2000 PLP 1046 (MLD)

This application for pre‑arrest bail is moved on behalf of accused/applicant Jan Muhammad against whom case is registered under sections 324, 337‑H (ii), 147, 148 and 149, P.P.C. at Police Station Ratodero. The case of prosecution as disclosed' in the FIR lodged by complainant Ghulam Shabbir is that on 21‑3‑1999 complainant alongwith his son Habibullah and nephew Inayatullah were going to their lands and at about 8‑00 a.m. when they reached near the house of Meanhon Khan" Chandio they were way laid and encircled by accused namely

1. Jan Muhammad,

2. Ghulam Sarwar,

3. Bahar,

4. Ismail,

5. Abdul Sattar

6. Ghulam Siddique and

7. Ghulam Nabi. It is stated in the F.I.R. that the present applicant/accused challenged the complainant party saying that he was implicated‑ in a murder case of deceased Mst. Bachul and that they should withdraw from the same. The applicant after saying so. fired his gun which hit Habibullah on his chest. Accused Ghulam Sarwar and Bahar and said to have fired in the air and then other accused also played the same role and after raising slogans they fled away. The challan is submitted on, 8‑4‑1999 and the accused .had sought his protective bail for ten days for Principal Seat of this Court at Karachi for approaching the trial Court. He moved his pre‑arrest application before the learned Sessions' Judge, Larkana, which was ultimately heard by learned III Additional Sessions Judge, Larkana, who had dismissed his pre‑arrest application on 14‑4‑1999. The application thereafter repeated his bail application for protective bail before this Court at Larkana Circuit and sought his protective bail for 15 days on 20‑4‑1999. Thereafter, the applicant again moved application for pre‑arrest bail which was heard by the learned III Additional Sessions Judge, Larkana on 7‑5‑1999 and the same was dismissed. I have heard the learned counsel Mr. Khalid Iqbal Memon, Advocate for applicant and Mr. Inayatullah Morio for the State. The case of the applicant is mostly argued on the ground that the applicant is aged about 72 years of age and that on the day of incident he was allegedly admitted in Medical Unit No.l of Civil Hospital Karachi as an indoor patient. To that effect, the certificate has been produced issued by the concerned Hospital Karachi. The learned counsel further contended that this is the case of enmity "w and that false involvement of the accused cannot be overruled. The counsel " has placed reliance on a case of Abdul Jabbar v. The State reported in 1977 SCMR

50. The accused in the above case was granted bail as he had caused no injury to deceased. This. case is materially different from the facts of present case. On the other hand learned State counsel has vehemently opposed, this bail application on the ground that the direct role of firing attributed to the present applicant/accused and to that effect the complainant Ghulam .Shabbir, injured Habibullah and eye‑witnesses Inayatullah have fully implicated him. He has further argued that the complainant party has brought the photostat copy of Identity Card of the applicant which shows the date of birth of the applicant to be in the year 1936. According to him, the National Identity Card produced by the applicant/accused is fictitious and forged one. Be that as it may, from the record I find that this incident has occurred on 21‑3‑1999 ah 8‑00 a.m. and the report is promptly lodged within 45 minutes at Police Station Ratodero. The direct role of firing is attributed to this applicant Jan Muhammad. The injuries sustained by the injured are on his chest i.e. most vital part of the body. The police has secured five empties from the Wardaat and if at this stage the plea of alibi is considered and pre‑arrest bail. is granted to the applicant, the prosecution case would be deprived of the material evidence to be collected against the accused. The motive as disclosed in the F.I.R. is that previously this accused had committed murder of Mst. Bachul and consequently death sentence was awarded to him. According to the complainant who is present in the Court, the accused party had brought Holy Qur'an to the complainant party and they had compromised the matter before this Court on the basis of which present applicant was released but the grudge was still vindicating in his mind, as such, on the day of incident after being armed with gun attacked them and caused injuries to Habibullah on his chest. So far ground of age is concerned, it still requires verification and I had suggested to the learned counsel that the both identity cards be sent to the concerned department for verification as to which .of one is genuine, but the learned counsel did not agree to that proposal and has insisted upon to decide this bail application today. Even otherwise, the old age, itself, is no ground for pre‑arrest bail. So far the plea of alibi is concerned, it is to be decided finally when the record is called for from the Hospital concerned and the doctor is examined because in these matters the very identity of the accused is to be considered. It may be possible that somebody else might have been admitted in the Hospital disclosing his name to be Jan Muhammad as the applicant must be intending to commit this offence. Learned counsel has submitted a case law reported in 1978 SCMR 256, after I had dictated this order and I have considered the same which is distinguishable from the case in hand. The medical practitioner in the cited case had issued the certificate and had filed affidavit in Court but the present case is distinguishable from the above referred case as in this case the identification regarding his presence and admission in Hospital would require consideration, at the time, of trial. Plea of alibi is to be well‑examined thoroughly at trial, when the identity of accused regarding the admission of patient is established. The reference can be made of the case of Iqbalur Rahman v. The State, reported in PLD 1974 Supreme Court 83, which reads as under:‑‑ "In the light of the material available on the record we are of the view that the learned Judge in the High Court was clearly in error in recording a finding at this stage as to the credibility of the evidence of alibi. We also find that, in any case, the finding is not based on a consideration of the other relevant factors as pointed out by the learned counsel for the complainant. In these circumstances, there is no escape from the conclusion that this was not at all a case where it could be said that there were no grounds for believing that the respondent was guilty of an offence punishable with death or transportation of life. " The reference can be have to case of Bahadur v. Muhammad Latif, reported in 1987 SCMR 788, wherein their Lordships have held as under:‑‑ '...There is no denying the fact that the respondent Muhammad Rafique is directly charged in the F.I.R. for having killed Muhammad Munir with a rifle shot. The F.I.R. was promptly lodged within 45 minutes by the petitioner. As respects, the contention that the Investigating Officer had found the plea of alibi to be correct, it was contended by the learned counsel for the petitioner that in fact both the respondents have since then been challaned for the commission of the offence. This fact was not controverted by the learned counsel for the respondent and was confirmed by the learned Assistant Advocate‑General. It is needless to comment that the alleged theory of alibi has still to stand the test of scrutiny on the basis of evidence. The respondent Muhammad Naveed is shown to have caused injury to Bashir (P.W.) and the case having been registered under sections 302, 307, read with section 34 Pakistan Penal Code. His case could not be separated for the purpose of grant of bail... " In these circumstances, there is no escape from the conclusion, that this is not a case for pre‑arrest bail and the application is accordingly dismissed. H.B.T./J‑5/K Application dismissed