P L D 1991 Peshawar 49 (PLP)

Abu Saeed, petitioner, and his three other co‑accused, namely, Sher Aman, Gohar and Anwar Ali are involved in the case of murder and attempted murder registered at Police Station, Rustam on 28‑9‑1990. It is alleged in the F.I.R. lodged in injured condition by Mohammad Asim complainant on 28‑9‑1990 at 19‑00 hours at Civil Hospital, Rustam that at about 18‑10 hours he, his father Mohammad Hamid and brother Muhammad Khalid were on their way from their Drugs Store to their house. When they reached near the Hospital, accused Sher Aman, his son Gohar and Anwar Ali, another accused, duly armed with Klashnikovs emerged from the nearby field and started firing at them. As a result, Mohammad Hamid fell dead while Mohammad Asim sustained injuries. Abu Sated, petitioner, is charged for the offence of abetment falling under section 109, P.P.C. 2 The motive for the offence as stated in the F.I.R.was that some religious differences between Maulana Moinuddin, nephew of Mohammad Hamid deceased and Maulana Abdul Salam have surfaced which had taken serious turn. As a result of these differences, the party of Maulana Abdul Salam was charged for firing at the students of Maulana Moinuddin on 8‑5‑1990 resulting in the death of two and injuries to 11 persons on the basis of which a case vide F.I.R. No.160 under section 302/307/34, P.P.C. was registered against Maulana Abdul Salam and his son Abdul Saboor. Hence this murder and attempted murder in retaliation at the behest of Abu Saeed petitioner.

3. Before proceeding further it may not be out of place to bring on record two peculiar features of this case. Abu Saeed petitioner had been arrested on 26‑9‑1990 at about 9‑00 p.m. by S.H.O., Police Station, Kabuli, Peshawar for having been found in possession of 25 rounds of .30 bore pistol and a case vide F.I.R. No.490 under section 13 of the Arms Ordinance had been registered against him. On 29‑9‑1990 he was formally arrested by the local police of Police Station, Rustam, in this case. On the other hand, Anwar Ali, co‑accused of the petitioner, had made an inculpatory confessional statement before a Magistrate Ist Class, Peshawar, on 12‑1‑1991 wherein he has also involved the petitioner for hatching the conspiracy to murder Mohammad Hamid deceased who was suspected to have been creating hurdle in the way of effecting compromise in the earlier case of twin murders registered against Maulana Abdul Salam.

4. Haji Bashir Ahmad, Advocate, for the petitioner, contends that no role except that of conspiracy has been attributed to the petitioner and when it is viewed in the background of the religious differences between the two factions of a town, it loses its significance. He next submitted that the petitioner's plea of alibi was clearly established on the record, in that, he had been in police custody from 26‑9‑1990 to 29‑9‑1990 in a criminal case vide F.I.R. No. 490 dated 26‑9‑1990. His last. submission is that there was no material in support of the allegation of petitioner's involvement in the conspiracy. In support of the last submission, reliance was placed on Murad Khan v. fatal‑e‑Subhan and another (PLD 1983 SC 82) and Jamaluddin v. The State (1985 SCMR 1949).

5. Mr. K.G. Sabir, Bar‑at‑Law, appearing for the State opposed the bail application on behalf of the petitioner and urged that the petitioner's plea of alit.; cannot be gone into at this‑ stage. In this context, he relied on Bahadur V. Muhammad Latif and others (1987 SCMR 788) wherein it was held that the so‑called theory of alibi has still to stand the test of scrutiny on the basis of evidence. The cases of Murad Khan and Jamaluddin cited at the Bar by the learned counsel for the petitioner enunciated the principles for the grant of bail before arrest and are not attracted to the case in hand.

6. The charge against the petitioner is one of abetment falling under section 109, P.P.C. for murder which does not prima facie affect his glaring absence at the time and from place of occurrence. In any case, it would be for the trial Court to scrutinise it at the trial. The allegation of conspiracy/abetment against the petitioner lends ample support not only from the allegation in F.I.R. but also from the confessional statement of Anwar Ali co‑accused of the petitioner. The plea of involuntariness of the confessional statement raised by the learned counsel for the petitioner would also be appropriately examined by the trial Judge and it would not be proper for this Court to look into it at the stage of bail.

7. In these circumstances, this Court has come to the conclusion that this is not at all a case where it could be said that there are no grounds for believing that the accused petitioner is guilty of an offence punishable with death or transportation for life. On the other hand, there are reasonable grounds for believing that the petitioner has been guilty of offences punishable with death or imprisonment for life or imprisonment for ten years. This being so, this petition has no merit and stands dismissed accordingly. N.H.Q./1184/P Bail refused.