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Criminal Bail Application No. 1194 of 1985, decided on 13th October, 1985.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/307/34‑‑Bail‑‑Alibi‑‑No legal bar exists on Court to take plea of alibi into consideration for purpose of granting bail if Court is satisfied from material placed before it that plea of alibi raised in support of bail application was not without force.‑‑[Alibi].

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/307/34‑‑Bail‑‑Accused producing certificate from his office to effect that at alleged time of occurrence he was on duty‑‑Correctness of certificate not controverted‑ Contention that deceased had only one injury which had been attributed to co‑accused not denied‑‑Case of accused one of further inquiry‑‑Bail granted.

Iqbalur Rahman v. The State P L D 1974 S C 83; Khalid Jawaid Jilan v. The State P L D 1978 S C 256; Mst. Janatan Bibi v. Sher Muhammad and another 1968 S C M R 795; Muhammad Fayaz Ahmed v. The State 1976 S C M R 183 and Akram Khan v. The State 1978 SCMR 242 ref.

Umar Farooq Khan for Applicant.

A.A. Muhammadally, Asstt . A .‑G. assisted by Ghulam Mustafa Memon for the State.

This is a bail application which has been moved on behalf of the accused Sakhi Sultan who alongwith, three others namely, Hanif Shah, Muhammad Aslam and Altaf Hussain, is facing trial under section 302/307/34, P.P.C.

The prosecution case as disclosed in the F.I.R. is that Abdul Jabbar, father of complainant Abdul Ghaffar has certain property including the disputed house, which is looked after on his behalf by his son Muhammad Nawaz. About 3/4 months prior to the occurrence he let out the disputed house to Mst. Bashiran. However on the day of occurrence which took place on 5‑2‑1985, at about 10.00 a.m. Hanif Shah went in the company of some persons to the said house and threw away the luggage etc. of Mst. Bashiran outside the house which he ultimately locked. On the same day at about 8.00 p.m. Hanif Shah accompanied by Sakhi Sultan, Altaf and Aslam went to the said house again. This time they were seen keeping some luggage in the house. At that time Hanif Shah and Altaf had revolvers and Sakhi Sultan and Aslam had shot guns. It is alleged that complainant and his brother Abdul Sattar tried to restrain Hanif Shah and his companions from putting the luggage in the said house. They were also followed by complainant's sister Feroza and his sister‑in‑law Rajab Khatoon. On seeing the complainant's party Hanif Shah and his companions resorted to indiscriminate firing as a result of which the complainant, Abdul Sattar, Mst. Feroza, Mst. Rajab Khatoon and others namely, Tariq, Abdul Rashid, Jumma and Ruqayya received injuries. The accused then fled away. Amongst others Nazir and Yaqoob witnessed the occurrence. The complainant's brother Abdul Sattar subsequently expired on his way to the hospital. The Police after completing usual investigation challaned the accused.

I have heard the arguments of the learned counsel for the parties and with their assistance have perused the relevant documents.

The first contention raised by the applicant's counsel was that at the alleged time of occurrence the applicant was on his duty as Security Guard at Karachi Shipyard. In support of his contention he has produced certificate of Deputy Manager (Personnel) of Karachi Shipyard and Engineering Works Ltd. It seems the correctness of the certificate has not been questioned. The learned counsel for the complainant however submitted that the plea of alibi cannot be taken into consideration at the bail stage. In support he placed reliance on Iqbalur Rahman v. The State P L D 1974 S‑ C 83, in order to show that since such plea requires sifting of its truth, it cannot be considered at the bail stage. In reply to his argument the learned Assistant Advocate‑General referred to the case of Khalid Jawaid Jilan v. The State P L D 1978 S C 256 wherein the plea of alibi supported by affidavit of the Medical Practitioner was relied upon for the purpose of granting bail. The relevant words used in this connection are:‑

"But for the purpose of bail application we cannot ignore the fact that medical practitioner of high repute who does not have any ostensible connection with the petitioner supports the petitioner's case."

The learned counsel for the applicant also cited following cases to reinforce his argument that plea of alibi can be considered at the bail stage:‑

(1) Mst. Janatan Bibi v. Sher Muhammad and another 1968 SCMR 795.

(2) Muhammad Fayaz Ahmed v. The State 1976 S C M R 183.

(3) Akram Khan v. The State 1978 S C M R 242.

In the last mentioned case the view taken was that plea of alibi raised at the bail stage has to be dealt with on its own merits. It was further held that it was not possible to lay down a rule of thumb to be followed in all cases of pleas of alibis. In the case covered by the said authority the High Court had taken into consideration the certificate issued to the accused (employee of defence forces) from his unit stating his presence on duty et the time of occurrence. The order of the High Court granting bail was held neither unreasonable nor perverse.

From the above authorities the legal position that emerges is that if the Court is satisfied from the material placed before it that plea of alibi raised in support of the bail application was not without force, there is no legal bar on the Court to take such plea into consideration for the purpose of granting bail

In the instant case, as has been pointed out above, the correctness of the certificate issued by the Deputy Manager Shipyard has not been controverted. The only argument emphasized by the learned counsel for the complainant was that plea of alibi cannot be taken into consideration at the bail stage. In view of the dictum laid down above such argument is obviously untenable.

It was next contended by the learned counsel for the applicant that police took 13 days in effecting the arrest of the accused. His argument was that since his name has transpired in the F.I.R. and he was readily available, the police had no ostensible excuse to postpone his arrest for so long. The argument is not without force. Even the learned counsel for the complainant was unable to explain the delay cussed in the arrest of the accused.

Apart from above it was also pointed out by the learned counsel for the applicant that the deceased had only one injury which has been attributed to co‑accused Hanif Shah. This was not denied by the learned Assistant Advocate‑General and the learned counsel for the complainant.

For above reasons the learned Assistant Advocate‑General shared the argument that the case of the applicant called for further inquiry and he had no objection to grant of bail to the applicant. Accordingly bail was granted to the applicant in the sum of Rs.25,000 and P.R. of the same amount to the satisfaction of the trial Court by short order, dated 13‑10‑1985 for the reasons to be recorded separately. Above are the reasons in support of the said short order.

M. Y. H. Bail granted.

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