SAID AKBAR and another vs GUL AKBAR and another

SAJJAD ALI SHAH, C.J.---This appeal with the leave of the Court is directed against order dated 30- 3-1994 of Peshawar High Court, whereby bail application filed by appellants on the ground of plea of alibi is rejected.

2. As per F.I.R. Two appellants before us namely, Said Akbar, Ali Asghar and their absconding co- accused Ghulam Qadir were armed with fire-arms and fired. In the result whereof Awal Khan and Islamuddin, became injured and died. Further in the result of firing complainant Gul Akbar and Said Wali became injured. Incident took place on 21-7-1993 at 7-00 a.m. On road near Petrol Pump and Bana Mari, Police Station. Statement of complainant Gul Akbar was recorded in the hospital which was later incorporated in F.I.R. Which was registered at Police Station Bana Mari. Prosecution proposes to examine three eye-witnesses including two who are injured during the incident.

Appellants before us were arrested on 8-8-1993, which was 17 days after the incident.

3. It is submitted on behalf of the appellants that before InvestigatingOfficer plea was taken by them of alibi to the effect that on the day of incident they were in Charsadda Jail in connection with offence under section 13 of the Arms Ordinance and 188, P.P.C. They were arrested in those cases on 9-7-1993 and were released on bail on 25-7-1993, which was granted by S.D.M., Charsadda. In support of the plea of alibi, copies of FIRs 398 and 399 and certificate issued by Superintendent Jail, Charsadda have been produced and relied upon. It is also submitted that there is recorded enmity between the parties and appellants have been falsely implicated. It is also stated that initially after incident in the instant case, they were admitted to interim pre-arrest bail by Sessions Court which was later not confirmed and after that they were taken in custody on 8-8-1993. Material supplied by them in support of plea or alibi has been rejected by the trial Court and the High Court.

4. In support of bail plea reliance is placed by learned counsel for the appellants on Khalid Javed Gillan v. The State (PLD 1978 SC 256), in which it is held that for consideration of bail plea as contemplated under section 497, Cr.P.C. Tentative assessment can be made of material or evidence produced which is different from elaborate sifting of evidence which is to be done by the Trial Court at the proper stage. It is true that in such cases when bail is sought on the basis of a particular plea, the Court considering the bail plea has to make tentative assessment of evidence proposed to be produced by the prosecution and all material available on the record including material in support of defence plea, which is to be placed in juxtaposition with material in support of prosecution case to arrive at conclusion whether bail should be granted or not.

5. In the case of Shabbir Ahmed v. The State (1980 SCM R 920) bail was granted in a murder case on the ground that co-accused pleaded alibi and was supported by witnesses who were named in F.I.R. And Investigation Officer was satisfied and put that accused in column No.2 of the Challan and was released on bail during investigation. Further, Advocate-General conceded and did not oppose prayer of bail in this Court. In the case of Aminullah v. The State (PLD 1982 SC 429) bail was allowed on the plea of alibi for reasons inter alia that post-mortem was performed in the house of deceased in presence of the Investigating Officer and as per F.I.R shots were fired by appellants while standing in front of door of kitchen but eye-witnesses stated that they were fired from inside the kitchen and since it was case of patricide witnesses were hesitating to speak the truth. In such circumstances plea of alibi was considered in conjunction with shortcomings in the case of prosecution.

6. From what is stated above it is clear that case-law is in favour of proposition that bail can be granted in a case of capital charge on the plea of alibi if peculiar facts and circumstances of that case so justify the findings in favour of grant of bail. In the instant case we do not feel inclined to grant bail for two reasons. Firstly that in this case two deceased persons have been done to death in the result of incessant firing in which two eye-witnesses including two injured eye-witnesses.

From those eye-witnesses one injured eye witness is complainant himself and the remaining two witnesses are named in F.I.R. Incident took place in broad daylight on 7-30 a.m. On the road near Petrol Pump which is a public place. It is for the Trial Court to believe either the eyewitnesses including to injured eye-witnesses or defence plea of alibi for which evidence is yet to be recorded by the Trial Court. Secondly we have been informed that case in the Trial Court is ripe for recording of evidence and even date is fixed for that purpose. Since recording of evidence in the Trial Court is about to commence, this Court normally does not interfere with order of the High Court regarding bail. In support of proposition reference can be made to the cases of Muhammad Ismail v. Muhammad Rafique etc. (PLD 1989 SC 585) and Mianded v. The State etc. (1992 SCM R 1418). In both these cases interference was not made by this Court against grant of bail in order to avoid observations with regard to appreciation of evidence.

7. For the facts and reasons stated above we dismiss the appeal and direct the Trial Court to record evidence of both parties and conclude the proceedings within two months from the date of this order strictly according to law.