P L D 2006 Lahore 689 (PLP)

M. BILAL KHAN, J.

Arshad Mehmood (Muhammad Arshad) son of Ch. Ghulam Rasool, the petitioner, seeks post-arrest bail in case F.I.R. No.633 of 2002 dated 16-11-2002, registered at Police Station Saddar Mandi Baha-ud-Din, for offences under sections 302, 324, 148, 149, .109, P.P.C. read with section 7 of the Anti-Terrorism Act, 1997.

2. The case of the prosecution as it unfolded in the F.I.R. registered at the instance of Saee Muhammad son of Mutalli was that he was a resident of village Gohar, however, for the last 18/19 years he and his brother Mukhtar Ahmad were permanent residents of Purani Pindi and had been residing in their personal residential house; on 16-11-2002 about 4-40 p.m. he, his brothers Mukhtar Ahmad and Anara, along with his maternal nephews Liaquat son of Umar and Tariq Aziz son of Ghulam Rasool were proceeding from their cattle-shed to their house in order to break the fast; his brother Mukhtar Ahmad and maternal nephew Tariq Aziz were ahead of them whereas he and his brother Anara and nephew Liaquat were a few paces behind them; they had hardly reached Kharian Road opposite the house of Ch. Akram Gondal when all of a sudden from the northern side a green coloured car arrived; it pulled alongside Mukhtar Ahmad and Tariq Aziz; Muhammad Arshad son of Bati, Muhammad Arshad alias Kukku son of Ghulam Rasood (petitioner) Liaquat, Ghulam Rasool and Ghulam Ali sons of Shana residents of Purani Pindi armed with Kalashnikovs disembarked from the car. Arshad son of Bati fired with his Kalashnikov which hit his brother Mukhtar Ahmad on the external side of his right thigh; Muhammad Arshad alias Kukku fired with his Kalashnikow which hit his father on his head; Ghulam Rasoold fired straight shot which hit his maternal nephew Tariq Aziz on his buttock; thereafter, all the five accused persons fired with their respective Kalashnikos at Mukhtar Ahmad and Tariq Aziz which hit on various parts of their bodies; they fell on the ground in a seriously injured condition; Mukhtar Ahmad succumbed to his injures at the spot whereafter all the five assailants boarded their car and proceeded towards Mandi City while raising lalkaras; Tariq Aziz who despite being seriously injured was still alive was removed by his brother Anara and maternal nephew to Mandi Hospital. According to the complainant the incident had been witnessed by him and his brother Anara and Liaquat. The motive behind the occurrence was that Arshad alias Kukku (petitioner) was in possession of a shop situate at village Bhikhi belonging to his maternal cousin; the said shop had been purchased by Mukhtar from the maternal cousin of Arshad alias Kukku some time back. His brother Mukhtar Ahmad wanted to take the possession of the said shop on account of which all the five assailants after due deliberation and consultation with each other and with the connivance and conspiracy of Ghulam Rasool son of Ghulam Ahmad had committed the murder of Mukhtar Ahmad and had seriously injured his maternal nephew. Tariq Aziz. According to the complainant, Aurangzeb son of Khan Muhammad has seen all five of the assailants hatching a conspiracy in furtherance of their common object to kill the deceased. Resultantly the instant F.I.R. had been recorded.

3. The petitioner was arrested on 28-10-2004 and is in custody ever since. His application for post-arrest bail had been turned down by the learned Addl. Sessions Judge, Mandi Baha-ud-Din vide his order dated 16-2-2006. Hence the instant petition.

4. I have heard Syed Zahid Hussain Bokhari, Advocate, the learned counsel for the petitioner. Ch. Majid Hussain, Advocate, the learned counsel for the complainant as also Mr. Tanvir Ahmad Shami, Advocate for the State and have perused the record brought by Aziz Ahmad S.I. Police Station Saddar Mandi Baha-ud-Din.

5. It has been observed that after procuring ad interim pre-arrest bail from the Court of learned Special Judge Anti Terrorism Court the petitioner had appeared before the police and had joined investigation. It has also been observed that right from the day one the petitioner had raised plea of alibi to the effect that on the fateful day he was not present in Pakistan and was in Dubai. On 19-12-2002 the Investigating Officer got the passport and the exit entry thereon verified from Faisalabad Passport Office and found the plea of the petitioner to be correct Muhammad Anwar, D.S.P., the Circle Officer, also verified the investigation conducted by the Investigating Officer. The record reveals that on the advice of the District Attorney section 7 of the Anti-. Terrorism Act, 1997 had been deleted vide Zimni No.25 dated 13-12-2002. According to the record, the petitioner had been arrested on 28-10-2004. After arrest his plea of alibi had been verified once again whereafter the investigation of the case was transferred on the recommendation of the Standing Board and the same was entrusted to Ahmad Khan Inspector Regional Investigation Branch, Gujranwala, who also verified the plea of alibi and held the petitioner to be innocent. His investigation had been further verified by S.P. Regional Investigation Branch vide Zimni No.108 dated 1-2-2006. He too had held the petitioner to be innocent. It is also available in the record vide Zimni No.109 that investigation conducted by Ahmad Khan Inspector and verified by S.P. Regional Investigation Branch had later on been approved by D.I.-G. Gujranwala Range vide his order No.77-RIB dated 20-3-2006. According to the police file the petitioner's father Ghulam Rasool who had been attributed the role of conspiracy had also been held to be the innocent by the police.

6. It is true that normally the Courts are reluctant to consider plea of alibi at bail stage but it is not a principle of universal applicability and in appropriate cases where a strong plea of alibi has been put forward without any loss of time and the same has been found to be authentic, this Court as also the Hon'ble apex Court have been extending the concession of bail. In Khalid Javaid v. The State PLD 1978 SC 256 and in the case of Malik Noor Ahmad and others v. The State PLD 1993 Lah. 500 bail was allowed on the plea of alibi. In case of Iqbal Ahmad and 2 others v. The State 1989 PCr.LJ 2122 bail was allowed to the petitioner who had taken the plea of alibi which was supported by documentary evidence as well as by the testimony of respectable persons examined by the police. In the case of Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97 the Hon'ble apex Court observed that bail could be granted in a case of capital charge on the plea of alibi if peculiar facts and circumstances of the case so justified.

7. Ipsi dixit of police is not binding on the Courts but at the same time it has to be remembered that finding of the Investigating Officer if based on cogent and tangible material is a relevant consideration for the grant of bail.

8. The contention of the learned counsel for the complainant that since the trial has commenced, therefore,' bail may not to be granted at this stage is devoid of force inasmuch it is now well-settled that commencement of the trial or likelihood that it will commence shortly will not deter this court in extending the concession of bail if otherwise on merits the petitioner is entitled to the said concession. In view of the peculiar facts and circumstances of the case and especially in view of the successive opinions of innocence rendered qua the petitioner his case has become one of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C.

9. Resultantly this petition is allowed and the petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs.100,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the learned trial Court.

10. Before parting with this order, it may be observed that the observations recorded hereinabove are tentative in nature and are not designed to influence the trial in any manner whatsoever. S.M.B./A-131/L Bail granted.