1989 P Cr (PLP)

I have considered the contentions of the learned counsel. Admittedly, the' allegations made in the F.I.R. are general in nature. It is not mentioned in the F.I.R. as to who was responsible for the fatal injury caused to the deceased. The affidavits filed by complainant Ch. Hameed Ullah, his two sons, and other witnesses clearly exonerated the present applicant. It will be worthwhile to mention here that the witnesses who had filed their affidavits before the trial Court were called by the learned trial Judge in the Court and they had admitted the contents of their affidavit except P.W. Sadiq who had admitted the contents with some reservation. The 161 Cr.P.C. statements of witnesses who were examined by A.S.I. Mohammad Alam at Peshawar were also produced before the learned trial Judge in support of the plea of alibi raised by the applicant. Unfortunately, those original statements were not available in the police papers but on inquiry the S.H.O. explained that those statements were available with the D.S.P., as the inquiry regarding the plea of alibi was held under his orders. Be' that as it may, the fact remains that the plea of alibi was raised by the applicant at an initial stage and it was supported not only by ocular evidence but by documentary evidence as well. Applicants Mohammad Ayub, Shamim Hussain, and Hakim Shah were granted bail by this Court on merits in September, 1987 and October, 1988. The case of the present applicant is identical to that of the above three accused. In the case of Mohammad Fazal alias Bodi v. The State 1979 S C M R 9 it was observed by their Lordships of the Supreme Court that:‑ "The co‑accused to whom a role similar to that of the petitioners was attributed had been released, the petitioner was also entitled to bail on the principle of requirement of consistency in the same case." and the petitioners arc released on bail. In the case of Abdus Salam v. The State 1980 S C M R 142 it was observed by their Lordships of the Supreme Court that: "Courts to maintain equity of treatment between the persons placed in similar situation and similar circumstances. No distinction between the case of petitioner and the case of co‑accused, since released on bail, privilege of bail, held, should not have been refused to petitioner." and the petitioner was ordered to be released on bail. In the case of Shafiqan v. Hashim Ali and another 1972 S C M R 682, the respondent was granted bail by the High Court observing that there are counter versions and it is yet to be seen as to who is aggressor, and whether the respondent had committed the offence punishable with death or transportation for life. Mst. Shafiqan mother of deceased filed petition for Special Leave to Appeal but the same was dismissed by the Hon'ble Supreme Court. In the case of Jaffer and others v. The State 7980 SCMR 789 it was observed by their Lordships of the Supreme Court that:‑ "Material on record not showing as to which of the accused caused fatal injury leaving room for consideration regarding common intention of other accused to kill deceased, held, case one of further inquiry and bail was allowed." In this case there were counter‑versions and one of the accused had also received injuries in the fight. In the case of Rehmat Ali and another v. The State 1979 S C M R 30 the complainant in the case had resiled from his version as given in the F.I.R. and exonerated the accused, likewise eye‑witnesses had also filed affidavits exonerating the applicant, and it was observed by their Lordships of the Supreme Court that:‑ "But without commenting as to what weight, if any, can and ought to be attached to the above‑mentioned statement of the complaint and the affidavits relied upon by the petitioners in support of his plea for bail. we are inclined to think at this stage at least it is difficult to say if the petitioners have committed the offence. More particularly, when the complainant himself seems at the moment to disown the prosecution case. In the circumstances of this case, we think that the case of the petitioner is one of 'further inquiry' under section 497(2), Cr.P.C. and the petitioners are released on bail:" In the case of Allah Bux v. Nazar Hussain Shah and another 1979 S C M R 137 it was observed by their Lordships of the Supreme Court that:‑ "Affidavits filed by the alleged eye‑witnesses exculpating the respondent from commission of crime to be considered by the trial Judge in concluding whether the respondent could be said to have been connected with the crime and the High Court while considering the above material in reaching the conclusion whether the respondent could be said to have been connected with the offence in view of the affidavits filed by the eye‑witnesses was right in considering that this was a case of further inquiry under section 497(2), Cr.P.C. and consequently it was not the case in which bail could be refused to the respondent." and the petition for Special Leave to Appeal was dismissed. Similar view was taken by this Court in 1986 PCr.LJ

433. As far as the plea of alibi taken by the applicant was concerned, it was taken at an early stage during the investigation and it was prima facie supported by ocular as well as documentary evidence. There are numerous cases in which their Lordships of the Supreme Court have been pleased to grant bail on the plea of alibi and in certain cases have refused to interfere where the bail was granted by the High Court on the plea of alibi. It will be appropriate to mention some of the cases:‑ Ch. Mohammad Shafi v. Mohammad Anwar Sama 1975 S C M R

219. Mst. Jannatani Bibi v. Syed Mohammad and another 1968 SCMR

795. Ali Sardar v. Gul Moeen and another 1981 S C M R

860. Manzoor and another v. The State 1986 P Cr. L J

460. In view of the above factual as well as legal position I am of the considered view that the case of the applicant requires further inquiry, and therefore. I direct that the applicant shall be released on bail on furnishing surety in the sum of Rs.1,00,000 (Rupees One Lac) only and P.R. Bond in the like amount to the satisfaction of Nazir of this Court. The observations made by me are tentative in nature, and the learned trial Judge will hear and decide the above case uninfluenced by whatever has been said or observed in the above order. MA.K./A‑423/K Bail granted.