MUHAMMAD IQBAL Versus STATE
ORDER
Pursuant to a report lodged by one Muhammad Mansha, a real brother of Muhammad Riaz deceased, a case was registered vide First Information Report No. 140/94 on the 20th of April, 1994 under section 302/34 read with section 109, P.P.C. at Police Station Kassoki, Tehsil and District Hafizabad, regarding an occurrence which took place on the 18th of April, 1994 at about 6‑30 p.m. in the area of village Dhuni which is about seven miles from Police Station Kassoki, Tehsil and District Hafizabad. As a result thereof. Muhammad Iqbal petitioner was arrested on the 28th of May, 1994 and is in jail ever since.
2. According to the prosecution, complainant Muhammad Mansha alongwith his brother Muhammad Riaz deceased and their two other brothers, namely, Abdul Latif and Muhammad Ashraf were all present at their cattle shed in village Dhuni when the co‑accused of Muhammad Iqbal petitioner, namely, Muhammad Hanif, Muhammad Ameer and Nazir came there to meet Muhammad Riaz deceased as they were on friendly terms. Muhammad Riaz deceased accompanied co‑accused Muhammad Hanif, Muhammad Ameer and Nazir at about 6‑30 p.m. on the 18th of April, 1994 and thereafter did not return. Complainant Muhammad Mansha ‑and the other members of the family made enquiries about the whereabouts of Muhammad Riaz deceased but without any result. Two days later on the 20th of April, 1994, on enquiry and in the presence of Abdul Latif, Muhammad Ashraf and Rehmat Ali, co‑accused Muhammad Hanif alongwith the other two co‑accused of the petitioner are said to have made a joint confession to the effect that they had murdered Muhammad Riaz deceased due to the illicit liaison between Muhammad Riaz deceased and one Mst. Zohra and that the body of Muhammad Riaz deceased had been disposed of in the field of one Jafar. It is stated that as a result of this information the dead body of Muhammad Riaz was recovered from the field of Jafar. However, Jafar has not been cited as a witness by the prosecuting agencies.
3. Bail after arrest was sought by Muhammad Iqbal petitioner on the grounds inter alia that the first information report had been lodged after a delay of two days for which there was no plausible explanation, that there was no evidence, direct or indirect against the petitioner, that even the allegation of being last seen in the company of the accused persons was only against the co‑accused of the petitioner and that the petitioner who is a defence personnel had a documentary alibi that on the relevant date and time he was not present in the village but was on duty in Kamonki where he was posted on guard duty and that Kamonki is at considerable distance from the place of occurrence. The learned Sessions Judge of Hafizabad did not consider these submission and was pleased to dismiss the petitioner's application for the grant of bail through a short and cryptic order, dated the 29th of September, 1994 which reads as follows:‑‑‑
"The present petitioner is allegedly involved in a case of murder of one Muhammad Riaz alias Safdar. After having heard the learned counsel for the petitioner the learned DA. for the State, in view of the presence of statements of Muhammad Boota and Shafi involving the petitioner recorded during the course of investigation, and investigation is in progress. No ground for bail at this stage is made out, hence dismissed."
Hence this petition for bail after arrest.
4. Learned counsel for the petitioner contends that only allegation against the petitioner is of abetment and that no overt act has been attributed to him. It is further submitted that the petitioner, who is a defence personnel has a perfect alibi established by documents. Learned counsel submits that a plea of alibi can be considered by the High Court even at the stage of bail and this Court does not have to wait for the trial Court to do so and places reliance upon the case of Khalid Javed Gillan v. The State reported in PLD 1978 SC 256.
5. Admittedly the first information report was lodged after two days but the complainant has given the reason for the delay by stating that the complainant and also some other family members were making enquiries about the whereabouts of Muhammad Riaz deceased. Be that as it may, it will be for the trial Court to examine this aspect of the case and draw its own conclusion.
6. For the time being, there seems to be no direct evidence available tending to connect Muhammad Iqbal petitioner with the commission of the alleged offence. On the prosecution's own showing Muhammad Riaz deceased did not accompany Muhammad Iqbal petitioner on the fateful day.
7. The extra judicial confession said to have been jointly made in the presence of Abdul Latif and Muhammad Ashraf, brothers of Muhammad Riaz deceased and also Rehmat Ali a cousin of Muhammad Riaz deceased will have to be assessed by the trial Court and it will be for the trial Court to see the evidentiary value of such joint extra‑judicial confession. I am restraining from giving any opinion regarding the said extra‑judicial confession said to have been made jointly, lest it prejudices the case of the prosecution.
8. Learned counsel appearing on behalf of the State informs me that although the challan has been completed and submitted in Court since the 14th of June, 1094 but the trial has not commenced.
9. The question which arises is that should the High Court await the result of the trial and stay its hands or should this Court make a tentative evaluation of the material collected by the prosecution and all other attending circumstances of a case in order to form a tentative opinion for the limited purpose of exercising discretion in a fair and equitable manner regarding the grant or refusal of bail. The answer is obvious. A judicial responsibility cannot be abandoned simply on the ground that the trial Court will do the needful. The grant or refusal of bail involves the liberty of citizens and must be attended to without delay. The touch‑stone for the exercise of discretion has been given in the law itself. Section 497, Cr.P.C. provides that:‑‑‑
"(1) When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of (an offence punishable with death or imprisonment for life or imprisonment for ten years):
Provided that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of " such an offence be released on bail:
Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released.
(2) If it appears to such officer or Court any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed (a non‑bailable offence), but that there are sufficient grounds for further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under subsection (1) or subsection (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a non‑bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.
10. In order to hold, albeit tentatively, that reasonable grounds exist or do not exist, an examination of all the material collected by the prosecuting agencies and presented before the Court has to be conducted because reasonable grounds is an expression which is of a higher import than mere allegations. Therefore, the case of the prosecution alongwith all other relevant attending circumstances must be seen in juxtaposition with the case of the defence even at the stage of exercising discretion judiciously in the matter of grant or refusal of bail. If an accused is pleading alibi from the very out‑set, there is no reason why this Court should not examine the plea and failure or refusal to do so would tantamount to refusal to exercise jurisdiction.
11. Learned counsel appearing on behalf of complainant Muhammad Mansha contends that the plea of alibi taken by the accused/petitioner should not be examined by this Court because in his opinion that would amount to pre-empting the trial Court from forming its own independent view. In support of his argument, learned counsel for the complainant places reliance upon case of Iqbal-ur-Rahman v. The State reported in PLD 1974 Supreme Court 83 wherein their Lordships were pleased to hold that:--
"In these circumstances it would need an elaborate sifting of the evidence to come to the conclusion that the prosecution allegations were not true and stood negatived by the evidence of alibi produced by or on behalf of Iltafur Rehman at a late stage during the investigation of the case. It is well‑settled that such a sifting is not to be undertaken for the purpose of grant of bail as that is likely to pre‑empt the duties and functions of the trial Court, and to prejudice the prosecution or the defence."
12. Learned Counsel for the complainant seems to forget that the circumstances referred to by their Lordships of the Supreme Court in the case of Iqbalur Rehman were that the first information report was lodged by Muhammad Khalid deceased himself and was, therefore, treated as his dying declaration and that in the said statement made by a dying man it was asserted that the accused was armed with a gun with which he fired and hit the deceased and that this statement was supported by eye‑witnesses. It was in these circumstances that their Lordships felt that an elaborate sifting of the evidence was required and were, therefore, of the view that the learned Judge in the High Court was in error in recording a finding at this stage as to the credibility of the evidence of alibi.
13. An elaborate sifting of the evidence mentioned by their Lordships of the Supreme Court is entirely different from a tentative evaluation and appreciation of the material collected by the prosecution and presented before this Court for purposes of assessing whether reasonable grounds exist or not. The view taken by their Lordships of the Supreme Court in the case of Khalid Javaid Gillan v. The State reported in PLD 1978 SC page 256 and wherein their Lordships were pleased to examine the earlier case of Iqbalur Rehman reported in PLD 1974 SC 83 is that "An elaborate sifting of evidence is altogether different thing from the tentative sifting of evidence which the Court is compelled to resort to in a bail application. However, as a Court cannot in bail applications, resort to an elaborate sifting of evidence, it has to go by its assessment of the common course of natural events, human conduct and public and private business in their relation to the facts .of the particular case".
14. There may be cases of an extreme and yet obvious nature, where for example, a person who has been mentioned as an accused in a first information report pleads that on the said date and time when the occurrence allegedly took place, he was not in the country and was in a foreign land and produces documentary evidence to that effect by producing his passport and other travel documents. I do not see any reason much less justification for this Court to close its eyes altogether and thus abandon its jurisdiction simply on the ground that the trial Court will undertake this exercise.
15. Be that as it may, in the present case, apart from the plea of alibi, from the material collected by the prosecution and placed before the Court and all other attending circumstances it cannot reasonably be held that there appear reasonable grounds to believe that the petitioner is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years.
16. When the Court feels that such reasonable grounds do not seem to appear, then further guidelines are provided by the law itself because subsection (2) of section 497, Cr.P.C. provides that:‑‑‑
"If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed (a non‑bailable offence), but that there are sufficient grounds for the further inquiry, into his guilt, the accused shall, pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided."
17. Resultantly, the petitioner is granted bail provided he furnishes bail bond in the sum of Rs. 50,000 with two sureties in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Hafizabad.
N.H.Q./M‑1972/L ?????????????????????????????????????????????????????????????????????????????????????????? Bail granted.