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Criminal Miscellaneous. No. 261/13 of 1987, heard on 13th June, 1987.

(a) Criminal Procedure Code (V of 1898)‑

‑‑5. 498‑‑Penal Code (XLV of 1860), S. 302‑‑Bail before arrest‑ Accused specially named in F.I.R. lodged without delay‑‑Mere oral plea of alibi which may not prove true at trial cannot be adduced as a ground for seeking anticipatory bail.

(b) Criminal Procedure Code (V of 1898)‑

‑‑‑5. 498‑‑Penal Code (XLV of 1860), S. 302‑‑Person, accused of murder, moving application for bail before Sessions Court but making no appearance before Court and after his application had been dismissed for non‑prosecution moving High Court for anticipatory bail‑ Application for bail rejected.

M. Ilyas Siddiqui for Petitioner. Malik Muhammad Aslam for A.A.‑G. for the State. Date of hearing: 13th June, 1987.

This petition under Sections 497 and 498 of the Criminal Procedure Code prays for grant of bail before arrest to the Petitioner Muhammad Azam who is an accused in a case registered against him and his brother Idrees with Police Station Gujar Khan under Sections 302/34 of the Pakistan Penal Code vide F.I.R. dated 19th of May, 1987.

2. The allegations as contained in the FIR are that the complainant Haji Muhammad Fazal along with his nephews Mudasar and Imran was returning home at about 1‑30 P. M. from their school when the accused Idrees and Azam sons of Abdul Majeed who were standing on the route raised a Lalkara that today they will avenge the act of the complainant in reporting against them for dealing with narcotics and drugs, whereupon the complainant with his nephews and his cousin Mahboob Elahi son of Abbas who had also met them on the way turned back but Idrees through his carbine fired a shot which did not hit the complainant but hit Imran Mahmood, his minor nephew aged 5/6 years on the left side of the back who was removed to the Hospital but succumbed to the injuries soon thereafter.

3. The learned counsel for the petitioner contended that although the petitioner is named in the FIR, the only role attributed to him is the proverbial lalkara and in the presence of the defence being shown that the petitioner was not present at or near the place of occurrence and was at Rawalpindi getting his car repaired proves that the involvement of the petitioner in the case is only on account of ulterior motive so that the accused in the case be not able to put an effective defence at the trial. The learned counsel in the same context submitted that sufficient evidence has been produced before the Investigating Officer to show that the petitioner was not present at the place of occurrence and that he was away from Gujar Khan since 10 a.m. on the day of occurrence.

4. The only other contention of the learned counsel for the petitioner was that the Investigating Officer has found during the investigation that the petitioner appears to be innocent.

5. On the contrary the learned counsel appearing for the State has raised the following contentions:‑‑

(1) That on 8‑6‑1987 the petitioner appeared before the learned Additional Sessions Judge, Rawalpindi in his application for bail before arrest made in that Court but presumably seeing that his application was being rejected slipped away and got his application dismissed for non‑prosecution. He submits that the petitioner has not come to this Court with clean hands and, therefore, he should not be allowed to avail of the remedy before this Court whilst he himself abandoned a similar remedy before the subordinate Court;

(2) That the Investigating Officer is present in person and has stated that he has not declared the petitioner innocent;

(3) That oral evidence being pressed into service to set up the plea of alibi even at the time of trial may not be of much weight and the same in any case cannot be adduced as a ground for seeking bail before arrest when the petitioner is named in the F.I.R. and there are eye‑witnesses of the occurrence;

(4) That the F.I.R. reveals that section 34, P.P.C. is squarely applicable and, therefore, whether or not any overt act is attributed to the petitioner will not be of much consequence as he is liable for the offence committed;

(5) That the petitioner is involved in a number of cases registered against him under the Prohibition Laws and does not deserve to be allowed bail before arrest especially when the motive behind the crime in question has also arisen out of those transactions which may fall under the Prohibition Order of 1979; and

(6) That in any case no case for bail before arrest is made out as neither any mala fides are attributed in the registration of the case against the petitioner nor any material brought on record to show that irreparable loss will be caused to him if the bail is not allowed.

6. I have given anxious consideration to the controversy involved and am of the view that the contentions raised on behalf of the petitioner are not such which may justify the allowing of bail before arrest to the petitioner as all those may only be available after a proper trial or at best on conclusion of the investigation and moreso in a case involving an offence punishable with death or transportation wherein the petitioner has been specifically named in the F.I.R. lodged without any delay.

It has also been correctly pointed out by the learned counsel for the State that oral evidence of alibi pressed into service by the petitioner at the initial stage of investigation in the presence of eye‑witnesses of the occurrence should not be made a basis for allowing bail before arrest to the petitioner.

7. It may also be observed that the plea raised by the petitioner that the Investigating Officer has found him innocent having been categorically refuted today, the grant of bail before arrest at this stage may amount to thwarting the proper investigation of the case which cannot be the intention of law governing the grant of bails/bails before arrest.

8. Yet another aspect of the matter which has prevailed with me to reject this petition for bail before arrest is the conduct of the petitioner in having his application for bail before arrest dismissed for non‑prosecution by the learned Additional Sessions Judge, Rawalpindi and then coming to this Court for the same relief without first having moved the same Court for the purpose by showing reasonable cause of his non‑appearance when the case was called out.

9. In view of the foregoing discussion I find no merit in this petition which is accordingly dismissed.

K. B. A./M‑281/L Application dismissed.

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