Plea of alibi

Accused/ appellant was nominated in the FIR with specific role of firing with pistol and murdering the deceased and injuring the complainant

Appellant did not record his statement on oath

At the trial the appellant claimed innocence and raised plea of alibi but he failed to prove the same

Substitution of an accused person, who is involved in the commission of murder, is a rare phenomenon particularly in an occurrence in which a single accused is implicated with specific role in a promptly lodged FIR

Circumstances established that the prosecution had proved its case against the accused beyond shadow of reasonable doubt through coherent and confidence inspiring evidence

Appeal was dismissed accordingly.

Accused took the plea of alibi, stating therein that a day before the occurrence he was in custody of the police of another Police Station as his motor car was taken from his possession under S.550, Cr.P.C

Investigating Officer visited the concerned Police Station and recorded statements of all concerned including the Police Officials who arrested the accused and of an Advocate with whom the accused and two others stayed for a night

No doubt, the documents regarding interception of the motorcar were produced and placed on file and no doubt, the concerned witnesses stated of his confinement in the police lockup, but that alone was not sufficient to substantiate the claim of the accused rather the accused in order to prove his presence there, must have produced reliable witnesses and reliable documents

Documents so produced could not be taken into consideration in support of his plea of alibi

Court is to determine as to whether the plea taken and not proved would weigh against the accused

No ambiguity that if an accused takes a plea regarding his innocence and if he does not succeed to prove the same, it can not be taken against him, as the prosecution is still under the bounded duty to establish its charges and the burden never shifs

However, when an accused takes the plea of right of self-defence then in that situation the accused is under the obligation to prove the same failing which the Court, dealing with the matter, can take it into consideration against the accused charged, but in the present case the situation was otherwise as it was the prosecution which had to establish its case through cogent, convincing and trustworthy witnesses and the burden never shifted to the accused

Circumstances established that the prosecution could not prove guilt of the accused

Appeal against the conviction was accordingly allowed.

Plea of alibi if taken at earliest shall not outrightly be rejected but this principle varies from case to case.

Qatl-i-amd, mischief committed after preparation made for causing death or hurt, abetment, rioting, armed with deadly weapon, common object

Bail, grant of

Old age of accused

Absconsion

Plea of alibi

Scope

Allegation against accused was that he along with co-accused while armed with firearms committed the murder of the brother of complainant

Accused was an old man of 79 years of age

Investigation revealed that the accused was not in Pakistan on the day of occurrence

Nothing was recovered at the instance of accused during his physical custody with the investigation agency

Absconsion of accused was not sufficient to disentitle him to the grant of post-arrest bail

Accused was admitted to post-arrest bail, in circumstances.

Plea of alibi taken by the accused during the investigation can be validly considered even at bail stage.

Despite the fact that report under S. 173, Cr.P.C., had been sent to the Trial Court by the prosecution wherein accused along with another was arrayed in column No. II of the report, the complainant had not preferred any private complaint

Such attitude of the complainant, firstly by not challenging the opinion of the Investigating Officer and then by not filing a private complaint, showed that in fact the complainant was satisfied with the outcome of the investigation

Accused was eligible to be enlarged on bail

Petition for grant of bail was allowed, in circumstances. [Paras. 4 & 7 of the judgment]

Admittedly, plea of alibi being special plea must be taken at first available opportunity and being a distinct plea was required to be substantiated by adducing cogent and concrete evidence

Accused, before he was arrested by the police, never agitated anywhere even by moving any application to any authority that he was not present at crime scene

Although in cross-examination said accused suggested to the Investigating Officer about such plea of alibi and the person with whom he was present but that person was not produced by him in his defence

Circumstances established that the Trial Court while taking into consideration the evidence from all possible angles rightly proceeded to convict the accused persons

Appeal against conviction was dismissed accordingly.

Allegations against the accused persons were that they, within the sight of the witnesses, opened fire and deceased, lost his life in the hospital due to the firearm injuries

Allegedly, the incident had taken place on 03.05.2019 and was reported on 07.05.2019 but as per record, the accused persons were not present in Pakistan as they had gone to Saudi Arabia to perform Umrah with their families

Original passports of the accused and their family members had also been produced

Immigration entries showed that they departed from Pakistan on 29.04.2019 and returned back on 17.05.2019, which showed that they were not present in the country on the date of incident, as such their presence at the scene of incident was hardly believable at the reported date and time of the incident

Delay in lodging of FIR was sufficient to presume deliberation and consultation before reporting the incident to police

In view of delay in lodging of FIR, a strong plea of alibi and availability of malice and ulterior motive due to twisting of the complaining party from the version of FIR, a case of pre-arrest bail had been made out in favour of the accused

Pre-arrest bail already granted to the accused persons was confirmed, in circumstances.

Plea of alibi cannot earn an acquittal even during trial for the simple reason that this purely falls within the meaning of a specific plea which the accused would be required to establish as per Art. 121 of Qanun-e-Shahadat, 1984

Accused cannot claim acquittal or discharge during investigation or at the stage of trial but at the most it can be considered as a circumstance, never sufficient for acquittal but for further inquiry.

Criminal misconduct, criminal breach of trust by public servant, cheating and dishonestly inducing delivery of property, forgery for purpose of cheating, using as genuine a forged document, falsification of accounts, common intention, abetment

Appreciation of evidence

Plea of alibi

Scope

Prosecution case was that the accused in active connivance of his other accomplices obtained the credential/secret information and full particulars of an account, arranged fake cheque book requisition slip on which he made forged signature of account holder and with active connivance of co-accused/banker processed the same for issuance of a fresh cheque book and transferred an amount of Rs. 2.600 million through different cheques on the basis of forged signature to the account of co-accused, from where the amount was withdrawn

Accused-appellant took plea that he was out of country from June 2008 upto October 2008, while the incident had taken place from 26.07.2012 to 27.07.2012

Trial Court while convicting the accused had made the observation that FIA itself was not confident about the genuineness of travel of the passenger

Data showing travel of passenger was always provided by the passenger and fed by FIA staff, thus human error could not be ruled out

Said observations made by Trial Court had no force, as the procedure provided at all airports that if any person travelled abroad on presentation of his/her passport before FIA officials, they would make entry in the data/computer and in the last they affixed stamp on the passport "Exit" along with date and on his arrival the FIA made entry in the data/computer and affixed stamp of "Arrival"

On the basis of travel history of the accused, the same was provided by FIA to the Trial Court, the plea taken by the accused that he was out of the country on given dates, was confirmed by the FIA authorities

Trial Court was not sure that at the time of committing the offence, accused was in his own country or out of the country

Complainant in his examination-in-chief deposed that accused probably was the same person who posed himself to be account holder, meaning thereby that the complainant was not sure whether the person present in CCTV camera was accused-appellant or not

Appeal against conviction was allowed to the extent of accused, in circumstances.

Plea of alibi can only be considered by the trial court after recording of evidence.

Deceased and accused were married in the year 2008, out of the wedlock a son was born in the year 2009 and thereafter in the year 2013 the accused had pronounced divorce

Minor son was living with his father but when he grew up, he wanted to live with his mother

Accused was not happy, therefore, he filed an application under S. 491, Cr.P.C. wherein he had alleged that his son was abducted by the deceased

Deceased in the year 2020 had submitted an application to the S.H.O. (Station House Officer) wherein it was mentioned that some unknown persons while riding a bike had come close to her, had issued threats, had also shown some weapons and had stated that leave her son

Deceased had further stated in the application that it was second attack upon her

Plea of alibi, as raised by the accused, could only be considered by the Trial Court after recording of evidence

Accused had failed to make out a case for grant of pre-arrest bail

Petition was dismissed, in circumstances.

Accused along with his brothers was alleged to have fired at the complainant party, killed one of them and injured the other

Call Data Record (CDR) of the accused person's mobile phone showed that he was on another place and that soon after the incident calls were received on that phone from the mobile number of complainant, therefore, plea of alibi was not without force

Both the parties were known to each other and there was enmity between the complainant's son and the accused person's brother, who had absconded

First Information Report did not ascribe a specific role or a specific weapon to the accused, nor was the crime weapon recovered from him

Element of throwing the net wide to implicate the accused could not be ruled out

Case against accused was one of further enquiry falling within the ambit of subsection (2) of S.497, Cr.P.C.

Accused was admitted to bail, in circumstances.

One of the accused persons at the very onset had taken a plea of alibi and it appeared that the same was not taken in vacuum, rather the same seemed justified being augmented by certain unimpeachable documentary evidence, one of which was a biometric verification receipt for Hajj purposes and the same was conducted on the date of incident, which could not be ignored due to its online system

Accused even on the following day was present in a hotel as reflected from its register

Person intending to go for Hajj could not be believed that after being verified biometrically he would go to commit someone's murder and after that would go back to stay in the hotel

Plea of alibi was justified and the accused deserved the concession of bail

Accused was enlarged on bail, in circumstances.

Once the prosecution was successful in discharging the burden it was incumbent on the accused who took the plea of alibi to prove it with absolute certainty.

In the present case, accused assumed the plea of alibi by stating in his statement recorded under S.340(2), Cr.P.C., that he was at somewhere else on the relevant day from morning till evening while running his shop of electrical instruments

Accused produced one defence witness and some documentary evidence

Accused during his cross-examination while recording his statement under S.340(2), Cr.P.C., stated that defence witness was son of his paternal aunt, whereas defence witness in his cross-examination had stated that his mother was paternal aunt of the accused

Said fact showed that the defence witness was related to accused and his statement could not be trustworthy

Place was a crowded city and in a market, where the accused was carrying his business

20/22 shops existed including the shop of accused and that fact was also admitted by the accused in his cross-examination

Accused failed to produce any impartial witness from a place which remained crowdy during day time and relied on a single witness to prove his alibi

Documents i.e. Bank statement and biding documents were not satisfactory to believe as the Bank statement and biding documents were unattested and the Bank statement did not show the time of deposition and withdrawal of amount

Transaction in a Cooperative Bank, was possible through cheque book, and it could safely be inferred that deposition/ withdrawal on the relevant date in the account of accused through cheque had been made by someone else, which the accused might have signed earlier

Accused had failed to prove his plea of alibi through convincing and reliable evidence

Accused after commission of offence had fled away on a motorcycle from the scene and the said motorcycle was later on recovered by police from the possession of accused

Accused had taken approximately 30 minutes to reach at place of occurrence from village and a skilled rider of motorcycle might reach at his working place from the spot of occurrence even before 30 minutes

Circumstances suggested that it was almost possible that the accused after committing murder of deceased had rushed to his working place on motorcycle and remained there with defence witness till evening to mischief and escape from the clutches of law enforcing agencies

Plan of accused, however, dashed to the ground when the eye-witnesses exposed reality and his cruel face

Circumstances established that the prosecution had properly established its case against the accused

Appeal against conviction was dismissed to the extent of accused, however, appeal of co-accused, who was allegedly accomplice of principal accused and was driving motorcycle, but the said motorcycle was not recovered on his pointation was allowed to his extent.

Shajjah-i-khafifah, hurt by rash or negligent act, mischief causing damage, rioting armed with deadly weapon and common object

Appreciation of evidence

Benefit of doubt

Plea of alibi

Withholding of material witness

Presumption

Prosecution case against accused was that he along with others attacked the sons of the complainant with knives and sticks; caused them serious injuries and also broke glasses of the vehicle

Validity

Accused disputed his presence at the time of occurrence, took the plea of alibi and produced a witness in his defence who stated that he was accompanying the accused throughout the day

Complainant had not witnessed the crime and his entire statement was based on hearsay evidence

Complainant admitted that he was informed on the telephone by another person but he failed to name the said person

Incident took place on 11th May, 2016 while complainant in his statement alleged the same as 11th August, 2016

Injured witnesses made improvements in their earlier depositions and admitted that the occurrence took place near Levies Thana, which confirmed the presence of Levies employee at the spot

Investigating officer in his court statement admitted that statement of Levies employee recorded under section 161, Cr.P.C. did not show presence of accused at the time of occurrence

Perusal of statement of Levies employee showed that the accused was not present at the place of incident at the relevant time

Levies employee was an independent witness of the occurrence and despite availability his evidence was withheld by the prosecution without any plausible reason or justification, whereas his evidence was the best piece of evidence which could have been relied upon for proving the case

Presumption under illustration (g) of Art. 129 of Qanun-e-Shahadat, 1984 could fairly be drawn that if the said witness was produced in court he would not have supported the prosecution version

Prosecution was not bound to produce each and every witness, but if the prosecution failed to produce such witness who was the central figure and entire story revolved around him then the prosecution story became doubtful

Prosecution failed to prove the presence and participation of accused in the occurrence

Non-production of Levies employee created reasonable doubts in the case of prosecution

Petitioner was aquitted from the charge, in circumstances.

Petitioner along with co-accused allegedly, in a daylight occurrence, had severely thrashed the deceased with hatchet blows

Petitioner contended that his case fell under ambit of further inquiry as at the time of occurrence, he was present at his office situated 25 Kilometers away from the place of occurrence and for that effect he had also produced a certificate

Complainant contended that said certificate, showing presence of the petitioner at his office, was issued about nine months after the incident

Validity

Eye-witnesses had recorded their statements before the Magistrate under S. 164, Cr.P.C. and they all had supported the prosecution version in all respect of mode, manner and the number of the assailants

Role of each accused, in such like cases, could not be segregated for the purpose of conviction and sentence

Since each one of the unlawful assembly had actively participated in the crime in prosecution of their common object, so they all were burdened with constructive liability

Petitioner could not be released on bail merely on the ground of further inquiry, for almost every criminal case, in normal course, was of further inquiry

Petitioner had not offered any explanation for his noticeable absondence, much less plausible

Certificate submitted by the petitioner in support of his plea of alibi, did not show the presence of the petitioner with specific time in his office

Distance between the place of occurrence and the said office was 22 Kilometers which was so short from which it could be presumed that the petitioner could easily attend his office after or even before the commission of the alleged crime

Challan had been submitted in the Court and trial was to commence, so when the case was fixed for the evidence, bail petition should not be decided, merits and the matter be left to the discretion of the Trial Court, as the same could prejudice the case of either side

Bail was refused to the petitioner, in circumstances.

Accused along with co-accused allegedly made firing upon the complainant party, which hit three sons of complainant and they died on the spot

Accused-petitioner had alleged that he was serving abroad and was not present on the spot

Original passport, air line ticket and travel history report provided by the concerned department showed that the accused left the country for abroad on 28.5.2015 and came back to the country on 20.2.2017, while the alleged crime took place on 18.4.2016

Plea of alibi taken by the accused-petitioner had not been disbelieved by the prosecution and was accepted after due verification from the concerned department

Case of the accused-petitioner had fallen within the purview of S.497(2), Cr.P.C. he was allowed bail in circumstances.

Accused-petitioner and co-accused allegedly had made firing on the brother of the complainant resulting in his death and caused injuries to minor girl passing by on road

Petitioner/taxi driver by profession , after almost one year of occurrence, submitted affidavits of the passengers and claimed that he was present with them in other city at the time of occurrence

Police declared the petitioner innocent on the basis of said affidavits

Petitioner contended that charring marks were present on the body of the deceased despite the fact that distance between the accused and the deceased was seven feet

Validity

High Court was to examine plea of alibi, like other defense pleas, taken at bail stage within a degree of care and caution

Belated sworning in of affidavits in support of plea of alibi, prima facie, created an impression that it was an afterthought, however, the Trial Court would decide its evidentiary value after recording pro and contra evidence

Mere filing of affidavits would not make the case of petitioner one of further inquiry

Finding of the Investigating Officer declaring the petitioner innocent on the basis of said affidavits was not binding on the Court

Material available on record was to be sifted through in order to establish whether prima facie the petitioner was connected with the occurrence

Deeper appreciation of evidence, at bail stage, regarding charring wounds present on the body of the deceased was not permissible

Petitioner remained absconder and was declared proclaimed offender

Fugitive from law lost some of his normal rights granted by procedural and substantive law and unexplained noticeable abscondence had disentitled the petitioner to the concession of bail

Challan, in the case, had been submitted and trial was likely to commence, so bail was not to be decided on merits and matter be left to the Trial Court

Bail was refused, in circumstances.

Bail could be granted on the plea of alibi.

When it was found that plea of alibi raised by accused and evidence produced by prosecution did not lead to the inference of guilt against accused, accused would become entitled to bail his case being that of further inquiry

No flexible rule, could be laid down that plea of alibi could not be considered at all, at bail stage

Such plea in every case was to be considered in the context of its own facts

Special care was to be taken when the plea of alibi was pressed into service at bail stage

Only way to deal with the plea of alibi at bail stage, was to examine broad outlines of the plea and then to draw an inference as to whether benefit be extended to accused

If on the basis of such assessment plea appeared to be reasonable, accused, would become entitled to grant of bail as a matter of right.

No hard and fast rule existed that plea of alibi would not be taken into consideration at the stage of bail, however, circumstances of each and every case were to be looked into.

Tests which were required for genuineness of plea of alibi should be that it had been taken at the earliest, that it appeared to be reasonable and there was no question of manipulation for the same.

Complainant alleged that he along with his brother was riding on a motorcycle and accused persons started firing at them due to which they sustained injuries

Occurrence had taken place on 17.12.2016 at about 1400 hours, whereas the report was lodged at 1445 hours

Primary plea of accused was that he was serving in police department as constable and on 17.12.2016 at relevant time he was present in Police Line

No hard and fast rule existed that plea of alibi would not be taken into consideration at the stage of bail, however, circumstances of each and every case were to be looked into

Tests which were required for genuineness of plea of alibi should be that it had been taken at the earliest, that it appeared to be reasonable and there was no question of manipulation for the same

In the present case accused was arrested on the very day of occurrence from Police Line and had not participated in the commission of offence

Statements of two responsible persons were recorded under S.164, Cr.P.C. who confirmed the stance of accused that at the relevant time he was present in Police Line

Question was as to whether in such like circumstances where two police officers confirm the presence of accused at relevant time, the same could be discarded for the purpose of bail just by holding that plea of alibi was to be determined by Trial Court was not correct

Besides that plea of alibi of accused had not been rebutted by prosecution rather same had been confirmed by Investigating Agency by recording the statements of two witnesses who were categoric on the point that at the relevant time accused was present in Police Line which made the case of accused arguable for the purpose of bail being one of further inquiry

Bail was granted accordingly.

Plea of alibi of accused would not entitle the co-accused for grant of bail as a matter of right.

Investigating Officer had opined that accused had not taken part in the incident, being physically away from the place of occurrence, however, his involvement in the case by way of abetment was not ruled out

Bail could be granted in a capital charge on the plea of alibi if peculiar facts and circumstances of the case so justified

Abdominal injury of the deceased allegedly attributed to the accused but said injury could not cause death of deceased

Bail was allowed in circumstances.

Claimant of plea of alibi was required to discharge the onus cast upon him under Art.119 of Qanun-e-Shahadat, 1984.

In ordinary cases, such plea could be taken as defence but offences related to oil and gas etc. would not be treated as ordinary offence as public at large would be affected

Accused, in the present case, allegedly tampered the gas pipeline

Bail was refused accordingly.

FIR lodged against unknown persons, who were alleged to have caused death of deceased by firing at him while trying to snatch motorcycle from complainant and others

Present accused persons were later implicated during investigation through identification parade

Accused were although not nominated in FIR, but complainant, in clear terms, had stated that he and other eyewitnesses could identify the accused, as they had seen him while making fire upon deceased

Recovery of the motorcycle, used in the crime, had been made from said accused

Said accused had been produced for identification parade on the next day of his arrest, and complainant and eyewitnesses had properly identified him with specific role of causing straight fire on the deceased, which had proved fatal

Plea of alibi raised by the accused was subject to proof at trial

Sufficient and reasonable grounds, therefore, existed to believe involvement of the accused in present case

Bail was refused to said accused

Other two accused had been involved in present case after nineteen days of the incident, after further statement of complainant, which was without any source

Case of said accused, therefore, required further inquiry, as no specific role had been assigned to them

Bail application of main accused was rejected and those of the others were accepted accordingly.

Plea of alibi being special plea, was required to be introduced as soon as possible, when there was sufficient evidence available with the defence to prove its plea

Such evidence was to be produced during course of investigation; in case of failure of Investigating Officer to do the needful, same was to be brought on record with interference of remanding court or thereafter by the Trial Court.

Plea of alibi could not be judged at bail stage.

Variations, if any, were not such as would raise reasonable doubt and in any case, were to be expected given the fact that evidence was recorded some years after the incident

If the evidence of prosecution witnesses been letter perfect, marching as it were, in lockstep, that would have been something that would have caused concern

Robustness of prosecution evidence to the standard required in a criminal case had been made out

Evidence produced by accused in support of plea of alibi taken was weak and of doubtful nature, and the same was insufficient to create reasonable doubt in what had been deposed by prosecution witnesses

Accused failed to make out a case for his acquittal

Appeal was dismissed in circumstances.

Onus would shift on the prosecution to disprove such a document.

Accused surrendered before police himself along with a letter from the Commanding Officer of his Scouts unit to the effect that accused was on duty in a different city on the day of the occurrence

Statements of five persons from the Scouts unit of the accused were also produced which mentioned the fact that accused was on duty in a different city on the day of the incident

Accused insisted upon his plea of alibi at the earliest opportunity before the police authorities and also stated the same in his statement under S.342, Cr.P.C. before the Trial Court

Document had been introduced in evidence to substantiate plea of alibi taken by accused, therefore, onus shifted on the prosecution to disprove such a document, which had not been done in the present case

Doubt existed regarding presence of accused at the scene of incident, benefit of which had to go to him

Appeal was allowed, impugned judgment of High Court was set aside and accused was acquitted of the charge.

Accused and co-accused persons were alleged to have fired at the complainant and his brother, which resulted in the latter's death, while the complainant escaped unhurt

Motive for the alleged occurrence was previous blood feud between the parties

Contents of F.I.R. showed that accused was armed with .30 pistol and made indiscriminate firing but no empties of said bore pistol were recovered from the place, where accused was shown to be present on the site plan

Post mortem report and recovery memo suggested that only Kalashnikov and shot gun had been used in the commission of the crime

Complainant and his deceased brother were at a very short distance from each other at the time of occurrence, but complainant did not receive any bullet or pellet injury

Strangely Trial Court had considered and allowed plea of alibi in case of co-accused but did not do the same in case of the accused, despite the fact that both of them were placed in column No.2 of the challan

No prohibition existed in law for granting bail on plea of alibi

Plea of alibi taken by accused did not appear to be an afterthought and same was taken on the first day when he surrendered before the court

Case against accused was one of further inquiry, clearly falling under S.497(2), Cr.P.C.

Accused was granted bail, in circumstances.

No prohibition in law to grant bail on such plea.

Accused had not performed any overt act towards the occurrence and was shown to be armed with firearm and guarded his co-accused but non recovery of firearm from accused negated the allegation levelled in the F.I.R.

Police had collected only one empty from the place of occurrence, which was fired by co-accused at the deceased and recovery of such single empty further strengthened the case of accused that he did not fire at the time of occurrence

Accused had raised plea of alibi mentioning that at the time of occurrence he was offering prayers in a mosque, which fact was supported by the statements of witnesses and the police had verified the version of the accused and cleared him from the present case

Absconsion of accused was no ground for refusing bail when he had otherwise made out a case of bail from the facts of the case

Accused was admitted to bail accordingly.

Interim pre-arrest bail granted to accused was recalled in circumstances.