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Criminal Bail Application No. 180of 1987, decided on 26th April. 1987.

‑‑‑Ss. 497 & 498‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail‑‑Plea of alibi can be pressed into service at the bail stage but it is to be supported by some evidence which prima facie inspires confidence.‑‑[Alibi].

Iqbalur Rehman v. The State P L D 1974 SC 83; Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another 1975 S C M R 219; Muhammad Fayyaz Ahmad v. The State 1976 S C M R 183 and Akram Khan v. The State and another 1978 S C M R 242 ref.

‑‑‑Ss. 497 & 498‑‑Penal Code (XLV of 1860), S. 302/34‑‑Bail before arrest‑‑Basic question which requires consideration in an application for bail before arrest is as to whether applicant has been able to show that he was falsely implicated on account of mala fide on the part of prosecution or even on the part of complainant party‑‑Where murder was committed in broad daylight; F.I.R. was promptly lodged in which name of applicant was mentioned; a specific part was attributed to him; plea of alibi was not supported by such documents on which implicit reliance could be placed al bail stage for granting concession of bail‑‑High Court declined to confirm interim bail in circumstances.

Iqbalur Rehman v. The State P L D 1974 S C 83; Ch. Muhammad Shafi v. Ch. Muhammad Anwar Summa and another 1975 S C M R 219; Muhammad Fayyaz Ahmad v. The State 1976 S C M R 183; Akram Khan v. The State and another 1978 S C M R 242; Criminal Bail 716 of 1984; Criminal Bail 1066 of 1985; Criminal Bail 48 of 1987 and Amir Ali and others v. The State 1984 S C M R 521 distinguished.

The State v. Aziz alias Abdul Aziz P L D 1985 Kar. 27; Murad Khan v. Fazal‑e‑Subhan and another P L D 1983 SC 82 and Jamaluddin v. The State 1985 S C M R 1949 ref.

A.Q. Halepota for Applicant.

Muhammad Ashraf Kazi for the Complainant.

Syed Sarfraz Ahmad Asstt. A.‑G. for the State.

This is an application for bail before arrest filed by applicant Mureed son of Ahmad Khan who is charged under section. 302/34, P.P.C. alongwith co‑accused Ghulam Qadir, and Abdul Wahid for murdering Ghulam Rasool and Ghulam Yaseen on 10‑1‑1987 at 4‑30 a.m. on path of Mithrao Canal near Dossu minor at a distance of two miles from Police Post Sindhri towards south and at a distance of six miles from Police Station Phulah Diyoon, in respect of which the F.I.R. was lodged by Sajjan Khan son of Loung Khan father of deceased Ghulam Yaseen and uncle of deceased Ghulam Rasool at 5‑50 p.m. at the aforesaid police post, which was recorded by Ahmed Hussain, Incharge of Police Post Sindhri. It was alleged in the F.I.R. that the complainant's aforesaid son and nephew alongwith complainant's relative, Urs and Hari Hanif were returning in a jeep after lifting fertilizer from Hingorno Town, which was driven by Ghulam Yaseen. When they reached near Dossu minor via Mithrao Canal path at about 4‑30 p.m., they found a Suzuki Jeep of white colour from behind, which gave horn for stopping the aforesaid jeep in which the deceased were travelling. Deceased Ghulam Yaseen, who was driving the jeep stopped the same and got down and so also deceased Ghulam Rasool it was further alleged that present applicant and accused Ghulam Qadir were armed with rifles, whereas the third accused, Abdul Wahid was armed with a gun. It was also alleged that accused Ghulam Qadir gave a challenge and thereafter fired on Ghulam Yaseen which hit him at his left temple region. In the meanwhile accused Abdul Wahid also fired from his gun at Ghulam Rasool which hit him at his left arm. It was also alleged that the applicant Mureed also fired from his rifle on the back side of Ghulam Yaseen. The applicant filed Criminal Bail Application No. 73 of 1987 in this Court on 25‑1‑1987 for bail before arrest. He was granted protective bail on 25‑1‑1987 upto 4‑2‑1987 for enabling him to approach the Sessions Judge. After that he filed Criminal Bail Application No. 15 of 1987 in the Court of Additional Sessions Judge, Sanghar, who by his order, dated 15‑2‑1987 declined the same. The applicant has, therefore, filed the present application for bail before arrest. He was granted interim bail on 19‑2‑1987. The above application had come up for confirmation of bail on 19‑4‑1987.

2. In support of the above application Mr. A.Q. Halepota has urged as under:‑

(1) That the present applicant on 10‑1‑1987 was in Quetta in a private clinic for treatment and, therefore, he has been falsely implicated.

(2) That the entry in the case diary of the police, dated 2‑3‑1987 indicates that the Police Officer was of the view that the applicant could not have been present at the place of the incident.

(3) That there is a contradiction in the ocular evidence and the medical evidence.

3. On the other hand Syed Sarfraz Ahmad, learned Assistant Advocate‑General and Mr. Muhammad Ashraf Kazi, learned counsel for the complainant have contended as follows:

(1) That in fact applicant was present at the time of the incident and the alleged documents relied upon to establish the plea of alibi cannot be relied upon in presence of the facts that the F.I.R. was lodged promptly in which the applicant was named and a particular part was attributed to him, namely, firing at the deceased at Yaseen from the rifle.

(2) That if the documents which have been produced by the applicant in support of the plea of alibi are not to be relied upon at this stage, the entry in the diary, dated 2‑3‑1987 is of no consequence, particularly in view of the fact that the police has submitted challan against the present applicant as well alongwith one co- accused.

(3) That there is no contradiction between the medical and ocular evidence.

(4) That there is no mala fide on the part of the prosecution and, therefore, the applicant cannot be granted bail before arrest in a double murder case.

4. Mr. Halepota in support of his above first contention that the applicant on the date of incident was in a private clinic in Quetta, has produced a certificate, dated 11‑1‑1987 from one private clinic, namely, National Clinic stating therein that he was an indoor patient from 9‑1‑1987 to 11‑1‑1987. He has also produced three alleged laboratory tests allegedly carried out in the aforesaid National Laboratory, two pertaining to blood and one pertaining to urine. In addition to that he has produced a prescription, dated 9‑1‑1987 on a letter head of Sendamen Provincial Hospital, Quetta, on the back of which there is endorsement to the effect that no spicy food in diet. Advised strict bed rest for one week with effect from 9‑1‑1987 onwards'. It may be mentioned that the date 9‑1‑1987 mentioned in the above endorsement is overwritten probably which has been altered from 7 to 9.

Mr. Halepota has also invited my attention to the fact that the investigating Officer visited Quetta and recorded the statement of one Dr. Mengal of the Sendamen Hospital, Quetta for verifying the above prescription, dated 9‑1‑1987 and the statement of National Laboratory's Assistant, Shafqat, who both supported the above documents. He has further submitted that the doctor, who issued the certificate of National Clinic was not available in Quetta and, therefore, his statement could not be recorded.

On the other hand the learned Assistant Advocate‑General and the learned counsel for the complainant have submitted that the above documents are not reliable as they were first time produced in the Court on 25‑1‑1987 i.e. after the expiry of two weeks in aforesaid Criminal Bail Application No. 73 of 1987 filed on the above date for bail before arrest in this Court in which protective bail was granted upto 4‑2‑1987.

5. Mr. Halepota has also referred to the case‑law on the question that plea of alibi can be raised even at the stage of bail. He has pointed out that the view taken by the Hon'ble Supreme Court in the case of Iqbalur Rehman v. The State reported in P L D 1974 SC 83 (in which the Hon'ble Supreme Court cancelled the bail which was granted by the Lahore High Court on the plea of alibi and in which it was also held that the High Court in the circumstances of the case had fallen into error in granting bail by recording finding as to credibility of evidence as to alibi) was reviewed in the subsequent cases namely, Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another reported in 1975 S C M R 219, Muhammad Fayyaz Ahmad v. The State reported in 1976 S C M R 183 and the case of Akram Khan v. The State and another reported in 1978 S C M R 242.

In the above first case the Hon'ble Supreme Court after referring to the above case of Iqbalur Rehman v. The State P L D 1974 S C 83 observed as follows:‑

"We consider that the learned Judge in the High Court has rightly remarked that the case relied upon by the learned counsel for the petitioner does not spell out an absolute bar in the way of the High Court considering the effect of a plea of alibi for the purposes of bail. We also find that the learned Judge has not given any decision regarding the veracity of the respondent's plea, but has merely remarked that it could not be lightly brushed aside. It will be seen that the alibi in this case comes from a large number of members of the Provincial Assembly, and accordingly it would require serious consideration at the proper time. In view of the affidavits filed on behalf of the respondent, the case would appear to us to fall within the ambit of subsection (2) of section 497 of the Code of Criminal Procedure, namely, a case requiring further inquiry. We were informed at the Bar that the challan has not yet been submitted before any Court. It is, therefore, premature to comment upon the evidence which the prosecution intends to produce against the respondent:"

It may be stated that in the above case 24 members of the Provincial Assembly fled affidavits to the effect that accused was attending the session of the Provincial Assembly at Lahore at the relevant date between 4‑30 p.m. at about 6‑30 p.m. It was urged that the accused could not have been present at the place of incident, which was situated within the jurisdiction of Police Station Saddar, Gujrat.

In the second case the Hon'ble Supreme Court granted the bail on the plea of alibi as on the day of the incident the applicant was in Bangkok and it was alleged that on account of matrimonial dispute he was malafidely involved.

In the third case the Hon'ble Supreme Court maintained the bail order which was granted by the High Court on the plea of alibi. In the above case the accused in support of the plea of alibi produced a certificate from his army unit to the effect that he was on duty in the Peshawar Cantonment which fact was also supported by the Unit Register. It was held by the Hon'ble Supreme Court in the above case that a plea of alibi has to be dealt with on its own merits and would not be possible to lay down a rule of thumb to be followed in all cases.

6. From the above cited three cases, it is evident that the prevalent view is that a plea of alibi can be pressed into service at the bail stage but it is to be supported by some evidence which prima facie inspires confidence. In the present case the applicant is resident of Sanghar. The incident had taken place on 10‑1‑1987 within the limits of Sindhri Police Post and Phulan Diyoon Police Station. Nothing has been brought on record as to why the applicant had gone to Quetta. There is also no material to indicate as to where he stayed m Quetta and when he returned from Quetta to the place of incident, though on inquiry the learned counsel for the applicant after ascertaining from the applicant submitted that he had come back on 12‑1‑1987 after he was discharged from the private clinic on 11‑1‑1987. Without expressing definitely as to the credibility of the documents produced by the applicant, I may observe that at this stage I am not satisfied with the above plea for more than one reason; (1) that the above documents were first time produced before the Court after the expiry of two weeks from the date of incident though the name of the applicant was mentioned in the F.I.R. and a particular part was assigned to him. It is true that Dr. Maingal as per police statement admitted his out door patient slip. As pointed out hereinabove, on the back side of the above slip the date mentioned in the endorsement is overwritten which is evident from the original slip, which is part of record of Criminal Bail Application No. 73 of 1987 and not of this bail application. In the above endorsement, the applicant was advised to take rest for one week with effect from 9‑1‑1987, whereas on the very day he was allegedly admitted in the private clinic namely, National Clinic and allegedly remained there upto 11‑1‑1987. The doctor who issued the certificate was not examined by the police. At this stage I am not inclined to place implicit reliance on the above alleged certificates and the alleged laboratory tests. The above cited cases of the Hon'ble Supreme Court are distinguishable as in the said cases reliable evidence in support of the plea of alibi was produced without any delay.

He has also referred to the three unreported orders of this Court, passed in Criminal Bail 716 of 1984, Criminal Bail 1066 of 1985 and Criminal Bail 48 of 1987, but in my view each case is to be decided on its own facts.

7. As regards Mr. Halepota's contention that the entry in the case diary, dated 2‑3‑1987 recorded by the Police Officer to the effect that it was not possible for the applicant to have been present at the place of incident, it may be observed that he has referred to the case of Amir Ali and others v. The State reported in 1984 S C M R 521, in which the Hon'ble Supreme Court was pleased to rely upon the finding of the Investigating Officer that the accused was not present at the scene of occurrence and it was found to be based on sufficient material. The above case is distinguishable as in the aforesaid case the Investigating Officer examined a large number of witnesses at the place of incident who stated that the applicants were not present at the time of the incident. In the present case the above entry has been made on the basis of the alleged medical certificates and the statements of the two witnesses namely Dr. Mengal and Laboratory Assistant, Shafqat. There is force in the contention of the learned Assistant Advocate‑General and of the learned counsel for the complainant that the very fact that the Investigating Officer submitted challan against the present applicant indicates that it was not his personal view that there was no case against the present applicant. There are statements of two eye‑witnesses named in the F.I.R. in support of the F.I.R. to the effect that applicant was present.

8. As regards Mr. Halepota, learned counsel for the applicant's contention that there is discrepancy in the medical evidence and the ocular evidence, it may be observed that he has pointed out that in the F.I.R. and the ocular evidence the part attributed to the present applicant is alleged firing from his rifle on the back side of the deceased Ghulam Yaseen whereas there is no rifle injury on the back of deceased Ghulam Yaseen. In furtherance of his above submission he has referred to the case of The State v. Aziz alias Abdul Aziz reported in P L D 1985 Kar. 27, in which a Division Bench of this Court while dealing with the principles of further inquiry inter alia held that when there is material inconsistency between ocular evidence and the medical certificate as to the nature of the injuries, or as to the weapons used, or as to the time of the incident and the inconsistency is such that it renders the prosecution story prima facie incredible, it makes the case of further enquiry.

In the present case there is a rifle injury on the deceased Ghulam Yaseen. The entry injury is on the front and the exit injury is on the back. In my view the alleged discrepancy does not belie the basic factum, namely, that the said deceased was hit by a rifle bullet. Since there is an injury on the back which is an exit injury of the rifle; the alleged discrepancy is not of such a nature which prima facie should render the eye‑witnesses' testimony as wholly unreliable at the stage of bail.

9. The Honourable Supreme Court has succinctly dealt with the question of grant of bail before arrest in the case of Murad Khan v. Fazal e‑Subhan and another reported in P L D 1983 SC 82 in which after reviewing the case‑law from 1949 onwards the Hon'ble Supreme Court observed as follows:‑

"The foregoing resume of the case‑law since 1949 and the recent trend of authority would show that notwithstanding varied facts, this Court always thought, it necessary to look for such circumstances which would furnish the assumption that the police was motivated on political considerations or other ulterior reasons, before granting pre‑arrest bail.

In this case, with respect, it is pointed out that the learned Judge in the High Court failed to notice the principles discussed above. Learned counsel for the respondent remained unable to satisfy us with regard to the condition of mala fide of the intended arrest. It was, therefore, not a fit case for grant of anticipatory bail, though after arrest the petitioner would have been at liberty to urge the point on the basis of which the impugned order was passed."

However, Mr. Halepota has referred to the case of Jamaluddin v, The State reported in S C M R 1949 and has contended that the above Supreme Court view has been melowed down. In the above cited case the applicant as per the F.I.R. was empty‑handed and the recovery was foisted on him. There was enmity between the parties. Bail before arrest was granted by the learned Sessions Judge, which was cancelled by a learned Single Judge of the High Court and after cancellation of the bail the accused was remanded to the judicial custody. He was admitted to bail by the Hon'ble Supreme Court in the background of the above facts. In my view the basic principles enunciated in the above case of Murad Khan have not been deviated in the above cited case of Supreme Court. On the contrary the following observations have been made:‑

"In Murad Khan's case to which reference was made by the learned Judge, this Court reiterated the principle that arrest for ulterior motives such as humiliation and unjustified harrassment was a valid consideration for grant of pre‑arrest bail. Similar rule was laid down in Zia‑ul‑Hassan's case."

10. In every application for bail before arrest the basic question which requires consideration, is as to whether the applicant has been able to show that he was falsely implicated on account of mala fide on the part of the prosecution or even on the part of the complainant party. In the present case as pointed out hereinabove the F.I.R. was promptly lodged in which the name of the present applicant has been mentioned. A specific part has been attributed to him. The plea of alibi is not supported by such documents on which implicit reliance can be placed at this stage for granting concession to the applicant of bail before arrest. It is a double murder case committed in broad daylight. I am, therefore, not inclined to confirm the interim bail. I would, therefore, recall the interim order of bail, dated 19‑12‑1987 and would dismiss the above bail application for bail before arrest. However, it will be open to the applicant to apply for bail after his arrest.

M.B.A./M‑110/K Application dismissed.

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