1990 PLP 53 (MLD)

Nazir petitioner has moved this petition for cancellation of bail allowed by a learned Additional Sessions Judge, Bannu, to Mohammad Aslam Khan, accused‑respondent in case F. I. R. No.196 dated 17‑9‑1988, under sections 148 and 302 read with sections 149 and 404, P.P.C. registered at Police Station, Mandan, District Bannu, on 17‑9‑1988 at about 6.30 a.m.

2. According to the prosecution, the petitioner alongwith Aqleem Khan and Khansher, were on their way to attend a case in the Court. Khansher was ahead of the petitioner. As they reached near the graveyard of village Tughul Khel on the road leading to Chakdadan, they noticed 5 persons, namely, Dost Mohammad, Meser Khan, Rabnawaz; Azad Khan and Mohammad Aslam, accused‑respondent No.1, duly armed, who immediately came out and fired at Khansher with which he was hit and died on the spot. The accused, after killing him, took away .303 bore rifle of the deceased and then all of them decamped from the spot.

3. The motive for the occurrence was old blood‑feud between the parties.

4. The contentions raised before the learned Additional Sessions Judge by the respondent's counsel were two‑fold: firstly, that there was un‑explained delay in lodging the report and; secondly, that Mohammad Aslam respondent had been declared innocent during the investigation after his plea of alibi was verified by the S.H.O. who had examined a Line Superintendent, a Line Man and two Assistant Line Men. The Public Prosecutor opposed the prayer for bail. The learned Additional Sessions Judge after considering the arguments of the parties granted bail to the respondent.

5. S. Zafar Abbas Zaidi, the learned counsel for the petitioner seeks the cancellation of bail granted to accused‑respondent on the following grounds:‑‑ (i) That the accused‑respondent is not only directly charged in the FIR wherein the petitioner herein and the eye‑witness Aqleem Khan have fully implicated him but the medical evidence corroborated the charge in presence of which there can be no question of any further inquiry; (ii) that in an unceremonious haste to oblige the accused‑respondent, the Investigating Officer has acted illegally in placing the accused‑respondent in Column No.2 of the challan; and (iii) that the Investigating Agency has completely overlooked the time of occurrence as 6.30 a.m. on the morning of Saturday after which the accused‑respondent could reach his place of duty and that, therefore, plea of alibi raised by him is mere concoction. In support of his contention that the learned Additional Sessions Judge has not weighed the credibility of the plea of alibi in true prospective, Mr. Zafar Abbas Zaidi placed reliance on: (1) lqbal‑ur‑Rehman v. State (P L D 1974 S C 83); (2) Nawab v. Mohammad Saeed and another (P L J 1974 Cr. Cases (Lahore) 495) and (3) Javaid Akhtar v. Masud Ahmad Kirmani and State (P L J 1974 Cr. Cases (Lahore) 517).

6. As against this, Mr. Faizullah Khan Sadozai, the learned counsel appearing on behalf. of the State, has not: opposed the bail by saying that in the presence of documentary evidence placed on the file showing the accused respondent to have been on duty at the alleged time of occurrence, the learned Additional Sessions Judge was justified to have accepted the plea of alibi raised by the accused‑respondent and verified by the Investigating Agency.

7. Mr. Mohammad Karim Anjum Qasuria, the learned counsel for the accused‑respondent, contended that opinions of Investigating Officers qua the innocence of the accused have weighed with the Courts in granting bail .to the accused, subject, however,' to due support from the material on record. He further submitted that the site plan and the medical evidence belies the charge against the accused‑respondent. His last contention was that there has been an inordinate delay in lodging the report and that too not in the Police Station but at the spot which casts serious doubts on the veracity of the prosecution case.

8. In the authorities cited at the Bar by the learned counsel, for the petitioner, the bail granted was cancelled or the bail‑was refused after recording their finding as to the credibility of alibi evidence. There is no cavil with this proposition. The sole question to be determined is as to whether on the material placed on the file, the learned Additional Sessions Judge was justified to have extended the concession of bail to the accused‑respondent. The learned Additional Sessions Judge appears to have noticed the extracts from Register of Attendance, Record of casual leave, the certificate of the S.D.O. confirming the presence of the accused‑respondent in D.I. Khan at the time of occurrence, the Office Order detailing the accused‑respondent and his colleagues to grant electric connections to the consumers in village in D.I. Khan coupled with the statements of all those colleagues and officers who have been concerned with these documents. It was perhaps in view of this overwhelming material that Mohammad Aslam, accused‑respondent was found innocent during the investigation and has been placed in Column No.2 of the challan. I concede that the finding of the Investigating Officer qua the innocence of an accused is not binding on the Courts, nonetheless it is a relevant consideration in a bail matter.

9. In the light of the material placed on the file, I see no reason to interfere with the discretion exercised by the learned Additional Sessions Judge in granting bail to the accused‑respondent. This petition for cancellation of his bail is accordingly dismissed. N.H.Q./923/P Petition dismissed.