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Petition for Special Leave to Appeal No. 267 of 1967 decided on 13th October 1967.
(On appeal from the order of the High Court of West Pakistan, Lahore, dated the 2nd October 1967 in Criminal Miscellaneous No. 4289 of 1967).
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----Charge for offences under Ss. 302/32 & 201/452, P. P. C.-Bail before arrest on plea of alibi-High Court refusing prayer on ground that examination of plea being a question of fact was for trial Court to consider-Order of High Court upheld and petition for leave to appeal dismissed-Criminal Procedure Code (V of 1898), S. 498-Constitution of Pakistan (1962), Art. 58 (3).
Muhammad Anwar Raja, Advocate Supreme Court instructed by M. B. Khizar Tamimi, Senior Attorney for Petitioner.
Nemo for the State.
Date of hearing: 13th October 1967.
This is a petition for special leave to appeal from an order of a learned Single Judge of the High Court of West Pakistan, Lahore, refusing to grant the petitioner bail before arrest.
The petitioner, who is a Headmaster in Government Middle School, Cheena Aria, Tehsil Kasur, has been charged under section 302/32 and 201/452 of the Pakistan Penal Code. He, prayed for bail before arrest on the ground that he was actually admitted as an in-door patient in the Town Committee Hospital, Kot Radba Kishan, on the 1st of September 1967, and stayed there till the 6th of September 1967. He could not, therefore, have participated in the incident, which is alleged to have taken place on the 3rd of September 1967.
The learned Judge at first called for the register of the Hospital but at the time of hearing he refused either to look into the register or to enter upon an examination of the plea of alibi set up by the petitioner, as, according to him, this was a question of fact which was for the trial Court to consider.
The petitioner now seeks special leave to appeal and contends that even though in the first information report it has been alleged that it was he who used a gun in the incident the High Court should have, considered the plea raised by him to see if there was any prima facie case at all.
We are, however, unable to agree with this contention, for, in the absence of anything to show that the genuineness of the register was acceptable to the prosecution it could not be said that no investigation into facts was necessary. In the circumstances the High Court was right in refusing to go into the above question which would necessarily have also decided the case against the petitioner on merits at this stage. This petition is, in our opinion, without any substance and is, accordingly, dismissed.
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