1997 PLP 1615 (MLD)

5. It may be stated at the outset that the Sessions Judge has totally ignored the certificate showing that the petitioner was away from the place of occurrence, issued by the District Officer, Frontier Constabulary, Shabkadar, District Charsadda which is to the following effect:‑‑‑ "It is certified that L/NK: Baqar Ali HQP was present at F.C. Post Michni on the day of 14‑6‑1996."

6. The learned counsel for the State, on the other hand, stated that the petitioner has been named, in the promptly lodged F.I.R., and has been charged for having effectively fired at the complainant, therefore, his bail petition was rightly rejected by the Sessions Judge. He was of the view that it is not the function of the High Court to accept the petitioner's plea of alibi at bail stage which should be left for the determination of the trial Court. In support of his contention he placed reliance on case Iqbalur Rehman. v. The State PLD 1974 SC 83.

7. It has probably escaped the notice of the Sessions Judge as well as the counsel for the State that a Full Bench of the Hon'ble Supreme Court of Pakistan in case Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another 1975 SCMR 219 had considered their own decision, reported in PLD 1974 SC 83, regarding the effect of the plea of alibi for the purposes of bail and had coma to the conclusion that it did not s ell out an absolute bar in the matter.

8. Ch. Muhammad Anwar Samma, M.P.A., alongwith others was charged for having committed an offence under section 302/436/148/149, P.P.C. in connection with a double murder committed on 21‑10‑1974. Twenty‑four (24) members of the Provincial Assembly submitted affidavits to the effect that Ch. Muhammad Anwar Samma, M.P.A. had attended the proceedings of the Assembly, at Lahore, on the day of occurrence, from 4‑30 p.m. to 6‑30 p.m. and therefore it was not possible for him to be present at the relevant time, which was situated at Gujrat. The learned Judge of the Lahore High Court was therefore of the view that though the plea of alibi can only be ascertained at the time of trial yet the same could not be brushed aside for the purposes of bail. Accordingly Ch. Muhammad Anwar Samma, M.P.A. was admitted to bail.

9. The said order was challenged before the Hon'ble Supreme Court of Pakistan, in the main, on the ground that the same was against the dictum laid down by the Hon'ble Supreme Court of Pakistan in Iqbalur Rehman's case PLD 1974 SC

83. The Full Bench of the Hon'ble Supreme Court of Pakistan, after hearing of the learned counsel for the parties and going through the record of the case came to the following conclusion:‑‑‑ (b) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑S. 497(2)‑‑Bail‑‑Alibi, plea of‑‑Affidavits of as many as 24 members of Provincial Assembly implying impossibility of accused's presence at scene of occurrence at given time‑‑Accused s plea, in circumstances, held, would require consideration at proper time and case on requiring further inquiry under S. 497(2)‑‑High Court's order admitting accused to bail not interfered with in peculiar circumstances of case‑‑Petitioner, however, could renew application for cancellation of bail when evidence implicating accused brought on record."

10. Besides, in case Akram Khan. v. The State and another 1978 SCMR 242 it was held as under:‑‑‑ "S. 498‑‑Alibi, plea of‑‑Bail‑‑Plea of alibi to be dealt with on its own merits‑‑Not possible to lay down a rule of thumb to be followed in all cases of pleas of alibi‑‑High Court while granting bail taking into account a Certificate issued to accused employee of Defence Forces from his Unit as well as Unit Registrar stating his presence on duty at another station at time of occurrence‑‑Order of High Court being neither unreasonable nor perverse and passed in exercise of proper discretion, held, not open to interference."

11. It may be mentioned, with advantage, that the facts of the case mentioned above are on all four as far as the case in hand is concerned.

12. The Sessions Judge has also failed to notice that in the case an application was submitted by the brother of the petitioner to the Superintendent of Police, Peshawar requesting him to direct the Investigating Officer to record the statement of the concerned District Officer, Frontier Constabulary, Shabkadar, District Charsadda to confirm as to whether or not the petitioner was present on duty on 14‑6‑1996 when the occurrence allegedly took place. The Investigating Officer was also to find out/enquire from the said Officer if he had in fact issued the Certificate reproduced above.

13. The learned counsel for the State admitted at the Bar that the Investigating Officer has not recorded the statement of the concerned Officer, so far, for reasons known to him.

14. In the circumstances mentioned above, I am of the view, without dilating upon the merits of the case, that reasonable grounds do not exist for believing that the petitioner is connected with the commission of offence with which he has been charged and that his case needs further probe. This bail petition is accepted and the petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bond in the sum of Rs.1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of the Senior Civil Judge/S.D.M., Peshawar.

15. The Senior Civil Judge/S.D.M., Peshawar shall see that the sureties are respectable persons and are men of means having sufficient property in their names and belong to the settled area of District Peshawar. N.H.Q./2037/P Bail allowed.