1985 P Cr (PLP)

(1) That in view of the provision of section 497(1), Cr.P.C. the bail cannot be granted to the petitioners as there appear reasonable grounds for believing them to be guilty of the offences punishable with death or transportation for life because there is evidence of as many as six eye‑witnesses involving them in the commission of the offences with which they are charged. (2) That the petitioners are rich and influential persons and their relatives are occupying high official positions in the Government who are already exerting their influence to save the accused from the consequences of their criminal acts committed by them and are threatening and approaching the witnesses of the prosecution in the case and thus the prosecution will be prejudiced if the petitioners are released on bail in which case it would also be not possible to arrest the absconding accused. (3) That the affidavits filed on their behalf in support of their plea of alibi do not indicate the absence of the petitioners at the time of occurrence because their contents at the most go to show that they were seen in the premises of the District Courts about half an hour before the occurrence and since the distance between the District Courts and the scene of occurrence is only two and half miles which can be easily covered with five minutes by travelling on cars, the petitioners could participate in the commission of the crime after having left the premises of the District Courts, (4) That the plea of alibi cannot be taken into consideration at the bail stage and it is for the trial Court to give decision on its truthfulness or otherwise after sifting the evidence that may be produced in this behalf before it. In support of this contention reliance was placed on P L D 1974 S C 83, N L R 1982 U C 135, 1975 P Cr. L J 133, P L D 1971 S C 324; N L R 1978 Criminal 298 and 1968 S C M R

924. After giving our due consideration to the submissions made by the counsel for the parties and going through the record of the case and the decisions cited at the bar, we are of the opinion that the cases of Muhammad Zaman and Mangti, petitioners require further inquiry with the result that they, as a matter of right, become entitled to the concessions of bail pending such inquiry under the provisions of section 497(2), Cr.P.C. The plea of alibi raised by the above petitioners, prima facie, appears to be a reasonable possibility when the same is considered in the light of the affidavits filed by three senior Advocates and a clerk of the Court of the District and Sessions Judge in support thereof. We may here give summary of each of the above affidavits. Mr. B. A. Sheikh, Advocate in his affidavit has stated that after attending the weekly religious preaching (Daras) held in the District Courts' premises which ended at about 15 to 20 minutes past 9.00 a.m., he came to the office of the clerk of the Court of District and Sessions Judge to find Muhammad Zaman and Mangti petitioners sitting there and that he remained there for about 10 to 15 minutes during which period he had also chat with Muhammad Zaman petitioner who alongwith his said companion was still sitting in the said office when he left it. The affidavit of Raja Muhammad Siddique Khan, Advocate is to the effect that he was a counsel of the petitioners, Muhammad Zaman and Mangti in their election petitions pending in the Election Tribunal and that Mangti petitioner came to his office on 9‑4‑1984 which was the date fixed for the hearing of the aforesaid petitions to inform him that 14‑4‑1984 had been fixed as next date of hearing in their cases due to the absence of the District and‑‑ Sessions Judge and that 10 to 15 minutes after this somebody told him that the firing had taken place between the party of Muhammad Zaman petitioner and his opponent party as a result of which someone had been killed. The affidavit filed by Ch. Ali Muhammad, Advocate contains the deposition that Muhammad Zaman, petitioner and Jalil absconding accused met him near the Court of the District and Sessions Judge at about 15 minutes past 9.00 a.m. and that later on at about 45 to 50 minutes passed 9 a.m. he heard one Muhammad Aslam asking Nawabi, S.H.O. in the Courts' premises to arrest Muhammad Zaman as he had a hand in the occurrence. Muhammad Sarwar, clerk of the Court has deposed in his affidavit that on 9‑4‑1984, Muhammad Zaman and Mangti came to his office in connection with their cases and that about 5 to 7 minutes after they left his office after taking dates in their cases he, while going towards the office of the Revenue Assistant heard the noise that the firing had taken place in which two persons had died and that the police should go to spot. The contents of the above affidavits filed on behalf of the petitioners in support of their plea of alibi go to show that Muhammad Zaman and Mangti petitioners had attended the Court of the District and Sessions Judge, Mirpur on the day of occurrence to appear in their election petitions filed against some of the Members of the complainant party which fact also stands proved by the entries in the copies of the, orders made in their cases by the Reader of the Court and placed on the record; that the above petitioners were present in the office of the clerk of the Court of the District and Sessions Judge at about 9.30 a.m. on the day of occurrence; that within 10 to 15 minutes after they were last seen in the premises of the District Court, the news of‑ the occurrence had reached the said premises; that at about 9.45 a.m. on the date of occurrence, one Muhammad Aslam had informed the S. H. O. Mirpur named Nawabi in the premises of the District Courts about the occurrence having taken place and had asked him to arrest Muhammad Zaman petitioner because of his having a hand in the commission of the crime. It is, of course, true that the time of the presence of the above petitioners in the premises of the District Court, Mirpur, as given in the affidavits under discussion, is mostly based on the estimation of their deponents but the same appears to be the case with regard to the time of occurrence, as alleged by the prosecution. In the F.I.R., the time of occurrence is given at about 10.00 a.m. which is again based on the guess or estimation of the complainant which can also be few minutes earlier than that. The exact timing of the occurrence is very essential to be determined in this case which, of course, would be the function of the trial Court to do, in view of the plea of alibi and some circumstances appearing in the case. In the post‑mortem report, the time of examination of the dead body is entered as 10‑15 a.m., although subsequently on inquiry by the investigation agency, the Doctor has explained that to be the time of his declaration of the death, of the deceased. Similarly in column 3 of the inquest report, the time of information about the occurrence has been entered as 10.00 a.m. Thus in the circumstances mentioned above, both the exact time upto which the said petitioners remained in the District Courts and also the exact time when the occurrence took place are essential to be determined so as to come to any definite finding on the truthfulness or otherwise of the plea of alibi raised by the petitioners but presently for the purpose of the consideration of the bail application on the basis of the plea of alibi, the affidavit of Raja Muhammad Siddique Khan, Advocate which also finds support from the affidavit of Muhammad Sarwar, Clerk of the Court of District and Sessions Judge appears to be very important and significant which cannot be lightly brushed aside and which is to the effect that within 10 to 15 minutes after the Mangti petitioner had got him noted the next date of hearing of his case, he came to know that the firing between the petitioner Muhammad Zaman's party and his opponent party .had taken place resulting in the death of one person. The distance between the place of occurrence and the District Courts is admittedly not less than two and half miles and thus the possibility of the petitioners not being present at the scene of occurrence at the time of the incident is not altogether ruled out in the light of the above affidavits to the effect that the said petitioners were present in the premises of the District Courts, Mirpur within 10 to 15 minutes prior to the reaching of the news of the occurrence to the District Courts. It cannot be denied that some time must have taken the news of occurrence reaching the District Courts which fact further reduces the aforesaid period of 10 to 15 minutes which, according to the aforesaid affidavits, were available to the petitioners for reaching the place of occurrence after leaving the Courts premises for the purpose of participation in the crime alleged to have been committed by them. The learned counsel for the petitioners did not in any way impeach the credibility of the affidavits referred to above but contended that the place of occurrence being only two and half miles away from the District Courts, the petitioners could easily reach there within five minutes by travelling on cars after having left the District Courts' premises. But at this stage, in absence of any material regarding the actual distance between the place of occurrence and the District Courts, the traffic conditions at the relevant time and mode of travel that might have been adopted by the petitioners, it is neither possible nor proper for us to express any opinion as to whether or not it was practicable for the petitioners to have committed the alleged offences after having left the Court's premises. Such a determination shall be required to be made by the trial Court after taking into consideration the material brought on record by the parties in this regard. We, at this stage, are only required to make a tentative assessment of evidence produced in support of the plea of alibi put forth by the said petitioners after the consideration of which coupled with the surrounding circumstances of the case, we are inclined to feel that the plea of alibi raised by the petitioners is a reasonable possibility thereby bringing their cases within the purview of subsection (2) of section 497, Cr.P.C. needing further inquiry and consequently entitling them to the concession of bail till such inquiry. However, it would be for the trial Court to come to any conclusive finding about the veracity or otherwise of the plea of alibi raised by the petitioners and till that is done we, on the basis of the tentative sifting of the evidence brought on the record by the petitioners in the shape of affidavits sworn by three Senior Advocates about whom there is nothing on the record to indicate that they are in any way interested in the matter, cannot avoid the persuasive force of the aforesaid affidavits and refuse bail to them. We have carefully read the rulings of the Superior Courts of Pakistan with respect to the plea of alibi taken by the accused therein for the purpose of securing bail, cited by the learned counsel for the parties. The proposition of law enunciated in them is that the plea of alibi can be taken into consideration for the purpose of considering bail and a tentative assessment of its evidentiary value is quite permissible and if on the basis of such assessment the same appears to be a reasonable possibility then the accused raising such a plea becomes entitled to the grant of bail, as a matter of right, under section 497(2), Cr.P.C. and that it is for the trial Court to finally decide such a plea after undertaking elaborate sifting and deeper appreciation of the evidence produced in support and rebuttal of the same by the defence and prosecution, respectively. In a case entitled 'Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and others' 1975 S C M R 219, the Supreme Court refused to interfere with the order of the High Court granting pre‑arrest bail to Ch. Muhammad Anwar Samma, petitioner in the case on the basis of the plea of alibi supported by the affidavit of 24 Members of the Provincial Assembly. In another case 1975 S C M R 151, the application for the cancellation of bail granted to Muhammad Anwar Ahmad, respondent by the High Court on the basis of the plea of alibi supported by affidavits sworn by 20 Advocates, was rejected by holding that the plea in the circumstances of the case was good enough to justify the release of the said respondent‑accused on bail by the High Court. Similarly, in a case titled 'Khalid Javed Gilani v. State' P L D 1978 S C 256, the Supreme Court on an appeal filed against an order of the Lahore High Court dismissing the petitioner's application for bail, released him on bail on the basis of the plea of alibi supported by an affidavit of disinterested medical practitioner of high repute having no ostensible connection with the petitioner holding that in the absence of the proof of Doctor s evidence being not fit to be relied upon the bail to the petitioner could not be refused. Of course, that there were cases where the superior Courts refused to grant bail to the accused persons on the basis of the plea of alibi raised by them out of which few reported in P L D 1974 S C 83, 1975 P Cr. L J 133, P L D 1971 S C 124 and N L R 1978 Criminal 298 have been referred by the learned counsel for the State and complainant but the facts and circumstances of those cases are quite distinguishable from the case in hand. Even the aforesaid cases do not lay down the rule that the bail is prohibited on the basis of the plea of alibi and, rather in 1975 S C M R 219, the remarks of the High Court that the case entitled 'Iqbal‑ur‑Rahman v. State' P L D 1974 SC 83 does not spell out an absolute bar in the way of the High Court considering the effect of the plea of alibi for the purpose of bail, was upheld by the Supreme Court. For the reasons stated above, finding the cases of the petitioners Muhammad Zaman and Mangti one that of further inquiry, we allow them bail in the sum of Rupees one lac each with two sureties of the like amount each to the satisfaction of any first class Magistrate, Mirpur. As regards the bail application for Feroze petitioner, we do not find any good ground for releasing him on bail. His bail has been sought mainly on the grounds that he is an old person of more than 70 years of age who is also suffering from throat cancer and that in the F.I.R. only 'Ialkara' is attributed to him and no weapon of offence has been recovered from him. We do not find any substance in these contentions. From the report of the Doctor, it appears that this petitioner is only suffering from Recutive hyperplisa‑Tonsil which ailment is not so critical or grave which may entitle him to be released on bail under proviso to subsection (1) of section 497, Cr. P. C. In the circumstances of the case his mere old age per se does) not entitle him to the concession of bail as visualised by the aforesaid provisions of law because there is nothing on the record to show that he is either so sick or infirm that the discretion to grant bail may b exercised in his favour. It is also not correct that only 'lalkara' is attributed to him. He is also accused of firing at the complainant party. However, he will be at liberty to apply afresh to the trial Court for bail if he really becomes so sick or infirm, so as to be covered by the aforesaid provision of law. Accordingly, his bail application is rejected. M. Y. H Bail refused.