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Criminal Miscellaneous No. 1936lB of 1985, decided on 3rd September, 1985.

‑‑‑S.497‑‑Penal Code (XLV of 1860), Ss. 302, 307, 379, 148 & 149‑‑Bail, grant of‑‑Role attributed to accused who was allegedly empty handed was only of raising of Lalkara‑‑Plea of alibi raised by accused before Police found to be correct by Investigating Officer and accused was found innocent by him‑‑Accused, held, was entitled to bail.

Ibrahim v. Hayat, Gul etc. 1985 S C M R 382 rel.

Ch. Refique Ahmad Bajwa assisted by Shaukat Rafique Bajwa for Petitioner.

Farooq Baidar, Asstt. A.‑G. with Ch. Abdul Rashid for the Complainant.

Date of hearing: 3rd September, 1985.

Vide F.I.R. No. 224, dated 11th July, 1985, Police Station Shahdara, Lahore, registered a case against the petitioner and others under the provisions of sections 302, 307, 379, 148 and 149 of the P.P.C. The maker of the F.I.R., Rahim Bekhsh alleged that on 11th of July, 1985, at about 11 a.m. his son Nazir Ali was sleeping on a cut with‑his licensed .12 bore gun. It was alleged that the petitioner who was empty handed alongwith Liaqat Ali, Muhammad Ishaq, Rehmat and Younus, all armed with guns reached near the Cot of his son. The complainant further alleged' that all of them including petitioner raised Lalkara. The complainant refrained them to commit illegal act, but allegedly Liaqat Ali and Muhammad Ishaq picked up the gun of Nazir Ali deceased, the son of the complainant. The deceased Nazir Ali awoke from his sleep and Rehmat fired a shot on the abdomen of Nazir Ah deceased. Ishaq allegedly caused injuries to the deceased with the butt of the gun and then all four persons namely Liaqat Ali, Ishaq, Rehmat and Younus fired with their respective guns at the complainant. The complainant allegedly saved himself by taking shelter and the assailant escaped from the scene of occurrence.

2. In support of this bail application, it is contended, that the petitioner was empty handed and had only raised Lalkara. It has beer, further submitted, that the petitioner and the complainant side are old enemies, and the litigation in respect of some piece of land is already pending between the parties. On behalf of the petitioner, it has been further contended, that the petitioner was not present at the scene of occurrence and has been falsely implicated. The petitioner pleaded his alibi before the police. The D.S.P., the Investigating Officer has also appeared in the Court and has conceded that the plea of alibi of the petitioner has been found to be correct and he was innocent.

3. I have perused the entire record of the case and also documentary evidence produced by the petitioners in support of his alibi. The petitioner has produced a certificate issued by the Mayor Corporation of the city of Lahore, in which it has been certified that the petitioner alongwith his companions remained with the Mayor in his office from 8 a.m. to 10 a.m. It was further contended, that after seeing the Mayor, the petitioner proceeded to see one Col. Imtiaz Chaudhry, Deputy Mohtasib‑e‑Aala, Lahore and remained with him for half an hour, and thereafter, the petitioner went to the Officer, Deputy Martial Law Administrator and had an interview with Major Muhammad Akram in the D.M.L.A. Office at about 11.05 a.m. and remained with him till 11.45 a.m. On the direction, the aforesaid Major Muhammad Akram, the petitioner proceeded to see one Major Azad of 52 Brigade. Later in the hand of Major Muhammad Akram, addressed to Major Muhammad Azad requesting him to see the petitioner has also been produced.

4. In this view of the matter, the case of the petitioner is covered by the dictum laid down by the Supreme Court of Pakistan in the case reported Ibrahim v. Hayat Gul etc. 1985 S C M R 382. The Supreme Court of Pakistan, in aforesaid case observed as under:

"Section 497, Cr.P.C. does not leave it to the discretion of the Court to with hold bail to a person accused of a non‑bailable offence. It has to be allowed to him as of right under this provision if an important prior condition is fulfilled, namely, that the officer incharge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion or consideration of the entire material that "there are no reasonable grounds for believing that the accused has committed non‑bailable offence."

5. Following the above rule of law, in my view, the petitioner is entitled to the grant of bail. Accordingly, the petitioner shall be admitted to bail provided he furnishes security in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of A.C. Lahore.

H.A.K. Bail granted.

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