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Criminal Miscellaneous Application No.20 of 1987, decided on 4th March, 1987.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/147/149‑‑West Pakistan Arms Ordinance (XX of 1965), S. 13‑D‑‑Bail‑‑Plea of alibi‑‑Accused, held, could plead his defence on plea of alibi whenever he felt appropriate and at opportune moment available to him and there was no legal bar on Court to take such plea into consideration for purpose of granting bail.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S. 302/147/149‑‑West Pakistan Arms Ordinance (XX of 1965), S. 13‑D‑‑Bail‑‑Application for cancellation‑‑Accused in jail since his arrest and his trial not yet commenced‑‑Sessions Court granting bail to accused inter alia on ground of alibi‑‑Order of Sessions Court neither arbitrary nor perverse‑‑Application for cancellation of bail refused in circumstances.

1982 S C M R 1006; 1986 P Cr. L J 117; Akram Khan v. The State 1978 SCMR 242; Khalid Javed Gillani v. State P L D 1978 S C 256; Muhammad Shafi v. Muhammad Anwar Sama 1975 S C M R 219 and Muhammad Afzal v. Nazir Ahmed 1984 S C M R 429, 521, 1378 ref.

Muhammad Daud A. Baloch for Applicant.

Nasir Khan Khoso for Respondent No.1.

Zawar Hussain Jafri A.A.G. for the State.

This application has been filed by the complainant Billand Khan for cancellation of bail granted to the opponent Mohkmmdin by order dated 23‑12‑1986 of the learned Sessions Judge, Jacobabad in case under section 302/147/148/114 PPC and 13‑D of Arms Ordinance being crime No.39 of 1986 of Police Station Thul registered by complainant Billand Khan, who lodged F.I.R. on 22‑4‑1986 at 7.00 P.M.

I have heard at length, the arguments of Mr. Mohammad Daud A . Baloch the learned counsel for the Complainant and Mr. Nasir Khan Khoso, learned counsel for the accused opponent and Mr. Zawar Hussain Jafri AAG, who has appeared on behalf of the State.

Prosecution case according to F.I.R. is that complainant alongwith his brother Amanullah and Peer Jan reside in separate house adjacent to each other and that on the day of occurrence he alongwith his brother and son Khairuddin were harvesting the crop, it was tephari time accused Jam who was empty handed and accused Mohkumdin, Abdul Qadir, Wadhal and Mohammad Hanif armed with guns came there and assaulted the complainant party in a result of which Amanullah was killed due to fires by accused persons. Police after usual investigation challaned the accused persons.

The learned counsel for accused Mohkumdin moved application for bail on the plea of alibi on 17‑12‑1986 before the Sessions Judge, Jacobabad, it was urged before the trial Court that opponent in this application Mohkumdin was neither present at the time of occurrence nor he had participated in the commission of crime and that Muhkumdin was suffering from serious pain of Peptic Ulcer and he was admitted as indoor patient in the Rural Health Centre, Mirpur, Thul. Such certificate was produced which is kept on record as Annexure 'C' showing the opponent having remained as indoor patient from 20‑4‑1986 to 26‑4‑1986. This medical certificate is signed by Medical Officer bearing official number etc: Muhumdin opponent is shown to have been discharged from Hospital and recommended for Expert treatment at Chandka Medical College Hospital, Larkana. Opponent Muhkumdin was accordingly admitted in Chandka Medical College Hospital on 26‑4‑1986 and discharged from hospital on 30‑4‑1986 to which effect also certificate is produced and placed on record as Annexure D . The incident in the case is said to have taken place on 22‑4‑1986 when according to the two certificates the opponent was in the Hospital as indoor patient. The learned Sessions Judge granted bail to the opponent apparently on the aforesaid plea under detained, impugned order.

Mr. Mohammad Daud Baloch, the learned counsel for the applicant complainant has urged that the bail ought not to have been granted on the ground of alibi and it is contended by the learned counsel that the plea of alibi is available to the accused person only at the end of the trial and only then it should be considered. Learned counsel relied upon the decision 1982 S.C.M.R. 1006 and has argued that case is set for hearing as such this was the stage when bail should have been declined in support of his contention the learned counsel Mr: Daud Balouch has referred to a court notice Annexure 'E' showing the trial of the case was notified to be fixed for 26‑11‑1986 but when asked the learned counsel for applicant and AAG inform that the case has not yet started and formalities still remained to be complied with to make the case ripe for regular hearing. The very argument of applicants, Advocate was frustrated and is devoid of any force. The learned Counsel appearing for opponent (Mr. Nasir Khan Khoso) has cited decision of this court reported in 1986 Pak.Cr.L.J. 117 (Sakhi Sultan vs: The State). Re‑inforcing his arguments that the plea of alibi can be considered at the bail stage the learned counsel for opponent referred other relevant authorities, in one Akram Khan vs. The State 1978 S.C.M.R. 242 the view taken was that plea of alibi raised at the bail stage has to be dealt with on its own merits in that case a certificate issued from Unit showing presence of accused. On duty at the time of occurrence was taken favourably into consideration and the order of the High Court was held to be neither unreasonable nor perverse.

The two medical certificates produced by the opponent Mohkumdin the correctness of which is not controverted satisfactorily can not on the face of it be ignored exploration of the proposition reveals that even Honourable Supreme Court has taken view that bail can be granted on the basis of defence of alibi depending on the facts and circumstances of the case and there is no general Principle that bail cannot be granted solely on the ground of alibi advanced by the accused and following cases are reference:‑

(1) Khalid Javeed Gillani vs: State (PLD 1978 S.C. 256)

(2) Muhammad Shafi vs: Muhammad Anwar Sama (1975 S.C.M.R. 219)

(3) Muhammad Afzal vs: Nazir Ahmed (1984 S.C. M.R. 429,521, 1378)

The learned counsel for applicant /complainant has repeatedly urged that the opponent has delayed the disclosure of plea of alibi as such adverse presumption be drawn that it is manipulated by opponent at later stage.

I have very carefully with the assistance of the learned counsels of the parties perused the relevant documents. I have no doubt in my mind merely because accused/ opponent has come out with his defence of alibi at late stage by itself cannot give any benefit to prosecution to attack the defence with adverse presumption or assumptions. The defence of accused can be pleaded and taken up by the accused whenever he feels appropriate and opportune moment available to do so. The learned AAG appearing for the State has supported the bail application for cancellation.

Careful consideration of the material placed before the court and after hearing the arguments of both the parties, I have come to the conclusion that the plea of alibi raised in the present case is not without force and there being no legal bar on the court to take such plea into consideration for the purpose of granting bail. In my view case has been made out for cancellation of bail granted by the Judge Jacobabad.

The trial has not yet commenced and the opponent is in Jail since 5‑5‑1986 when he is alleged to have been arrested.

The order of the learned Sessions Judge Jacobabad granting bail to the opponent /accused is neither arbitrary nor perverse and no ground is made out for cancellation. In this view of case Misc. Application No. 20/1987 is dismissed.

M.Y.H./B‑39/ K Petition dismissed.

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