P L D 1976 Lahore 190 (PLP)

A case is registered under section 302/34, P. P. C. and 452, P. P. C. at Police Station Gulberg, Lahore, against the petitioner and Sobail Butt absconder. The allegation against them is that at 12-15 a.m. on the night between the 7th and 8th of June 1974, Sohail Butt absconder armed with revolver and his maternal uncle Muhammad Iqbal Butt petitioner armed with 12-bore gun trespassed into the house of the complainant party and climbed their roof while the members of the complainant party, namely, Shahid Arsbad, Zia-ul-Haq, Mst. Tasneem Firdous and their parents were lying on their cots and talking to one another. Muhammad Iqbal Butt petitioner is stated to have fired his gun and the shot hit the father of the complainant Shahid Arshad on the back. Thereupon, the mother of the complainant sat up and Sohail Butt absconder fired at her through his revolver. The shot hit on her chest. Thereafter, Sohail Butt absconder scaled over the roof on the western side and jumped into the adjoining bun galow whereas Muhammad Iqbal Butt petitioner ran down through the stairs. Thus both these assailants managed to escape. However, when the inmates of the house were raising alarm they looked towards the main gate of their house from the roof and noticed that Muhammad Naqi Butt petitioner brother of Muhammad Iqbal Butt petitioner and maternal uncle of Sohail Butt absconder was standing at the gate in order to guard his companions. When his co-accused came out of the bungalow Muhammad Naqi Butt petitioner is stated to have joined them. Thereafter all the three escaped in a car which was parked on the road at some distance on the western side of the house. They were driven away by another person who was sitting in the car. The mother and the father of the complainant subsequently died in the hospital as a result of the injuries sustained by them. According to the F.

1. R. the occurrence was witnessed by three inmates of the house, namely, Shahid Arshad and Zia-ul-Haq sons of the two deceased in this case and Mst. Tasneem Firdous the daughter of the two deceased. Names of two more persons were also mentioned in the F. I. R. who were stated to be neighbours and who had seen as well as identified the petitioners and the absconder while running away from the scene of crime. These two were Javaid Ahmad and Syed Akhter Hussain. The petitioners were subse quently arrested whereas Sohail Butt became an absconder and was accordingly declared a proclaimed offender. The motive for crime as stated in the F.

1. R. is that Dr. Ikramul Haq, eldest son of the two deceased in this case was married to Mst. Kokab Yousaf, sister of Sohail Butt absconder and niece of the petitioners, in 1971. But the relations between the husband and wife got strained and eventually in 1973 Dr. Ikramul Haq divorced Mst. Kokab Yousaf. Dr. Ikramul Baq was working as a medical practitioner in the United States. After the divorce there was a dispute between the accused and the complainant party regarding the dowry of Mst. Kokab Yousaf. Fourteen/fifteen days prior to the occurrence Dr. Ikramul Haq had come on a vacation to Lahore and two/three days before the present occurrence Sohail Butt absconder and the petitioner had sent some persons to the complainant party in order to settle the dispute respecting the return of dowry. But the attempt was unsuccessful and nothing was settled. It is stated that on the fateful night Shahid Arshad, his brother Ziaul Haq and their deceased father had gone to the Lahore Airport to see off Dr. Ikramul Haq who was returning to the United States. His plane departed at about 10-00 p. m. for Karachi and after seeing him off they had returned to their house at about 11-30 p. m. Thereafter, while they all were lying on their cots on the roof and talking to one another, the said occurrence took place.

2. Muhammad Naqi Butt petitioner is Managing Director of Karawan Travel Agency, Lahore, is an income assessee and a sportsman of international repute. He has been the Secretary of National Federation of Wrestling and Weight Lifting in Pakistan and was a Champion of weight lifting in the sub continent. He represented Pakistan in the Olympic Games in 1948 and, thereafter, participated in the said games until 1970 in his capacity as Manager of different teams. He was also Manager of the Sports Delega tion which visited China in 1966. He was likewise a member of the Execu tive Committee of the Asian Committee of Wrestling and Weight lifting. Muhammad Iqbal Butt petitioner is in construction business and resides in Karachi. He is proprietor of Dean and Company, Karachi. Both the petitioners are brothers and maternal uncles of Sohail Butt absconder.

3. It may be pointed out at this stage that before Muhammad Naqi Butt petitioner was arrested, he had moved a petition for bail before arrest which was dismissed by me vide my order dated the 12th of July 1974, in Criminal Miscellaneous No. 2023/B of 1974. In that application for pre -arrest bail, he had raised the plea of alibi to the effect that on the day of occurrence he was not present in Lahore but had gone to Peshawar in order to advise the North-West Frontier Provincial Government respecting the promotion of wrestling and body-building there. Anyway, he was arrested when I had dismissed his bail before arrest application. Muhammad Iqbal Butt petitioner had , also been arrested. Both the peti tioners at the very outset advanced the place of alibi when the investigation had been initiated. They at the same time took up the position that they had been falsely implicated by the complainant side due to their enmity with the family of the accused party and the relationship of the petitioner with Sohail Butt absconder. However, some months after both the petitioners filed a petition for bail after arrest, namely, Criminal Miscellaneous No. 4012/B of 1974 which was dismissed on the 6th of November 1974. Against the aforesaid order the petitioner moved a petition for special leave to appeal before the Supreme Court. The matter remained pending there until the 2nd of June 1975, when their petition was dismissed. Their Lordships of the Supreme Court while dismissing the petition observed that it was one of those rare cases wherein the accused party had chosen to adduce evidence in support of the defence version at the inquiry stage. It was further observed that the inquiry was going to be concluded in the near future when the accused party would close their defence and that the completion of the inquiry would decide the fate of the case one way or the other.

4. The commitment proceedings in the case against the petitioners were completed and they were committed to stand their trial under section 302/34, P. P. C. before the Sessions Court vide commitment order of the Magistrate, 1st class, Lahore dated the 1st of July 1975. In the commitment order the prosecution evidence has been given side by side with evidence of defence plea of alibi but the learned Magistrate had stated that it was for the trial Court to believe or disbelieve the evidence in respect of the plea of alibi raise by the petitioners. In other words, although the Magistrate recorded the state ments of the witnesses for the defence respecting the plea of alibi he did not give any opinion either way respecting the same but after formally charging and committing the petitioners to stand their trial before the Court of Sessions, he left it for the trial Court to accept or reject the plea of alibi. However, according to him, from the prosecution evidence there was a prima facie case made out under section 302/34, P. P. C. against the petitioners.

5. The present petition for bail was filed on the 20th of August 19%

0. Alongwith this petition was also filed Criminal Miscellaneous No. 546/Q of 1974 under section 215, Cr. P. C. for quashing of the commitment order `But this petition was not pressed and therefore it was dismissed on that ground.

6. It is contended by learned counsel that the plea of alibi had been taken up by both the petitioners from the very beginning i.e. when the case -was in the investigation stage. The petitioners took up the same plea before ,the committing Magistrate and that although they had been in the lock-up for the past more than one year nothing had been recovered from them. The argument of learned counsel is that the plea of alibi of the petitioners has not been properly considered by the investigating agency as well as the committing Magistrate. I pointed out to the learned counsel that in the case of the petitioners it has already been observed by their Lordishps of the Supreme Court that the completion of the inquiry would decide the fate of the case one way or the other. Thus, if the petitioners have been com mitted to stand their trial, a prima facie case is made out against them under section 302/304, P. P. C. and it was for the trial Court to consider the plea of alibi advanced by the defence. It was submitted by learned .counsel that even though the petitioners had been committed to stand their trial, this Court was competent to consider their petition for .bail on the ground of alibi. Reliance was placed on Nadara v. Jamait Khan and another PLD 1968 S C 310 .as well as Nisar Ahmad v. The State P L D 1971 S C 174 . It was submitted that the plea of defence raised during the investigation was inter alia one of the factors which could be considered while determining the question of bail on the .basis of the observations made in Nadara v. Jamait Khan and another..

7. I summoned the record of this case from the Sessions Court and have examined the same. The names of the petitioners have been mentioned ,in the F. I. R. Muhammad Iqbal Butt petitioner has been ascribed the specific part of firing through his gun and his shot hit the father of the complainant on the back. So far as Muhammad Naqi Butt petitioner is ,concerned, in the F. I. R. it was stated that he was empty handed and stood at the gate of the house at the time of the commission of crime but subsequently at the inquiry stage the inmates of the house, namely, Shahid Arshad, Ziaul Haq and Mst. Tasneem Firdous had altered their position by placing a gun in his hand. The only two witnesses who were indepen dent or unconnected and who were stated to have seen and identified the petitioners while running away from the scene of crime, namely, Javaid Ahmad and Syed Akhtar Hussain, it is submitted by learned counsel, did not support the prosecution version and, therefore, they were not produced 'before the Inquiry Magistrate. It is argued by learned counsel that although -the petitioners had been named in the F. I. R. nothing was recovered from them `and the only evidence which could be produced by the prosecution for implicating them was the account given by three highly inimical and interested witnesses, namely, Shahid Arsbad, Ziaul Haq and Mst. Tasneem Firdous. It is submitted that it was a night occurrence and the crime could have been committed by Sohail Butt absconder along with some other companions. According to learned counsel the three inmates of the house ,may be natural witnesses but they were hostile and inimical.

8. Anyway, the real stress of learned counsel was on the plea of alibi raised by both the petitioners. Muhammad Iqbal Butt petitioner had taken the stand that he was present in Karachi (as he resided there and carried on his business there) on the day and time of occurrence. On the 7th of June 1974, he had an appointment with Syed Abbas Hussain Shah, Direc tor General, K. D. A. at 8/30/9-00 a. m. and that he had another appoint ment with him on the 8th of June 1974, at 10-00 a. m. He kept both the appointments. On the 8th of June 1974, in the morning he encashed a cheque from Habib Bank, K. D. A. Branch. On the 9th of June 1974;. he read about the occurrence in the newspapers and came to know that he: had been implicated in this case. He further stated that his plea of alibi was duly checked by the police. He had been writing applications an& sending them to the higher authorities about his innocence. He produced three witnesses in his defence, namely, Wasi-ud-Din P: A. to Director General, K. D. A. Karachi. He stated that on the 8th of June, 1974; Muhammad Iqbal Butt petitioner met Director General, K. D. A. at 10-00 a. m. He also bad an appointment with him on the 7th of June 1974, and met him at 9-30 a. m. He made this statement on the basis of appointments diary maintained by him. Syed Abbas Hussain Shah,. Director General K. D. A. Karachi, who also produced by Muhammad Iqbal Butt petitioner in support of his plea of alibi who stated that on the: 7th and 8th of June 1974, he had appointments with him and he in fact met him on both these days in his office in Karachi. The third defence witness produced was Muhammad Taj-ul-Din of the Habib Bank who stated that on the 8th of June 1974, which was a Saturday, Muhammad Iqbal Butt petitioner encashed cheque at their Bank from his own account. He stated that he saw Muhammad Iqbal Butt petitioner on the 8th of June 1974, in the Bank during the working hours on that Saturday 1. e. 9-00 a. m. to 11-30 a. m. Muhammad Iqbal Butt petitioner had met this witness in order to get his statement of account on that day. It is argued by learned counsel that if according to the prosecution the deceased in the present case were murdered around 12-15 a. m. on the night between the 7th and 8th of June 1974, there was no air service by night or every in the early hours of the morning which could bring back Muhammad Iqbal Butt petitioner to Karachi so that he could have kept his appoint ment with the Director General, K. D. A., on the 8th of June 1974,. at 10-00 a. m. and to encash a cheque at the Habib Bank. According to learned counsel the Director General, K. D. A. Karachi, or second-; Officer Habib Bank. K. D. A. Branch Karachi, or the personal Assis tant to the Director General, K. D. A. Karachi, were responsible persons who had no reason to perjure themselves. It was also submitted that Muhammad Iqbal Butt petitioner was a businessman of repute in Karachi and he took up the plea of alibi at the very outset. It was further sub mitted that Muhammad Safdar S. I. was the Investigating Officer in this matter being attached to Police statement tie went to Karachi to verify the plea of alibi advanced by Muhammad Iqbal Butt petitioner. He met the above-mentioned witnesses, recorded their statements as wells as took into possession copies of certain documents including Photo stat copies of the statement of account and the cheque encashed by Muhammad Iqbal Butt petitioner. This witness further stated that after recording the evidence of alibi of Muhammad Iqbal Butt petitioner at Karachi and of Muhammad Naqi Butt petitioner at Peshawar he did not recommend that both the petitioners should be placed in column No. 2 of the challan because when he had completed his inquiry in Karachi and Peshawar, the challan against the petitioners had already been submitted to the inquiry Court. He stated that the documents produced by him had been handed over by him to the Advocate-General, Punjab, after the investi gation of the defence plea of alibi.

9. Learned counsel has taken me through the evidence respecting the plea of alibi which was produced by Muhammad Naqi Butt petitioner. It consisted of the statements of Nasrullah Khan, Secretary, N.-W. F. P. Wrestling and Weight-lifting Association, Peshawer, Syed Muhammad Ayub President N.-W. F. P. Wrestling and Weight-lifting Association Peshawar who was also owner of Greens Hotel. Peshawar, and Muhammad Adil Khan, Organizing Secretary of the 15th National Games Pakistan, Peshawar. According to this evidence, it was submitted by learned counsel that Muhammad Naqi Butt petitioner in response to an invitation from the N.-W.F.P. Wrestling etc. Association arrived Peshawar on the 6th of June 1974, at 8-15 p. m. and he stayed in Room No. 2, Greens Hotel, Peshawar. He attended the meeting of the Association held on the 7th of June 1974, at 6-00 p. m. In the minutes book maintained by the Association his presence at this meeting was recorded along with others who participated in the same. On the following day i.e. the 8th of June 1974, he along with Syed Muhammad Ayub and Muhammad A il Kban left for Abbottabad after lunch. According to this defence witness Muhammad Naqi Butt petitioner stayed in Room No. 2, Greens Hotel, Peshawar, on the night between the 7th and 8th of June 1974. Learned counsel also placed on record certificates countersigned by the Sales Manager, P. I. A.. Lahore, to the effect that on the 7th of June 1974, according to the P. I. A. Domestic Schedule the afternoon flight from Peshawar to Rawalpindi left at 4-00 p. m. and from Rawalpindi to Lahore the departure time ,vas 8-00 p. m. It is submitted by learned counsel that after the end of the meeting in the evening on the 7th of June, 1974, Muhammad Naqi Butt petitioner could have not returned to Lahore as there was no flight available from Peshawar after 4-00 p. m. It was further pointed out that he even could have not covered this distance on car between Peshawar and Rawalpindi to catch the flight from Rawalpindi at 8-00 p. m. It was submitted that even otherwise if he had left Peshawar by car in the bight of the 7th of June 1974, it was not possible for him to arrive Lahore by 12-15 a. m. on the night between the 7th and 8th of June 1974 when the alleged occurrence took place. It was further submitted that Nasrullah Khan, Syed Muhammad Ayub and Muhammad Adil Khan were responsible officials of the Wrestling and Weight-lifting Association of N.-W.F.P and there was no reason why they should perjure themselves. It was argued that Muhammad Naqi Butt petitioner himself was a sportsman of International repute and he took the plea of alibi at the very outset. His plea of alibi was also checked by Muhammad Safdar S. I. who visited Peshawar and according to his statement, recorded the statements of the aforementioned defence witnesses in support of his plea of alibi. Learned counsel placed reliance on the following authorities :- Nadara v. Jamait Khan and another wherein it was laid down that ordinarily framing of a charge furnished the grounds for belief that an accused person was guilty of such offence, but nevertheless a person committed may be allowed bail in an exceptional case if evidence prima facie made out that such reasonable grounds did not appear. Nlsar Ahmad v. The State it was held respecting grant of bail to accused after his commitment for trial of non-bailable offence, that the accused could pray for bail even after his commitment if he could show that his commitment was not based on reasonable grounds. In Mst. Jantan Bibi v. Sher Muhammad and another PLD 1968SC310 , leave was refused by the Supreme Court when a person accused of murder had been allowed bail on his plea of alibi even though it was contended that alibi evidence was not produced before the committing Magistrate. In that case the accused had pleaded that on the day of occurrence he had gone to Dera Ismail Khan town where he received a cheque from the Deputy Commissioner and had encashed it on the same day at the Habib Bank. In Muhammad Roshan v. Ahmad Khan and another P L J 1974 Cr. C (Lah.) 185 the accused person was granted bail on the ground of alibi based on a letter issued by a Major in the armed forces in proof of his alibi. It was held that the lower Court was justified in placing reliance on the letter issued by a , Senior Military Officer in proof of alibi of the accused as he had no reason to perjure himself. In Muhammad Hussain v. Muhammad Anwar Ahmad Khan and another 1975 S C M R 151 bail was allowed in non-bailable offence on the plea of alibi raised by the accused and affidavits in support thereof sworn by twenty advocates purporting to show that on the day of occurrence the accused was in Lahore from 4-30 p.m. to 70,00 p.m., 15 miles away from the scene of crime which was allegedly committed at 5--10 p.m. In Sh Muhammad Shafi v. Ch. Muhammad Anwar Samma and another 1975SCMR219 bail was allowed on the plea of alibi of accused supported by affidavits of 24 members of the Provincial Assembly implying impossibility of the presence of the accused at the scene of crime at the given time.

10. I have carefully examined the arguments raised by learned counsel. In support of the plea of alibi of the petitioners responsible officials have been produced and their statements have been recorded not only by the police at the investigation stage but also by the committing Magistrate and prima facie there is no reason why such responsible persons should perjure themselves. The alibi evidence was produced before the committing Magistrate who has given an account of the same along with the prosecution evidence in the commitment order. But the committing Magistrate was not competent to evaluate the evidence on the two sides for determining the guilt or innocence of the petitioners. It is indeed correct that evidence cannot be sifted for the purposes of giving any final decision on the question of alibi at this stage for it would be the responsibility of the trial Court for eventually deciding the correctness or otherwise of the plea of alibi. Nevertheless the plea of defence raised during the investigation and also at the commitment stage is one of the factors which' could be taken into consideration while determining the question of bail. I have already observed that in support of their plea of alibi the petitioners have produced in defence responsible officials who have prima facie no reason to perjure themselves. The Committing Magistrate after taking down the evidence on both the sides has formally charged and, committed the petitioner with the observation in the commitment order that it was for the trial Court to believe or disbelieve the evidence in support of the plea of alibi raised by the petitioners and that from the prosecution evidence there was a prima facie case made out under sec tion 302134, P. P. C. against the petitioners. it is true that he was not competent to evaluate the evidence on this point for determining the guilt or innocence of the petitioners. However this Court is competent to allow bail to the petitioners even after commitment if evidence as a whole prima facie makes out that such reasonable grounds do not appear for believing that the petitioners were guilty of an offence the punishment of which could be death or imprisonment for life. Reliance is placed on Nadara v. Jamait Khan and another (P L D 1968 S C 310).

11. In the light of what has been discussed above the petitioners are admitted to bail subject to their furnishing security in the sum of Rs. 20,000 (Rupees twenty thousand only) each with two sureties each in the like amount to the satisfaction of the Assistant Commissioner, Lahore. This petition stands disposed of accordingly. S. Q. Petition accepted