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Criminal Bail Application No. 1066 of 1985, decided on 10th September, 1985.

‑‑‑S. 498‑‑Penal Code (XLV of 1860), Ss. 302, 395 & 396‑‑Pre‑arrest bail, grant of‑‑Accused taking plea of alibi‑‑Application for bail submitted by accused before sessions Court showing that accused had‑ set up case of alibi at very initial stage‑‑Certain documents were referred to support plea of alibi‑‑Documentary evidence of alibi coming from record of police station as such no reason found to doubt authenticity of said document‑‑Motive not found to be convincing‑‑Accused belonging to a respectable family‑‑Case found to be of further inquiry‑‑Pre‑arrest bail, allowed in circumstances.

Ali Sardar v. Gul Moeen 1981 S C M R 860 ref.

A.Q. Halepota for Applicants.

A.S. Shaikh, Addl .A.‑G. for the State.

Applicants Manzoor and Sikandar have applied for bail before arrest in a case arising out of Crime No. 18 of 1985 of Police Station Nau Abad. District Sanghar. The case has been registered under sections 302, 395 and 396, P.P.C.

In relation to an incident that occurred on 9‑7‑1985 at 11‑00 p.m. a report was lodged on the next morning at 1‑00 a.m. at the police outpost and 7‑30 a.m. at the police station.

The allegations in the report were that complainant Hashmat Ali was sitting at his Otaq when five unknown thieves came for theft. The thieves were challenged by the complainant party and they fired. The complainant party also fired in reply and the thieves ran away. Foot prints were tracked and there was a subsequent encounter at the canal bank but the thieves still managed to run away. Qazi Qasim was then contacted by the complainant‑party at the village of Ghulam Haider Wassan. At 11‑00 p.m. when the complainant‑party returned they heard fire‑arm reports and on the light they found that 10 accused persons had come, out of whom 2 had Kalashnikov rifles, six had other rifle, one had a gun and one had a hatchet. Three out of those 10 persons were wearing police uniform. They fired at Saleem Raza who is stated to have died. Some of those accused persons gave injuries to the witnesses with the butts of rifles and there was also grappling. It is stated that the accused persons took away the Toyota pick‑up but at some distance the engine of the vehicle stopped so that they left the same and went away. At the end of the First Information Report it is stated that Manzoor and Sikandar Wassans had been identified. The names of remaining eight persons were not disclosed.

In relation to motive it was stated that Yasin, a relative of the complainant had dispute over land with Sultan Chandio. Although relationship between Sultan Chandio and the two applicants is not stated in the F.I.R. but still it is said that Sultan Chandio and the two applicants had consulted each other and attacked the complainant.

The two applicants have applied for bail before arrest before the learned Sessions Judge, Sanghar, who rejected their bail application. They have now approached this Court for gra6tr of bail.

The case of the applicants is that they have been falsely implicated and on the day in question they were in custody of Head Constable. Abdul Majeed Bajwa, Incharge of police outpost Nawab Wali Muhammad within the jurisdiction of Police Station Kazi Ahmad. Arguments have also been raised that there is nothing to indicate that the two applicants actually fired the fatal shot. It is also averred that light was insufficient for identification. On the point of motive it is averred that the applicants are not at all connected with Sultan Chandio.

On a reading of the order of the Sessions Judge I find that no reference had been made to the plea of alibi which has been forcefully urged before me. I asked Mr. Halepota as to what was the explanation and he produced before me a certified copy of the memo. of the Bail Application that was submitted before the Sessions Judge. Paragraphs 8 and 9 of the said application read as follows:‑‑

"8. That the applicants had gone to attend circumsession ceremony of Ali Dino's son who is brother of Rais Rahim Bakhsh Wassan on 9‑7‑1985 in the morning at Village Pir Budho Taluka Kot Diji, District Khairpur and left that village at 6‑60 p.m. It is submitted that while leaving the village of said Rais Rahim Bakhsh applicant Sikandar Ali had forgotten his revolver's licence there. When the applicants reached at outpost Police Nawab Wali Muhammad of District Nawab Shah, they were detained by the police.

9. That the applicants viz. their driver to village of Rais Rahim Bakhsh who brought the licence, and then they were left off at about 11‑00 a.m. on 10‑7‑1985."

The averments quoted above would clearly show that the applicants had at the very initial stage set up the case of alibi. I had also asked the learned Additional Advocate‑General to produce the station diary maintained at Nawab Wali Muhammad outpost. The station diary, dated 9‑7‑1985 has been produced before me and the same contains some entries which are relevant. Entry No. 7 shows that the police party left for patrol duty at 7‑30 p.m. and entry No. 10 shows that at 8‑00 a.m. on 10‑7‑1985 the two applicants namely Sikandar and Manzoor were released. Entry No. 8 again shows that two applicants Sikandar and Manzoor were brought at the police station by the patrol party. On 10‑7‑1985 a report had also been submitted by Head Constable Abdul Majeed Bajwa of police post Nawab Wali Muhammad to the Station House Officer of the Police Station Kazi Ahmad. A copy under the signature of Head Constable Abdul Majeed has been placed on the record to show that both the applicants were coming by their car towards Kazi Ahmad and that the car was stopped. Driver Asghar Ali was searched but from him nothing was found and thereafter, Sikandar Ali who was sitting in the front seat of the car was searched and from him one revolver was found. The report stated that the persons in the car at once said that they had licence for the revolver but the same has beer, left at the house. The police officer allowed the driver of the car to go home and bring the licence but both the applicants Sikandar and Manzoor were taken to the police station where they were locked.

It would be seen that from the record of the police station facts are disclosed to show that the two applicants had been arrested on the night on which this incident is alleged to have occurred, that they were actually detained in custody and subsequently released.

In this context I asked the learned Additional Advocate‑General and he stated that the documentary evidence comes from the Police Officers of the same police station and there was no reason to doubt the authenticity of these documents.

Mr. Halepota has relied on a case of Ali Sardar v. Gul Moeen, a decision of the Supreme Court of Pakistan reported in 1981 S C M R 860 to canvass that bail could be granted in a case where a satisfactory plea of alibi was raised. In this case the evidence of alibi comes from the records of a police station and such record is not open to suspicion.

On the other points in regard to identification, sufficiency of light or absence of motive, I do not think it fit to make any reference as that might prejudice one or the other party at trial. Suffice it to say, that even motive is not convincing. In addition Mr. Halepota has also urged that the applicants are respectable Zamindars coming from a family that is well‑connected with Niaz Muhammad Wassan, former Minister and Member of the National Assembly.

I am of the view that this is a case which requires further enquiry and I, therefore, admit the two applicants to bail in the sum of Rs.50,000 (Rupees fifty thousand only) each and P.R. and one surety in the like amount to the satisfaction of the Nazir of this Court.

The station diary of Tando Wali Muhammad Police Station has been signed by the Reader of the Court and the same shall be preserved.

H.A.K. Bail allowed.

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