2002 PLP 137 (YLR)

Malik Saeed Ijaz and Sadiq Mahmood for Petitioners. Sardar Ahmad Khan for the Complainant. M. A, Farazi for the State. The petitioners seek post-arrest bail in case F.I.R. No. 279 dated 10-11-1999 under sections 302/148/149/109, P.P.C. registered at Police Station Saddar Ahmadpur East.

2. Briefly stated the facts are that on 10-11-1999 while Abdul Qadeer and Ijaz Ahmad were going on their car bearing Registration No. LHQ/4478, they were waylaid by the accused-petitioners alongwith 14 others whose names have been mentioned in the F.I.R. They were duly armed with 7mm rifles and .12 bore guns etc. As a result of firing of petitioners and others, Abdul Qadeer, Ijaz Ahmad Atta Muhammad were done to death.

3. The petitioners applied for bail which relief was declined to them by the trial Court vide order dated 7-8-2000. Hence, the instant petition.

4. Arguments have been heard and record perused.

5. The stand of the learned counsel for the petitioners is that they have been implicated in this case falsely. To elaborate his contentions, he referred to F.I.R. No. 532, 1999 dated 9-11-1999 under section 11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 registered at Police Station City Khanpur. His stand is that as per said F. I. R., occurrence took place on 9-11-1999 at 8-20 a.m. and all the petitioners were apprehended by police on the spot and were arrested. Their remand was obtained on 10-11-1999 as per police record. He argued that as the petitioners were arrested on 9-11-1999 and their remand was obtained on 10-11-1999 so their presence at the time of occurrence on 10-11-1999 at 12-30 (noon) does not arise, and this fact alone makes the prosecution case highly doubtful. He argued that Additional S.P. enquired into this stand of the petitioners and found it correct that similarly an inquiry was also conducted by D.S.P. City Khanpur who checked the record of the Patrol Pump and found that the petitioners were present there at the time of occurrence as given in the F.I.R. No. 532, 1999. He, thus, concluded that all these facts prove their plea of alibi and make the case of prosecution open for further inquiry. He further submitted that as per contents of the F.I.R., as many as 18 accused had been involved out of which, 16 have been shown to be armed with lethal weapons whereas two accused have been attributed the role of abetment; that according to the M.L.R. Atta Muhammad deceased received one entry wound and one exit wound as such he received only one injury; that as per M.L.R. of 1jaz Ahmad deceased he received five entry wounds and two exit wounds out of which, two are pellet wounds and three are bullet wounds; that as per M.L.R. of Abdul Qadeer deceased, he received 11 injuries, out of which seven are entry wounds and four are exit wounds. What the learned counsel for the petitioners wants to convey is that all the three deceased had received only thirteen injuries and as such the allegation of indiscriminate firing attributed to petitioners appears to be doubtful. Learn counsel further argued that nothing has been recovered from the present petitioners which fact further makes the case open for further inquiry; that the accused- petitioners wt arrested on 30-11-1999 and as such are in for the last one and a half year and trial has not yet commenced as only charge has be framed. While summing up the contention learned counsel for the petitioners submitted that all these facts make the case squarely fall under section 497(2) Cr.P.C enabling them to seek the relief of bail.

6. Conversely, the bail been opposed by the learned counsel nor complainant assisted by the learned counsel for the State. He submitted that plea of alibi advanced by the accused-petitioners has bet disbelieved, firstly, by Zahid Mujee S.I./I.O., secondly, by Noor Ahmad S.I thirdly, by D.S.P. Halqa and lastly by D.S.1 Ahmadpur East as all of them have directs that the petitioners be challaned. Further submitted that after the submission of challan the accused-petitioners got the inquiry conducted from S.S.P. and have tried to create some doubt regarding their participation in the occurrence; that it was it. this context that Writ Petition No. 3837 of 2000 was filed and disposed of by this court. He further argued that the trial has not concluded as adjournments are being sought by the petitioners on one pretext or the other.

7. It is evident from the facts stated above that as a result of this occurrence as many as three persons have lost their lives. The present petitioner and their co-accused have been assigned a specific role in the commission of this offence. Learned counsel for the petitioners has laid much stress on the point that the petitioners were not present at the relevant time at the place of occurrence and in this respect has referred to the registration of case pertaining to F.I.R. No. 532 of 1999 dated 9-11-1999. As discussed above, the said case has been investigated by different Investigating Officers and finally the challan has been submitted against the petitioners which shows that their plea of alibi has been disbelieved. Even otherwise, the plea of alibi is the weakest type of plea and cannot be given any weight unless it stands proved from very cogent, convincing and plausible evidence which is lacking in the instant case.

8. For what has been stated above, we are not inclined to extend the concession of bail to the petitioners and, consequently dismiss the petition. H.B.T./M-948/L Bail application dismissed