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Criminal Miscellaneous No. 734/B of 1985, decided on 8th June, 1985.
‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Alibi, plea of‑‑No hard and fast rules, held, could be laid down to either accept or reject plea of alibi at bate stage‑‑Foremost consideration, held further, being judicial satisfaction of Court for purpose of bail.
Muhammad Hussain v. Muhammad Anwar Ahmad Khan and another 1975 S C M R 151; Muhammad Naqi Butt and another v. The State PLD 1976 Lah. 190; Ghulam Sarwar and another v. The State 1984 P Cr. L J 2588 and Iqbalur Rahman v. The State P L D 1974 S C 83 ref.
‑‑‑S. 344‑‑Penal Code (XLV of 1860), S.302‑‑Remand‑‑Contention that petitioner being accused in a murder case, Magistrate was not competent to detain him in judicial lock‑up‑‑Contention, held, having no legal force and order of Magistrate suffered from no illegality, in circumstances.
Iqbalur Rahman v. The State P L D 1974 S C 83 ref.
‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Bail, grant of‑‑Petitioner named in F.I.R. armed with deadly weapons and allegedly using their weapons, resulting in death of four persons‑‑Bail declined, in circumstances.
Ghulam Bari Saleemi, Ijaz Batalvi and M.A. Zafar for Petitioners.
Ghazi M.A. Rashid for the State.
Khawaja Sultan Ahmad for the Complainant.
Date of hearing: 8th June, 1985.
Nirala Hotel on the Grand Trunk Road near Gujranwala was the venue of four murders which took place on 18‑9‑1984, at 8‑30 p.m. Report about this incident was lodged at 9‑45, p.m. by Muhammad Iqbal, a transporters, resident of Mohallah Noor Bava, Street No. 4, Gujranwala, at Police Station Model Town which is at a distance of three Furlongs from the place of occurrence.
Muhammad Iqbal had five brothers Sardar Muhammad, Muhammad Amin, Muhammad Saleem, Muhammad Yousaf and Muhammad Mushtaq. They had strained relations due to previous murders with Iftikhar Ahmad alias Gola, Amjad Saeed alias Maham sons of Fazal Karim, Tariq son of Jalil, and Jalil son of Karim Bux Kashmiri.
When the incident took place, Muhammad Iqbal, his brother Muhammad Amin, their maternal‑uncles Muhammad Din and Muhammad Altaf were returning after seeing their relations from village Bharroki Muhammad Ashraf was at the wheel of Car No. GAC‑5252. They stopped at Nirala Hotel to take their meals. They sat outside the Hotel. Imtiaz Hussain and Khawar Nawaz were already there. They too were having their meals. Light was on.
All of a sudden from the side of Bazar Kabarian, Amjad Saeed armed with rifle, Iftikhar Ahmad armed with carbine, Haroon Rashid, Jalil, Muhammad Aslam, Shahbaz armed with revolvers and Tariq armed with sten gun, came there. Jalil raised Lalkara and said that they had come to settle the previous murders and nobody would be left alive.
Amjad Saeed opened the attack with his rifle. Ashraf was hit. Muhammad Amin, Imtiaz and Khawar were also injured.
Iqbal alongwith his maternal‑uncle Muhammad Din and Muhammad Altaf took shelter under the tables and chairs.
In the meanwhile, Car No. GAC‑4800 came there from Sialkoti Chowk. The accused party tried to stop it in order to take it forcibly. They ran along with the car for some distance but when it did not stop, Amjad Saeed, Tariq, Jalil, Haroon Rashid and Iftikhar started firing at the car with their respective weapons. The glasses were completely smashed. Muhammad Ilyas and Muhammad Ijaz sons of Miraj Din, residents of 196/13, Model Town, who were in the car, were seriously injured. Muhammad Ryas, after a short while, succumbed to the injuries in the car. The accused party ran away.
Muhammad Amin, who was injured, was taken to the Civil Hospital, Gujranwala. He died there.
The accused were seven in number:‑‑-
Four persons Muhammad Ashraf, Imtiaz Hussain, Muhammad Amin and Muhammad Ilyas were killed as a result of indiscriminate firing. It is alleged that Amjad Saeed, Haroon Rashid and Muhammad Shahbaz were the persons responsible for this killing.
The investigation was conducted by the local police. Later on, it was transferred to C.I.A. Inspector Malik Tahir Muhammad took over.
After arrest the petitioners applied for bail to the Sessions Judge, Gujranwala. The application was marked to the Additional Sessions Judge. When the petition came up for hearing before him it was brought to his notice that the case was to be tried by the Martial Law Authorities. Therefore, he declined to entertain the petition.
Thereafter, bail application Criminal Miscellaneous No. 52‑B of 1985 was moved before this Court. While the matter was pending before me, the Law Officer appeared and submitted that the Martial Law Authorities had changed their mind. Now they wanted the case to be tried by a regular criminal Court. I, therefore, directed the petitioners to first move the Sessions Court. The petitioners accordingly submitted an application for bail to the Sessions Court. Their application was again dismissed by order, dated 20‑3‑1985. The petitioners have now come to this Court and want to be released on bail till the trial concludes.
Learned counsel for the petitioners at the very outset submitted that he did not want to enter into merits because he was asking for bail on the plea of alibi.
He submitted that the petitioners left Lahore for Karachi on way to Bangkok by P.I.A., on 16‑9‑1984. In the morning of 18‑9‑1984 they left for Bangkok by Air France. They returned to Pakistan on 26‑9‑1984. On 9‑10‑1984, they appeared before police. They produced their passports, counterfoil of the tickets and other documents of their stay abroad. Everything was found intact. The police checked up with the Immigration Department and did not find anything against the petitioners.
Learned counsel submitted that the plea of alibi was genuine. It was not an afterthought. The petitioners as such were entitled to bail. In support of this, he relied on Muhammad Hussain v. Muhammad Anwar Ahmad Khan and another 1975 S C M R 151.
Learned counsel submitted that in this, case, affidavits of twenty Advocates were filed. The plea was of alibi. The accused were enlarged on bail.
Another case relied upon was that of Muhammad Naqi Butt and another v. The State P L D 1976 Lah. 190. In this case the accused also took up the plea of alibi. All the accused were admitted to bail.
Learned counsel cited number of other cases in support of his contention regarding plea of alibi and submitted that the plea has always provided very strong ground for bail in a capital offence.
Although in the beginning learned counsel submitted that he would not like to take any other plea, but as he proceeded‑‑with his arguments he took up other grounds; first, that the prosecution initially, charged the three petitioners of murder, but later on, section 109, P.P.C., was added. Learned counsel submitted that this was a manoeuvre by the police to deprive the petitioners of the concession of bail. It was submitted that the prosecution created evidence by introducing two witnesses, whose statements were recorded under section 161, Cr.P.C., which were to the effect that they, heard the petitioners hatching the conspiracy to kill Muhammad Amin. According to the learned counsel this amounted to the two versions of the incident. The case as such called for further inquiry.
Last of all, learned counsel raised another technical plea which was that the detention of the petitioners in the judicial lock up was illegal. The Magistrate had no power to grant remand. Reliance support of this plea was placed on the case of Ghulam Sarwar and another v. The State 1984 P Cr. L J 2588.
Learned counsel appearing on behalf of the State opposed bail application on the ground that the petitioners were accused offence punishable with death or imprisonment for life. It was argued that there was evidence on record to connect them with the offence.
With regard to the plea of alibi, learned counsel relied on case of Iqbalur Rahman v. The State P L D 1974 S C 83, wherein it has been observed:
"We have no intention of recording any finding as to the truth or otherwise of the plea of alibi raised on behalf of the respondent. Iltafur Rahman, as that is the function of the trial Court 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."
Khawaja Sultan Ahmed learned counsel for the complainant opposed the bail application tooth and nail. He submitted that petitioners had killed four innocent law‑abiding citizens. They were the murderers.
He submitted that the plea of alibi could be easily procured any stage. All that was required to arrange for such a plea was the necessary means. Learned counsel submitted that the petitioners those means at their disposal. Learned counsel contended that at the stage it was immaterial whether the petitioners had been charged of murders or conspiracy. He contended that this aspect did not amount to two versions nor did it bring the case of the petitioners within the purview of further inquiry.
With regard to the last point urged by the learned counsel for the petitioners, learned counsel submitted that the challan was initially submitted before Martial Law Authorities. At first they thought of taking the cognizance. Later on, for reasons best known to the Martial Law Authorities they declined to proceed with the matter. The case as such came back to the regular criminal Court for trial. Therefore, the cage relied upon by the learned counsel for the petitioners referred to above Ghulam Sarwar and another v. The State supra, is not applicable to the facts of this case.
Learned counsel drew my attention to the passports produced in Court and submitted that the passport of Amjad Saeed was initially submitted from Karachi, on 17‑9‑1984 whereas he left Lahore on 16‑9‑1984. He flew to Bangkok, on 18‑9‑1984. Similarly, My attention was drawn to the passport of Shahbaz. On the photograph on this passport there was thumb- impression of Shahbaz while on Embarkation and Disembarkation cards there were signatures of Shahbaz. Counsel submitted that this created doubt about the genuineness of the passport.
Learned counsel argued that if the petitioners were so sure of their innocence, they should have surrendered themselves before the Court of law or appeared before the police immediately after their return from abroad whereas they were arrested by the police, on 9‑10‑1984.
First of all, I would like to deal with the plea of alibi. Admittedly in a number of cases including those of murder, plea of alibi was taken into consideration and the accused were admitted to bail. Nevertheless, this does not mean that whenever a plea of alibi is taken it must be accepted as of rule and the accused enlarged on bail. The plea is to be considered with reference to the context. Special care is to be taken when such a plea is pressed into service at the bail stage, because at such a stage no express finding for or against such a plea is to be given as this is likely to be misused by either side at the time of trial. Hence the question arises as to how such a plea is to be dealt with 'and when its benefit is to be extended to an accused for the purpose of bail.
This is a difficult question to answer. The only way to look into this aspect is to examine the broad outlines of the plea and then to draw an inference as to whether it is in the interest of justice to accept the plea to the extent that its benefit be extended to the accused at the bail stage.
I, first take up the case of Shahbaz. His passport was issued from Lahore on 24‑1‑1983. His permanent address shown is Gali Master Chiragh Din, Muslim Town, Gujranwala. On the photograph on his passport appear thumb‑impression whereas on the Disembarkation Card, dated 18‑9‑1984 the signatures are 'Muhammad Shahbaz' and on the Embarkation Card, dated 26‑9‑1984 the signatures shown are only 'Shahbaz'. His signatures were also sent to the Handwriting Expert. His opinion is on the record. I do not wish to refer to that opinion. I reserve my own opinion.
Haroon Rashid's passport was issued on 28‑1‑1984 from Gujranwala, whereas passport of Amjad Saeed was issued, on 17‑9‑1984 from Karachi. His permanent address is Street No. 3, Muhammad Pura, Gujranwala. His temporary address is House No. B‑11, Maripur, Karachi.
I am fully aware of the fact that there is no legal bar for a citizen to obtain a passport anywhere within the country on payment of urgent fed. But one has to see the normal course of events. A person flying out of the country on 18‑9‑1984 would not leave the things to the last minute. He would make all the necessary preparations much before the time. But I find that passport was received only a day before he was to fly out of the country. It is interesting to note that the permission for foreign exchange was granted in November, 1983. It was not availed of till 17‑9‑1984.
The murders took place, on 18‑9‑1984 at 7‑30 p.m. The time of flight from Karachi to Bangkok shown on the ticket is 0210 Hrs. Question arises whether it was a co‑incident or something more than that. The answer to that is to be found by the trial Court at the time of the trial when plea of alibi is to be scrutinized.
In the present supersonic age, time and distance are of no consequence.
As already observed by me, no hard and fast rules can be laid down to either accept or reject the plea of alibi. In this regard the first and foremost consideration is the judicial satisfaction of the Court purpose of bail.
or the reasons mentioned above, I am not satisfied that in this case the plea of alibi is so strong as to enlarge the petitioners on bail and the same is accordingly rejected.
With regard to the remaining two contentions, I do not think even those have any force. It is open to the prosecution to charge the accused either under section 302 or 109, P.P.C. Things would be crystallised when the trial commences. At this stage I am not inclined to accept that this is either a case of two versions or it calls for further inquiry. This contention is repelled.
Similarly I do not think that there is any force in the submission of the learned counsel that the petitioners' detention is illegal.
I have not come across any illegality so as to infer that the detention of the accused in the judicial lock up was illegal. I have considered the principle laid down in the case of Ghulam Sarwar and another v. The State supra. This is not applicable in this case.
In the F.I.R. seven persons including the three petitioners were named. They were armed with deadly weapons. The allegation against them is that they actually used those weapons as a result of which four persons were murdered. Two of them Muhammad Ilyas and Muhammad Ijaz had nothing to do with the rivalry of the parties. They were quite innocent. They had no interest in either side. This is not a fit case for bail.
S.G.D. Bail refused.
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