ALAM KHAN and another vs STATE
This is a criminal petition seeking post-arrest bail in a case involving double murder and attempted murder arising from an ambush. The core legal question is whether the applicants are entitled to bail on the basis of a plea of alibi supported by passport entries, notwithstanding direct ocular testimony and the recovery of a crime weapon. The Sindh High Court dismissed the bail application, holding that the plea of alibi was raised belatedly without being presented during the investigation, and that the genuineness of the passport entries as well as the evaluation of conflicting evidence require deeper appreciation during a full-fledged trial. The key principle laid down is that where there is substantial ocular evidence implicating the accused and the authenticity of a belatedly raised plea of alibi is disputed, bail should be refused to allow the trial court to assess the entire material after recording evidence.
- Whether post-arrest bail can be granted on a plea of alibi not raised during the investigation stage?
- Does the presence of direct ocular evidence implicating the accused bar the grant of bail based on disputed passport entries?
- Whether the assessment of the genuineness of passport entries amounts to deeper appreciation of evidence prohibited at the bail stage?
ORDER
1. The facts of the case, as appeared from the record, are that Abdullah Khan, cousin of the applicants Alam Khan and Saifullah Khan was murdered and deceased Bahadur Khan, his son Habibullah Khan and others were facing trial for that offence. On 17.6.2003, Bahadur Khan and his son Habibullah with gunman Asal Khan were going to the Court in a car Complainant Aurangzeb, his sons Munsif Khan and Muhammad Khan together with Hafeezullah Khan were going with them in another car. On the way the car of Bahadur Khan and others was ambushed by six'assailants out of whom Alam Khan, Ahmed Khan alias Kako, Dilbar. Khan and Abdullah Khan had come in a car, whereas Hakim and Alam Khan came on a motorcycle. They opened indiscriminate firing at the car. In the result of firing Bahadur Khan, his son Habibullah and Guman Asal Khan were critically injured. The former two succumbed to the injuries, whereas Asal Khan survived.
2. Aurangzeb Khan lodged the FIR with Kalakot police. After investigation the accused including applicants Alam Khan and Saifullah Khan were challaned. The present applicants/accused were however, shown as absconders.' Saifullah Khan was arrested on 29.6.2003, whereas Alam Khan was nabbed on 9.7.2003.
3. The said two accused filed an application for bail on the sole ground of alibi pleading that on 16.6.2003, they had gone to Iran and had .returned from there on 18.6.2003. The learned trial Court dismissed their bail application mainly for the reason that plea of alibi was belated one. It had not been taken at the stage of investigation. Further that there is huge ocular evidence against the applicants beside recovery of crime weapon from Saifullah Khan.
4. Mr. Khawaja Naveed Ahmed, learned advocate for the applicants/accused has contended that the plea of alibi gets support from the entries of two check posts one of Pakistan and the other. of Iran in the passports of applicants, but the learned trial Court did not appreciate it simply saying that the plea had not been raised at the time of investigation. The learned advocate has stated that plea of alibi was not raised at the stage of investigation under a .well considered strategy as the defence wanted the prosecution to come out fully with false and exaggerated version.
5. Mr. Shahadat Awan, learned advocate for the Complainant and Mr. Habibur Rasheed, the learned State Counsel have opposed the bail plea saying that five eye-witnesses including one injured have implicated the applicants and the crime weapon recovered from applicant Saifullah Khan matched with the empty seized from the place of incident. Also the plea of alibi has been introduced at the belated stage. According to Mr. Shahadat Awan, the learned advocate for the complainant, the entries in the passports are forged and managed ones. That always entries of departure from, the territory of one country and arrival in the other country are kept but the passports of the applicants shown only the entries-of arrivals which are not genuine. He further contended that in presence of huge ocular evidence against the applicants the appreciation of alibi would amount deeper appreciation of the evidence which has to be avoided at bail stage, allowing the learned trial Court to appreciate the entire material after the same has come before it in the result of full-fledged trial. He referred to the decision of the Hon'ble Supreme Court reported in case of Abdul Ghaffar vs. The State (1996 PCRLJ 2002).
6. As mentioned above the five eye-witnesses including gunman Asal Khan injured have implicated the applicants directly. According to the prosecution crime weapon was also recovered from Saifullah Khan. It is also admitted position that the plea of alibi was not taken at the earlier stage.
7. The explanation of introducing it at belated stage and the truth thereof is yet to be appreciated during trial when both the parties get full opportunity to produce evidence in support of their respective contentions (SIC).
8. Also the genuiness of the entries which are only of the entry in the territories and not of the departure from there is yet to be established. For the present there is huge evidence against the applicants, therefore, they do not have a case for bail.