GHULAM MURTAZA QURESHI vs THE STATE

ORDER

' Applicant Ghulam Murtaza Qureshi apprehending his arrest in Crime No, 120 of 1989, Police Station Ratodero, under section 302/34, P.P.C. And section 13-D of the Arms Ordinance, 1965, had approached this Court in Criminal Bail Application No, 809 of 1989, seeking protective bail. His prayer was allowed and protective bail was granted to him in the sum of Rs,50,000 with P.R. In the like amount for 10 days. During this period the applicant surrendered before learned Vth Additional Sessions Judge, Larkana, seeking pre-arrest bail. His application was, however, rejected vide order, dated 28-9-1989. The applicant has now approached this Court with the same prayer.

2. On 28-7-1989, at 1 a.m., complainant Ubedullah Qureshi lodged F.I.R. At Police Station Ratodero to the effect that the present applicant who happens to be his maternal-uncle had due to matrimonial dispute murdered his brother Abdullah at 12-15 a.m. With the help of three other unidentified persons, by causing fire-arm injuries. It is alleged that about 15 years ago applicant Ghulam Murtaza Qureshi asked for the hand of Mst. Hakim Zadi, a niece of complainant Ubedullah Qureshi for his son Bashir Ahmad Qureshi but he subsequently got his son Bashir Ahmad Qureshi married to some other girl and on account of this complainant Ubedullah Qureshi has arranged the marriage of Mst. Hakim Zadi with his nephew Mujeebur Rehman on 28-74989, when the present applicant is said to have come with three unidentified persons and committed the murder of Abdullah.

3. It is the case of the applicant that on the relevant day he was at Karachi and was staying in Hotel Zeeshan, Off Tariq Road, Karachi, till 29-7-1989. It is also the case of the applicant that on 27-7-1989 he had visited Central Prison, Karachi, where his son Bashir Ahmad Qureshi is confined as an under-trial prisoner. The applicant has produced a photo copy of the bill of Hotel Zeeshan showing his stay from 27-7-1989 to 29-7-1989 and a certificate issued by Superintendent, Central Prison, Karachi, to the effect that he had visited the said prison on 27-7-1989 and had left it at 5-30 p.m. As per entry in 'Gate Register' at Serial No, 302. Since the applicant had raised the plea of alibi it was considered necessary to summon Mr. Qamar Hussain Shah, Deputy Superintendent, Central Prison, Karachi, who appeared before the Court and testified as follows:-- "I am working as Deputy Superintendent, Central Prison, Karachi. I see certificate dated 5-10-1989 Annexure 'E' to the bail application. It was issued by me and bears my signatures. I have certified in Annexure 'E' that Mr. Ghulam Murtaza Qureshi visited Central Prison Karachi on 27-7-1989 to meet his son Bashir Ahmad Qureshi who is detained in Central Prison, Karachi as under-trial prisoner.

According to this certificate the said Mr. Ghulam Murtaza Qureshi left prison at 5-30 p.m. As per entry in the Gate Register appearing at Serial No, 302. I know Mr. Ghulam Murtaza Qureshi personally. I had issued this certificate as per the entry of the record and on the basis of my personal knowledge. Mr. Ghulam Murtaza Qureshi had met me on that day viz. 27-7-1989 at about 5-20 p.m. I can say on oath that the entry at Serial No,302 in the Gate Register is correct. Accused Ghulam Murtaza Qureshi present in Court is the same person for whom I had issued this certificate Annexure `E' and who had met me on 27-7-1989 at about 5-20 p.m.

' Cross to Mr. Nooruddin Sarki, Advocate for Accused. Nil. Cross to Mr. Shaukat H Zubedi, A.A.-G. -

4. I have heard Mr. Nooruddin Sarki, learned counsel for applicant and Mr. Shaukat H. Zubedi, learned AA.-G. For State. The latter has raised no objection to the grant of bail to applicant.

5. The case of Khalid Javed Gillan v. The State reported in PLD 1978 SC 256, is a leading judgment in a situation like under consideration, in which the plea of alibi, was considered and bail was allowed to accused. At page 263, the following observations were made:- "But for the purpose of the bail application, we cannot ignore the fact that a medical practitioner of high repute, who does not have any ostensible connection with the petitioner, supports the petitioner's case. How then did the High Court refuse bail? The learned Judge has very properly refrained from giving a detailed order, but from the tenor of his order, it would appear that he assumed that prosecution evidence was sacrosanct for the purpose of a bail application. With respect, this is not the correct view of the law, therefore, although this Court is always very reluctant to interfere in bail orders, a principle which we would reiterate, we are compelled to interfere in the instant case, because the impugned order is based on a misreading of section 497, Cr.P.C.

Accordingly, after hearing both the learned counsel, we converted the petition into an appeal, allowed it and ordered the release of the appellant pending his trial by the Sessions Court."

6. From the statement of Mr. Qamar Hussain Shah, Deputy Superintendent, Central Prison, Karachi, it is clear that applicant left Central Prison, Karachi, on 27-7-1989, at about 5-30 p.m. According to learned counsel for applicant to which the learnedhas also agreed, the distance between Karachi and Ratodero is in between 350 to 400 miles. The question before the, Court is whether the applicant could reach Ratodero during this period and commit murder on the same night at 12-15 a.m. Without going into the details the answer would be in negative, although the assessment is only tentative. The mere mention of the name of a person in the F.I.R. Would not justify the rejection of his prayer for anticipatory bail without a consideration of the other ingredients required to be taken into view in this context. The approach of the learned Additional Sessions Judge does not appear to be correct. The plea made by the applicant that he was somewhere else when the offence is alleged to have been committed which would make it impossible to believe that he could have done the act or committed the offence cannot be brushed aside mainly on the ground that his name finds place in the F.I.R.

7. The provisions for the grant of anticipatory bail are invoked mainly in order to relieve a person from being disgraced by trumped up charges. The object of section 498, Cr.P.C. Is to prevent innocent persons from being unnecessarily harassed by being arrested in connection with cases started by motivated persons. The certificate issued by Superintendent, Central Prison, Karachi, which is supported by Mr. Qamar Hussain Shah, Deputy Superintendent, Central Prison, Karachi, on oath, therefore, makes out a case for the grant of anticipatory bail to applicant. Accordingly bail is allowed to applicant in the sum of Rs,100,000 (Rupees one lac only) with P.R. In the like amount to the satisfaction of the Nazir of this Court. The applicant will, however, associate himself with the investigation of this case and he will appear before the Investigating Officer, as and when required.

However, if at any stage it is shown to the satisfaction of the trial Court that the certificate produced by the applicant in support of his plea of alibi was managed one, it will be open to it to cancel the to applicant.