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Criminal Miscellaneous No. 3601-B of 1972, decides) on 5th February 1973.

---S. 498-Bail before arrest-Considerations in dealing with applications for bail before arrest-Different from those taken into account while dealing with cases of arrested persons-Plea of alibi raised on behalf of petitioner and question whether complainant party was aggres sor yet to be decided in inquiry or at trial-Order granting bail before arrest recalled, in circumstances.

Nasim Hassan for Petitioner.

Kh. Muhammad Afzal for the State.

Date of hearing : 5th February 1973.

This is an application moved by Mumtaz Hussain for bail before arrest in case State v. Mumtaz Hussain and others order section 307/326/148(149, P. P. C. registered on the 25th of November 1972 at Police Station, Makhdum Rashid, Tebsil and District Multan. The petition came up for hearing on the 19th of December 1972 when Mumtaz Hussain, petitioner, was admitted to interim bail on the ground that, as contended on his behalf, he had been falsely implicated inasmuch as the incident was said to have taken place at 10.00 a m. on tine 25th of November whereas he had been admitted in the Nishtar Medical Hospital, Multan, at 9-00 a.m., the same day. On the 25th of January 1973 when the petition carne up for purposes of confirmation of the bail order, it was submitted by the learned counsel for the State that the petitioner had in fact, been admitted in the Hospital at 2-00 p.m. and that his allegation in the petition for bail was incorrect. I, therefore, directed the, Investigation Officer to be present in Court with the file of the case.

2. I have heard the learned counsel for the parties.

3. The petitioner in support of his plea of alibi placed reliance on an endorsement dated the 13th of December 1972 of Dr. M. Yusuf Ali Khan. 11. M. W., made by him on an application of the same date moved by the Station House Officer, Police station, Makhdum Rashid, and wherein he had stated that Mumtaz Hussain was admitted at 9-00 a.m. on 25-11-1972. To controvert this position, reliance has been placed on behalf of State on Letter No. 1160/NH, dated the 9th of January 1973 from Medical Superintendent, Nishtar Hospital, Multan to Mr. Hamesh Gul, Magistrate Section 30, Multan, which reads as follows: --

"Reference your endorsement No. Nil dated 4-1-1973.

I am submitting the finding of the enquiry as under: -

(1) It has been proved that patient Mumtaz Hussain son of Allah Bakhsh was admitted through Casualty Department as an emergency on 25-11-1972 between 1-30 p.m. to 2-00 p.m.

(2) I would like to point out that on scrutiny by the Enquiry Officer, it has been reported that the application for issue of certificate from the S. H. O., Makhdoom Rashid to the Medical Superintendent, Nishtar Hospital, Multan, was neither presented to me nor delivered in my office. It has also been observed that a medical certificate had already hem issued before the receipt of this letter by the Registrar of the ward (Medical Unit III) when the patient was in the Hospital. The Registrar is a Gazetted Officer (Junior Class I) and he states that he had only written the date of admission without any mention of time. The certificate issued by the Junior House Physician is invalid as he is not authorised to do so. For that necessary departmental action is being taken.

(3) I would also like to mention that the S. H. O. Police Station, Makhdoom Rashid on finding that the certificate had not been issued by the Medical Superintend, to whom the application was addressed, should not have accepted it, as it A as issued by au unauthorised person. I regret that the proper procedure was not adopted according to the channel."

There may be certain cases in which there is an absolute plea of alibi and it may furnish reasonable ground to admit a person to interim bail. But, in this case there is a serious dispute between the parties about the plea of alibi. Whether or not the petitioner was admitted in the Hospital before or after the incident took place is a matter to be decided in the inquiry or the trial, as the case may be, and no finding regarding the same can be recorded in these proceedings. In the circumstances, the petitioner cannot be admitted to bail before arrest on the ground of such a plea of alibi.

4, Learned counsel for the petitioner neat submitted that the Injury suffered by Muhammad Ali the alleged victim, 1" x 1' and an exit wound 1 " x 1 " and it is alleged that the injury was caused by rifle. He contended that the dimensions of the injury show that it was not caused by a rifle. This again is a matter, which is still to be inquired into and no positive finding is warranted in these proceedings.

5. The learned counsel for the petitioner also submitted that the complainant-party was aggressor and that Allah Ditta also suffered an injury. On behalf of the State it was pointed cut that the Director who examined Allah Ditta has opined that the injuries alleged to have been caused to Allah Ditta could be self-inflicted. Moreover, this is also a matter yet to be inquired into.

6. The considerations which are to weigh with the Court while dealing with an application for bail before arrest are quite different from those which are to be taken into account after a person has been arrested and he moves for being released on bail. There is no allegation made against the police that they have falsely implicated the petitioner in the case.

7. In the above circumstances, I find no grounds to confirm my earlier order dated the 19th of December 1972 whereby the petitioner was admitted to interim bail with notice to the State. His application for bail is accordingly dismissed.

8. I would, however, like to make it clear that the fact that I have dismissed the petitioner's application for bail before arrest shall not, in any way, influence the mind of the learned Magistrate in case an application for bail after arrest is moved on behalf of the petitioner, and he shall deal with such application on its own merits.

Petition dismissed.

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