' This single order will dispose of Criminal Miscellaneous No.1350-B of 2005 and Criminal Miscellaneous No.1176-B of 2005 being the outcome of same F.I.R., same occurrence and between the same parties.
2. Petitioners have sought their post-arrest bail in case F.I.R. No.401 of 2004 dated 16-12-2004 registered on the complaint of Muhammad Younas son of Rab Nawaz under sections 302/109/34 at Police Station Kot Chutta District, Dera Ghazi Khan.
' Briefly stated the facts as per prosecution story are that on 16-12-2004 at about 12-30 p.m.
Complainant along with his father Rab Nawaz was going to the house of Allah Bakhsh for the recovery of money, when they reached near the place of occurrence suddenly Hasnain, Sabir Hussain and Abdur Rehman armed with hatchets emerged, Abdul Rehman made Lalkara that Rab Nawaz should be taught lesson for having illicit relations with his sister Nizam Mai. Complainant's father namely Rab Nawaz rushed towards east for saving his life but all the three accused persons chased him and he was surrounded by the accused party. Hasnain gave two hatchet blows which hit on the head of Rab Nawaz. Sabir Hussain accused/petitioner gave hatchet blow which also hit on the head of Rab Nawaz whereas Abdul Rehman gave hatchet blow which hit on the left wrist of Rab Nawaz. On complainant's hue and cry, P.Ws. Attracted to the place of occurrence and they had witnessed the occurrence. On their arrival the accused party fled away from the place of occurrence after giving threats of dire consequences. Rab Nawaz father of the complainant died at the spot while succumbing the injuries. The motive behind the occurrence was that the accused party had suspicion of complainant's illicit relations with Mst. Nizam Mai.
4. Learned counsel for the petitioner contends that petitioners Sabir Hussain and Abdul Rehrnan were declared innocent having not found present at the spot at the time of occurrence by the police in all the three investigations. Initially the investigation was conducted by Bakhat Ali Sub- Inspector who declared both the petitioners innocent. The same conclusion was drawn by Abdul Sattar Pattafi, Sub-Inspector during the second investigation. Discharge report was prepared by S.H.O. But the same was not agreed to by the learned Ilaqa- Magistrate. That final investigation was conducted by Ahmad Nawaz Inspector of Investigation Cell D.P.O. Dera Ghazi Khan, who also after accepting the plea of alibi declared the petitioners as innocent. That though the finding of police is not binding on the Court but the same cannot be ignored. That in presence of discharge report though not agreed the case of petitioner would fall within the ambit of section 497(2), Cr.P.C. That the petitioners are innocent in the case and nothing was recovered from them. The injuries attributed to Abdul Rehman petitioner are on the non-vital part of person of Rab Nawaz deceased.
He has relied upon "Moinud-Din v. The State" (2004 M LD 52), "Iqbal ur Rehman v. The State" (PLD 1974 SC 83), "Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another" (1975 SCM R 219).
5. On the other hand learned counsel appearing on behalf of the State assisted by learned counsel appearing on behalf of the complainant has vehemently contested the bail petitions and submitted that challan in the case has been submitted in the Court of competent jurisdiction on 21-4-2005. That this was a day light occurrence. That the accused/petitioners have been nominated in the promptly lodged F.I.R. And specific role has been attributed to each of the accused/petitioners. Further submitted that it is established principle of law laid down by the Hon'ble Supreme Court that the opinion of police is ipsi dixit not binding upon the Court. That non- effecting the recoveries from the accused/ petitioners does not affect the case of prosecution when oral evidence and the direct evidence is fully supporting it. That case against the petitioners falls within the prohibitory clause. Reliance has been placed on "Alam Khan and Saif Ullah Khan v.
The State" (NLR 2004 Criminal 514), "Zar Gulab and 6 others v. The State and others" (2003 PCr.LJ 1404) and "Ameer Khan v. The State" (2002 PCt.LJ 886).
6. I have heard learned counsel for the parties and carefully perused the record. Petitioners namely Sabir Hussain and Abdul Rehman after being arrested were declared innocent as they were found not present at the spot at the time of occurrence by the police in all the three investigations.
Initially the investigation was conducted by Bakhat Ali Sub-Inspector who declared the petitioners innocent. The same conclusion was drawn by Abdul Sattar Pattafi, Sub-Inspector during the second investigation. Discharge report was prepared by S.H.O. But the same was disagreed by the learned Ilaqa Magistrate and the petitioners/accused were sent to judicial lock-up. Final investigation was conducted by Ahmad Nawaz Inspector of Investigation Cell D.P.O. Dera Ghazi Khan, who also after accepting the plea of alibi declared the petitioners Sabir Hussain and Abdul Rehman innocent. Although the finding of police is not binding on the Court but the same cannot be ignored.
7. It has been held in "Alam Khan and Saif Ullah Khan v. The State" (NLR 2004 Criminal 514) relied upon by learned counsel for the complainant that plea of alibi raised at belated stage would be no ground for bail but in this case the plea of alibi was taken by the accused persons from the date of their arrest and findings of Investigating Officers also show that petitioners/accused were not present at the spot at the time of occurrence. Facts of case-law "Ameer Khan v. The State" (2002 PCr.LJ 886) are also different from the facts of case in hand. It has been held in "Ch. Muhammad Shan v. Ch. Muhammad Anwar Samma and another" (1975 SCM R 219) that consideration of effect of plea of alibi for purposes of bail is permissible, the decision reported as "Iqbal ur Rehman v. The State (PLD 1974 SC 83) does not spell out an absolute bar in the matter. Plea of alibi raised in bail matter may not be out-rightly rejected and can be gone into for the purpose of grant or refusal of bail. 'Reliance can be faced upon "Malik Muhammad Saleeheen and others v. Arshad Siddiq and others" (1997 SCM R 1829).
8. For what has been discussed above the petitioners are allowed bail in the sum of Rs.2,00,000 (rupees two lac) each with two sureties, each in the like amount to the satisfaction of learned trial Court.