WAQAR UL HAQ vs The STATE

ORDER

1. MUHAMMAD HALEEM, C.J.--The petitioner seeks leave to appeal against the order of the Lahore High Court, Mulian Bench, dated 16th of December, 1984, by which bail was refused to him.

2. According to the prosecution, it was the petitioner who had fired the fatal shots at Muhammad Saeed, a Matric student on 23rd of September 1984, at the behest of his accomplices Muhammad Rafiq and Muhammad Aijaz, who were empty-handed, but said to have uttered Lalkaras to finish him of. Muhammad Rafiq father of the victim and P.Ws. Abdul Khaliq and Muhammad Ashraf witnessed the incident. The motive imputed was that the complainant was instrumental in having the petitioner's grant of land cancelled.

3. On 26th of September 1984, the petitioner applied for pre-arrest bail and on the same day before a different Court Muhammad Rafiq voluntarily appeared and produced a revolver alongwith crime- empties stating that he had killed the deceased with this weapon. His statement was, accordingly, recorded and he was taken into custody. As the petitioner had failed to appear before the Court, his application was dismissed and he was ultimately arrested alongwith Muhammad Aijaz on 21st of October 1984.

4. During the investigation a case of alibi was sought to be raised and in support of this a number of persons filed their affidavits in support of this plea before the Investigating Officer.

5. The High Court while refusing bail observed that the plea of alibi apparently was sought to be made out during the period he had evaded his arrest and that the opinion of the Investigating Officer as to his innocence cannot influence the mind of the Court, the more so when it is not bona fide.

6. The learned counsel for the petitioner vehemently urged that as many as 96 notables had verified to the innocence of the petitioner. And not only this, the case was investigated as many as four times by independent officers and once also by an Assistant Superintendent of Police and all such investigations declared him to be innocent. It was further contended that the motive imputed was not established from the 4 order of the Board of Revenue as the name of the petitioner was not shown as one of the persons whose land grant was cancelled, and that there was a motive to falsely implicate the petitioner whose uncle had defeated the complainant in the Local Council's Election. Lastly, reliance was placed on the confession of Muhammad Rafiq who gave out his status as a servant of the petitioner while confessing his guilt.

7. We have examined the confession and are tentatively of the opinion that it is not a confession at all in view of its being exculpatory in nature in that he gives a justification for the killing of the deceased which ought it be said raises a plea of self-defence. As for the plea of alibi, it cannot be judged at this juncture in the face of the prima facie material to show that he had fired the shots. In this view of the matter, the opinions of the Investigating Officer as to his innocence are not of any value, nor can the enmity imputed against the complainant provide a ground for his release on bail. These are all matters, which are to be considered by the trial Court and it this context we are, unable to see any defect in the discretion exercised by the High Court. The proper course would be to repeat the prayer for bail after some evidence is recorded which shall be considered on its own merits. With this observation we dismiss the petition.