1991 PLP 2208 (MLD)

Shoukat H. Zubedi, AA.-G. for the State. Date of hearing: 20th May, 1991. Applicant Ali Akbar Rajput, who is detained in Crime No.85 of 1990, Kazi Ahmed P.S. under sections 452, 302/34, P.P.C., applied for bail before learned Sessions Judge, Nawabshah, but without success. He has now approached this Court with the same prayer.

2. Deceased Mumtaz Ali was a friend of applicant Ali Akbar, a Police Constable, who used to visit his house frequently. It is alleged that deceased Mumtaz Ali had prevented the applicant from visiting his house, which annoyed him and he gave threats to deceased Mumtaz Ali of dire consequences. On 13-10-1990 at about 12-30 a.m. deceased Mumtaz Ali while sleeping in his house situated in Kazi Ahmed Town was fired at who died on the spot. The incident was witnessed by Mst. Ayesha, and Imtiaz, wife and son of deceased Mumtaz Ali, respectively who could identify the applicant who was armed with a rifle, out of the four culprits. Complainant Haji Masood who was attracted on gunshot reports also identified the applicant while he was running away. On the same day at 6 a.m. the report of this incident was lodged at Kazi Ahmed P.S. On 17-10-1990 the present applicant was arrested and after usual investigation he was sent up to stand trial.

3. I have heard Haji Abdul Majeed Choudhry, learned counsel for applicant and Mr. Shaukat H.Zubedi, learned AA.-G. for State. The latter has opposed the bail application.

4. It is the case of the applicant that he was posted as Police Constable at Kandiaro P.S. and on the relevant night was on duty at a place which is 60 miles (100 kilometres) away from the Wardat, and consequently he was not in a position to be present at Kazi Ahmed at the relevant time. Besides the affidavits of Mithal, waterman of Railway Station Kandiaro and War Ali, Constable, Kandiaro P.S., who have supported the plea of alibi raised by the applicant, he has placed reliance upon the evidence of Pahalwan Khan, S.H.O. Kandiaro P.S., Sohrab Khan A.S.I. Kandiaro P.S. and Muhammad Iqbal, W.H.C. of Kandiaro P.S. who were examined during the course of investigation. The copies of station diary (ROZNAMCHA) of Kandiaro P.S. secured during the course of investigation also lends support to the plea of alibi raised by the applicant. The record secured during the course of investigation further shows that the applicant had deposited the rifle and 100 bullets issued to him while leaving for patrolling.

5. During the course of hearing of this bail application Pehalwan Khan, S.H.O. Kandiaro P.S. was called, but he was of no assistance to prove the presence or otherwise of the applicant at Kandiaro P.S. at 12-30 a.m. However, the documentary evidence available on record gives rise to an inference that the plea of alibi raised by the applicant might be true and in such a situation he becomes entitled to the grant of bail. The delay of 5 hours in lodging the F.I.R. when the police station is 1 furlong away from the place of incident is another circumstance, which goes in favour of the applicant. In such cases there is strong temptation to conceal the truth and to drag the possible suspect into the net,

6. The case of Khalid Javed Ghulam v. The State reported in P L D 1978 SC 256, is a leading judgment on this point. The cases reported as Noor Muhammad v. The State (1989 M L D 4653), Muhammad Shafique and another v. The State (P L D 1990 Peshawar 118), Ghulam Murtuza Qureshi v. The State (1990 P Cr. L J 323), and Muhammad Ashraf v. The State (1990 P Cr. L J 765) also deal with broad outlines for exercising the discretion in matters of bail where plea of alibi is raised.

7. It was also contended that the culprit nominated in F.I.R. was one Ali Akbar by caste Kerio, while the present applicant is Ali Akbar, by caste Bhatti Rajput and is a different person. This question cannot be examined at this stage which is primarily the function of the trial Court.

8. At any rate for the reasons recorded in para. 5 ante, the case against the applicant needs further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. and he is entitled to the grant of bail. Accordingly bail is allowed to applicant in the sum of Rs.100,000 (Rs.one lac only) with P.R. bond in the like amount to the satisfaction of Sessions Judge Nawabshah, subject, however, to cancellation of his bail by trial Court if after examining the main witnesses a prima facie case is made out against him. H.B.T./A-1072/K??????????????????????????????????????????????????????????????????????????????????????????? Bail granted.