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Criminal Miscellaneous No. 1114/13 of 1987, decided on 3rd June, 1987.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302/307/148/149‑‑Bail, grant of ‑Court can make tentative assessment of material produced before it including plea of alibi at bail stage.‑‑[Evidence‑‑Alibi].

Iqbal‑ur‑Rehman v. The State P L D 1974 SC 83 and Khalid Javaid Gillani v. State P L D 1978 SC 256 ref.

‑‑‑S. 497(5)‑‑Penal Code (XLV of 1860), S.302/307/148/149‑‑Bail, cancellation of‑‑Case investigated by local police and Police Officer of the rank of D.S.F. and they both found accused to be innocent‑‑Widow and a son of deceased also satisfied themselves as to innocence of accused and confirmed this fact before Investigating Officer‑‑Cancellation of bail order passed by Sessions Judge declined, in circumstances.

Muhammad Ramzan's case 1986 S C M R 1380 ref.

Yusuf Ali Khan Bar‑at‑Law for Petitioner.

Ghulam Ghaus Cheema for Respondent No. 1.

Umar Mahmood Kasuri for Respondents Nos. 2 and 3.

Ch. Muhammad Ibrahim for Respondents Nos. 4 to 6.

Farrukh Hamayun for the State.

Ghulam Muhammad petitioner has moved this petition under section 497(5), Cr.P.C. for cancellation of bail allowed to the respondents by the learned Additional Sessions Judge, Sheikhupura, in a case registered against them and others under sections 148, 452, 302 and 307/149/109, P.P.C.

2. The prosecution version is that on 13‑11‑1986 at 5‑ 30 p.m. first informant Ghulam Muhammad was present in his house situate in Shehzad Kot. His family members and his guests namely Muhammad Hussain deceased and Mubarik P.W. were also there when all of a sudden respondents Nos. 2 to 6 namely Muhammad Iqbal, Sikandar, Safdar, Sufi Sarfraz and Muhammad Riaz and their co‑accused Bashir, Inayat, Charagh, Murad, Dogar alias Anwar. Hanif, Shoukat and Anwar armed with guns and 7 m.m. rifles and Nawaz alias Naju armed with Klashnikov trespassed into his house raising Lalkaras and started firing indiscriminately. Each of the aforesaid accused fired one shot each at Muhammad Hussain aforementioned causing injuries on his face, abdomen, right thigh and neck as a result of which he died at the spot. The first informant, his mother Mst. Muradan Bibi, his brother's wife Mst. Resham Bibi, Sardaran Bibi and Manzoor son of Sarwar also suffered injuries by the indiscriminate firing. After the occurrence the accused persons fled away from the spot firing in the air.

Enmity on account of previous murders was stated to be the motive for the offence. In the F.I.R. it was further alleged that Iqbal alias Bala accused wanted to take possession of the land of the deceased after committing his murder and that the murder was committed at the instance of Massan accused‑respondent No. 1.

3. The respondents were allowed pre‑arrest bail by the learned Additional Sessions Judge on the ground that they were found innocent during investigation by the local police as well as by the D.S.P. and had been placed in column No. 2 of the challan. It was further observed that the widow and son of the deceased had confirmed before the Investigating Officer that they had satisfied themselves about the innocence of the petitioners on the oath of Holy Qura'n and as such do not consider them having taken part in this occurrence.

4. The learned counsel for the petitioner has stoutly argued that the order of the learned Additional Sessions Judge granting pre‑arrest bail to the respondents is unsustainable being in violation of the established principles. Relying on Iqbal‑ur‑Rehman v. The State P L D 1974 SC 83 he submits that plea of alibi cannot be examined at the bail stage. It is further submitted that the mere fact that the widow and son of the deceased were satisfied about the innocence of the respondents could not constitute a valid ground for the grant of bail because the prosecution version is supported by injured eye‑witnesses. The learned counsel further states that in the bail applications made before the Sessions Court no mala fide had been alleged and in that view of the matter the respondents were not entitled to the extraordinary concession of pre‑arrest bail.

5. Learned counsel for the respondents, on the other hand, submits that the opinion of the S.H.O. and D.S.P. is based on sufficient material and Mst. Rasul Bibi, widow of the deceased and his only son, namely Iftikhar Ahmad have testified to the innocence of the respondents therefore, bail was rightly allowed.

6. I have considered the submissions made by the learned counsel for the parties in the light of material available on the record. The case was investigated by the local police as well as by an officer of the rank of D.S.P. and they have found the respondents to be innocent. Not only that, the widow and the son of the deceased, as is apparent from the impugned order, confirmed before the Investigating Officer that they have satisfied themselves about the innocence of the respondents. The Court can make tentative assessment of the material produced before it and can consider the plea of alibi even at bail stage. Khalid Javaid Gillani v. State P L D 1978 SC 256 may be referred in support of this view.

It is true that in the bail application moved by respondents 2 to 6 no mala fide was specifically alleged. The learned counsel for the respondents have, however, relied on Muhammad Ramzan's case 1986 S C M R 1380 to contend that where a case for bail is made out on merits, the bail should I not be cancelled on technical grounds.

In the circumstances, I do not feel inclined to interfere with the impugned order. This petition is, therefore, dismissed.

S.G.D./G‑57/L Petition dismissed.

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