1989 PLP 4653 (MLD)

S.497--Penal Code (XLV of 1860), Ss.302 & 148/149--Bail, grant of--Plea of alibi--Accused wits an employee of Central Ordnance Depot--Certificate of Commanding Officer produced to show his presence on duty at the relevant time--Accused had attained the age of superannuation--Plea of alibi and the certificate of Commanding Officer could be considered at bail stage--Bail granted in circumstances. S.M. Alam for Applicant. A.A.Muhammadally, A.A.-G. for the State. This incident pertains to 15th December, 1986 and it is stated in the F.I.R that the complainant was a resident of Muhammadi Colony and at 1-W p.m. on 15-12 1980 about 3/4 hundred Muhajirs attacked the house of Pathans, that assailants were armed with Danda, Kulhari, Knife and fire arms. A number of persons were named in the F.I.R. The rioters are said to have burned down a number of houses and some of them are said to have thrown deceased Sohrab Khan in the fire as a result of which fie was burnt. The applicant was arrested on 30-10-1988. The main contention raised by the learned counsel on behalf of the applicant is that he is an employee of Central Ordnance Depot of Pakistan Army and at the relevant time he was on his duty. Learned counsel appearing for the State wits of the view that the plea of alibi cannot be considered at the stage of hail and in this respect he relied upon N.L.R. 1981 Criminal 157 and 1975 S.C.M.R 219. The former case was in respect of anticipatory hail whereas in the latter case, the plea of alibi wits supported by 24 persons. Both these authorities do not lay down a hard and fast rule on the inadmissibility of alibi for the purposes of bail. Every Case has to be dealt with on its own merits. 'The applicant has produced two certificates from the Commanding Officer of the Central Ordnance Depot, Shara-i-Faisal Karachi. First certificate is dated 31-10-1988 and it certified that applicant wits present on 15th December 1986 in the Ordnance Depot. This certificate was produced before the learned IIIrd Additional Sessions Judge. Karachi (East), where the applicant had moved bail application but the learned Judge observed that this certificate did not show the timing of his duty hours and did not certify its to at what time the applicant was on his duty and with this observation the bail application wits rejected on 5-11-1988. Now a fresh certificate dated 8-11-1988 from the Commanding Officer has been filed which clearly shows that applicant was marked present on 15th December 1986 from 07.30 hours to 01.35 hours. I see no reason why the Court should not look into this certificate and why it should not consider the pica of alibi raised by the applicant. This certificate shows that at the time when attack on the Muhammadi Colony was made by a mob, the applicant was on his duty and remained there for more than one and half hours after the occurrence. Of course it is not being held here that plea of alibi is proved. All that is said is that in view of this certificate there is a reasonable possibility that the applicant was not a member of the rioters and may very well have been falsely implicated. It is open to prosecution to prove that the plea of, alibi is not correct. However, in view of the certificate issued by the Commanding Officer I consider that the applicant is entitled to bail. Moreover, learned counsel for the applicant has produced before me copy of retirement notice in respect of the applicant which shows that the applicant is attaining the age of superannuation in June 1990. Copy of his national identity card has also been produced that gives his age as 45 years in 1975. This shows that the applicant is a man of advanced years and on this account too he is entitled to grant of bail. I would, therefore, grant bail to the applicant in the sum of Rs. 20,000 (Rupees Twenty thousand only) with P.R. bond in the like amount to the satisfaction of the learned trial Court. S.A./N-223/R Bail granted.