominal area, one out of which was allegedly caused by the petitioner and the other, by Fakhar Hussain accused.

5. The petitioner underwent physical remand for fourteen (14) days, but it all went waste, as nothing was recovered from him in this interval. The Investigating Officer could not verify the allegation against the petitioner and he opined that he had not taken part in the incident, being physically away to Bismillah Filling Station, Faisalabad Road, Okara. His involvement in this case by way of abetment was not, however, ruled out by him, so he placed his name in column No.3 of the challan.

6. The trial court is certainly the best forum to adjudge evidentiary value of plea of alibi of an accused during the course of his trial, as held by the apex court in Ghulam Ahmad Chishti's case, reported as 2013 SCMR 385, but it may not be made a hard and fast rule or an absolute bar that plea of alibi taken by the accused could not be considered at the bail-stage, as fruit of prohibited-tree. It may not be inappropriate for the court to consider any plea taken by the accused, including that of alibi along with the material produced by the prosecution, but doing it otherwise by considering a particular plea of the accused a taboo, may be, but paradoxical. This plea is not prohibited but takeable at the bail stage, as may be gathered from Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97), Akram Khan v. The State and another (1978 SCMR 242) and Ch.Muhammad Shafi v. Ch.Muhammad Anwar Samma and another (1975 SCMR 219). The Hon'ble Supreme Court of Pakistan restored a bail-granting order of the trial court, made in favour of Meeran Bux accused, who had successfully set up plea of alibi during investigation of a murder case, by setting aside bail-recalling order of the Hon'ble Sindh High Court. Reference in this regard may be had to Meeran Bux v. The State and another (PLD 1989 SC 347).

7. Whether the petitioner obstructed proceedings of the trial, cannot be known from order dated 12.03.2016, as referred to by the learned counsel for the complainant, for learned trial court granted repeated adjournments, "in the interest of justice", during trial for a variety of reasons, not necessarily attributable to the petitioner. He allegedly abetted the crime, as opined by the Investigating Officer, which is not based on any worthwhile incriminating material. His case, for the noted reasons, falls within the ambit of further inquiry as envisaged by section 497(2), Cr.P.C.

8. Therefore, this application is allowed and the petitioner is admitted to post-arrest bail subject to furnishing bail bonds in the sum or Rs.5,00,000/- (five lacs) with two sureties each in the like amount to the satisfaction of the learned trial court. JK/M-140/L Bail granted.