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Criminal Appeal No. 62 of 1973 in Petitions for Special Leave to Appeal Nos. 317 and 323 of 1973, decided on 30th November 1973.

(On appeal from the order of the Lahore High Court, on the 25^th of September 1973, in Cr. Misc. No. 3344/B of 1973).

Criminal Procedure Code (V of 1898}‑

‑‑ S. 498‑Bail in case under S. 302, P. P. C.‑Sifting of evidence likely to pre‑empt duties and functions of trial Court and to prejudice prosecution or defence‑Not to be undertaken for purpose of granting bail‑Alibi, plea of Accused seeking bail named in dying statement (treated as F. I. R.) and allegations against him corroborated by recoveries of crime empties as well as by gun produced by him‑Held, that High Court, in circumstances, had fallen into error in granting bail by recording finding as to credibility of evidence as to alibi Ascertainment of ‑truth or otherwise of the plea of alibi was function of trial Court‑Bail cancelled by Supreme Court‑ Ponal Code (XLV of 1860), S. 302,

P. S. L. A. No. 317 of 1973

A. S. Salam, Advocate instructed by Sh. Masud Akhtar, Advocate‑on Record for Petitioner.

Iftikharul Haq Khan, Advocate instructed by Ijaz All, Advocate‑on Record for the State.

P. S. L. A. No. 323 of 1973

Allah Wasaya Malik, Advocate instructed by Rana Maqbool Ahmad Qadri, Advocate‑on‑Record for Petitioner.

A. S. Salam, Advocate instructed by Sh. Masud Akhtar, Advocate‑on Record for Respondent No. 1.

Iftikharul Haq Khan, Advocate instructed by Ijaz Ali, Advocate‑on Record for Respondent No. 2.

Date of hearing : 30th November 1973.

ORDER

ANWARUL HAQ, J.‑This order will dispose of Petitions for Special Leave to Appeal bearing Nos. 317 and 323 of 1973, which have arisen out of the same incident.

At 10‑30 a.m. on the 21st of June 1972 an F. I. R. was registered at Police Station Kallurkot in Bhakkar Tehsil of the Mianwali district, concerning an incident involving the death of three persons named Yaqub alias Leela, Islamuddin and Mohammad Khalid, seven. persons were named as the assailants including Iqbalur Rehman (petitioner in Petition No. 317 of 1973), and his brother Iltafur Rehman (respondent in Petition No. 323 of 1973). By an order made on the 25th of September 1973, a learned Single Judge of the Lahore High Court rejected the bail application of Iqbalur Rehman, but allowed bail to Iltafur Rehman mainly on the ground that his plea of alibi was supported by respectable witnesses belonging to the Provincial Civil Service.

Petition No. 317 of 1973 has been moved by Iqbalur Rehman for leave to appeal against the refusal of the Nigh Court to accept his plea of alibi which was supported by over 100 persons of the locality who had appeared before the Police Officer during the investigation of the case. It is submitted on his behalf that the learned Judge in the High Court was not justified in distinguishing his case from that of Iltafur Rehman. It is also contended that Iqbalur Rehman had no connection whatsoever with the house in dispute which had become a bone of contention between the complainant , party and one Abdur Rehman alias Mana. The learned counsel also relied on the fact that the Investigating Officer had expressed the view that Iqbalur Rehman was innocent and that he was not present at the place of occurrence when the incident took place.

We find that the first information report clearly asserts that Iqbalur Rehman was present as a member of the unlawful assembly, that he fired with his gun at Yaqub alias Leela who was hit and died instantaneously. It was stated on behalf of the complainant as well as the State that these allegations in the F. I. R., which was made as a dying statement by the deceased Muhammad Khalid, have been supported by the prosecution witnesses. In the presence of these allegations and the supporting evidence, the High Court was right in observing that the opinion of the Investigating

Officer regarding the innocence of Iqbalur Rehman or his absence from the place of occurrence at the relevant time could not justify the grant of bail at this stage. The plea of alibi put forward by him, and supported by several residents of the locality would have to be examined at the proper time by the trial Court. It could not, therefore, be said that there were no reasonable grounds for believing that Iqbalur. Rehman was guilty of an offence punishable with death or transportation for life. The High Court was, therefore, right in refusing bail. Petition No. 317 of 1973 is, therefore, dismissed.

We now take up Petition No. 323 of 1973 which has been moved by the complainant for the cancellation of bail granted by the High Court to Iltafur Rehman. After hearing the learned counsel for the petitioner as well as for the respondent Iltafur Rehman and the State, we have decided to convert this petition into an appeal, and to dispose it of on the present record.

It may be stated at once that according to the first information report, Iltafur Rehman was present at the spot, that he was also armed with a gun, and that he fired at and killed Islamuddin. However, the learned Judge in the High Court has allowed bail to Iltafur Rehman on the ground that the plea of alibi taken by him was well‑founded.

It is contended that, in the first place, the learned Judge in the High Court was in error in proceeding to record a final adjudication on the evidence relating to alibi, and that in any case the learned Judge had completely ignored the fact that although Iltafur Rehman had been arrested on the 22nd of June 1972, the plea of alibi was not raised until five months later when his brother Habibur Rehman stated before the inspector of the Crimes Branch, to whom investigation of the case had been transferred from the local Police, that Iltafur Rehman was at Lahore in connection with the attestation of some papers relating to the issuance of a passport. It is submitted that soon after his arrest the position taken up by Iltafur Rehman before the Investigating Officer was that he was present at the spot with his licensed gun, but he had run away to Bhakkar owing to fear of,arrest and implication in this case. Lastly, .it is submitted that the High Court has also failed to give any weight to the fact that a crime empty recovered from the spot was found to match the licensed gun produced by Iltafur Rehman on the day of his arrest.

On behalf of Iltafur Rehman, it is submitted by his learned counsel that the local S. H. O. was inimical to Iltafur Rehman as he was being proceeded against departmentally on a complaint made by Iltafur Rehman; and, therefore, he had seen to it that this man was falsely implicated by the complainant party. It is next submitted that Iltafur Rehman had no connection whatsoever with the house in dispute and, therefore, he had no reason to join in the attack on the complainant on this account. The learned counsel further submits that the first information report itself is a suspicious document as it was thumb‑marked by the deceased Muhammad Khalid although he was a literate, person and should normally have signed his dying statement. Lastly, it is contended by Mr. A. S. Salam that the plea of alibi having been supported by two officers of the Provincial Civil Service, who had no motive to perjure themselves for the sake of Iltafur Rehman, and also by the stamp vendor and his relevant. register, the High Court was right in exercising its discretion in favour of Iltafur Rehman, and we should not interfere with the exercise of that discretion, especially when there has already been considerable delay its the finalization of the case.

We have no intention of recording any finding as to the truth o otherwise of the plea of alibi raised on behalf of the respondent Iltafu Rehman, as that is the function of the trial Court. All that we are called upon to examine at this stage is whether this was a case where there were, or not, reasonable grounds for believing that the respondent was guilty of an offence punishable with death or transportation for life. We have already alluded to the allegations contained in the dying statement of Muhammad Khalid, according to which the respondent was not only present at the spot, but he was armed with a gun and actually killed Islamuddin by firing at him. This allegation in the F. I. R. is sought to be corroborated by the prosecution by the matching of the crime empty with the licensed gun produced by Iltafur Rebman on the very next day when he was arrested in connection with this case. There is also the further fact that the plea of alibi was not raised by Iltafur Rehman at the earliest opportunity, and that it was left to his brother Habibur Rehman to raise this plea nearly five months later. In these circumstances it would need an elaborate sifting of the evidence to come to the conclusion that the prosecution allegations were not true and stood negatived by the evidence of alibi produced by or on behalf of Iltafur Rehman at a late stage during the investigation of the case. It is well‑settled that such a sifting is not to B be undertaken for the purpose of grant of bail as that is likely to pre‑empt the duties and functions of the trial Court, and to prejudice the prosecution or the defence.

The contention raised by the learned counsel on behalf of Iltafur Rehman as to the existence of ill‑will between the respondent and the local S. H. O. is also of no avail to the respondent at this stage as such an allegation cannot suffice, by itself, to negative the positive evidence sought to be produced by the prosecution against the respondent. The same remarks would apply more or less to the question of motive.

In the light of the material available on the record we are of the vie that the learned Judge in the High Court was clearly in error in recording a finding at this stage as to the credibility of the evidence of alibi. We, also find that, in any case, the finding is not based on a consideration of C the other relevant factors as pointed out by the learned counsel for the complainant. In these circumstances, there is no escape from the conclusion that this was not at all a case where it could be said that there were no grounds for believing that the respondent was guilty of an offence punish able with death or transportation for life.

We would accordingly accept this appeal, set aside the impugned order of the High CouM and cancel the bail granted to Iltafur Rehman. He shall be taken into custody to stand his trial.

The learned counsel for Iltafur Rehman complained that although then incident took place as long ago as the 20th of June 1972, not much progress. had been made in the finalization of the case. This is a legitimate com plaint. We direct that the enquiry proceedings be completed expeditiously.

R. B. A. Appeal accepted.

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