' MUHAMMAD ALAM KHAN, J.--- This is an application for bail moved by the petitioner Muhammad Jabbar son of Gulzar Ali in case F.I.R. No,236, dated 2-11-2006 under section 302/34, P.P.C. Of Police Station Basya Khel, Tehsil and District Bannu. His efforts to get the concession of bail from the learned lower fora have been proved abortive vide orders, dated 11-7-2008 and 17-9-2008 respectively.
2. According to the F.I.R. Lodged by Shah Daraz Khan complainant in the emergency room of Civil Hospital, Bannu, on the fateful day at morning time he was standing in front of his Baithock and his son named Akbar Nawaz Khan came out of the house while his other son named Wahidullah was in the door of the house when at 6-45 p.m. Muhammad Israr and Muhammad Jabbar sons of Gul Zar Ali Khan armed with kalashnikovs riding on motorcycle came and on deboarding therefrom fired at Akbar Nawaz Khan with which he was hit and fell to the ground whereafter they decamped from the spot on the said motorcycle. Being empty-handed, the complainant and his son Wahidullah could do nothing. The injured soon thereafter succumbed to the injuries. Motive for the offence was stated to be hot words three months prior to the occurrence over the construction of road towards their village.
3. It was argued by Messrs Sanaullah Khan Gandapur and Pir Liaqat Ali Shah, counsel for the accused/petitioner that the petitioner is innocent being falsely roped in the offence. They argued that the petitioner was serving as Forest Guard but on the day of occurrence he was on leave as he was attending his ailing father at Peshawar. They submitted that the said plea of alibi was duly verified through the statements of independent witnesses and during investigation of the case, the petitioner was found innocent and in consequence thereof he was released by the local police under section 169, Cr.P.C. But subsequently the said order of his release was recalled by this Court in the quashment Petition No,1 of 2006 title Shah Daraz Khan v. Muhammad Jabbar and others decided on 15-2-2008 mainly on the ground that the Investigating Officer had exceeded his powers under section 169, Cr.P.C. However, it was ordered that the said order shall not intervene in any manner if the petitioner applies for bail under section 497, Cr.P.C. Which shall be decided on merits in accordance with law. It was submitted that the petitioner being innocent deserved the concession of bail on the plea of verified plea of alibi. They argued that the innocence of the accused/ petitioner is further proved from the statement of an independent witness named Muhammad Raheem alias Raheema recorded under section 161, Cr.P.C. Before the Investigating Officer on 19-1-2006 and section 164, Cr.P.C. Dated 21-11-2006 by the Judicial Magistrate. It was submitted that this independent witness has given an altogether different version of the occurrence and thus there are two versions of the incident due to which the case of the petitioner comes within the ambit of further inquiry. According to them, the delay in recording statement of this witness will not diminish the evidentiary value of his statement. They thus, termed the case of the accused/petitioner to be of further inquiry entitling him to the concession of bail. In support of their contentions, reliance was placed on Muhammad Mumtaz and 3 others v. The State 1988 SCMR 1452, Malik Muhammad Saleem and others v. Arshad Siddiq and 2 others 1997 SCMR 1829, Muhammad Shafique and another v. The State PLD 1990 Pesh. 118 and Qaiser Mehmood v.
Muhammad Aslam and others 2004 PCr.LJ 1135.
4. On the other hand, Mr. Gohar Zaman Kundi, advocate appearing on behalf of the complainant and Mr. Farooq Akhtar Khan, Advocate representing the State vehemently opposed the grant of bail to the petitioner on the grounds, inter alia, that the accused/petitioner is directly charged by the complainant in his promptly lodged report of a daylight occurrence for brutally committing the murder of his son. The accusation is duly supported by the medical evidence and the offence carries the capital punishment. The alleged plea of alibi is concocted and fabricated which carries no weight in the eye of law. They submitted that the statement of the so-called independent witness Raheem is an afterthought recorded after about nineteen days of the occurrence and thus, it cannot be made a basis for releasing the petitioner on bail. It was also submitted that earlier too, the petitioner had submitted an application for his release on bail on the ground of mental ailment which was dismissed by the learned Judicial Magistrate on 11-7-2008 and thus, the petitioner is debarred to move another application because no fresh ground had cropped in and thus, he is not entitled to the concession of bail. He urged that the alleged plea of alibi would be threshed out at the time of trial of the accused/petitioner. Reliance in this respect was placed on the cases of Waqar-ul-Haq v. The State 1985 SCMR 974 and Bahadur v. Muhammad Latif and others 1987 SCMR 788.
5. I have gone through the entire record of the case and considered the valuable arguments of the learned counsel for the parties.
6. Perusal of the record reveals that the case of the petitioner falls within the ambit of further inquiry entitling him to the concession of bail. The petitioner had from the very initial stage taken the plea of alibi which was thoroughly investigated by the Investigating Officer who had found him innocent and thus, released him under section 169, Cr.P.C. Though such release of the petitioner was subsequently set aside by this Court in the quashment petition but he was not debarred form moving a fresh application under section 497, Cr.P.C. The statements of Muhammad Raheem alias Raheema recorded under sections 161 and 164, Cr.P.C. Available at page 36 of the record brings the case of the petitioner within the purview of further inquiry. Furthermore, the plea of alibi raised by the accused and duly investigated by the Investigating Agency cannot be brushed aside outrightly, while considering the prayer of bail of the petitioner. Besides, placing the petitioner in Column No,2 of the challan is another circumstance which can be taken into consideration for release of the accused on bail. This is also a cardinal principle of law that even a lightest doubt, if exists in prosecution story, the benefit of the same will got in favour of the petitioner.
6-A. In view of the above, while placing reliance on the dictum handed down in the cases reported as Malik Muhammad Saleheen and others v. Arshad Siddique and 2 others 1997 SCMR 1829, Tariq Bashir and 5 others v. The State PLD 1995 SC 34, Muhammad Shabbir v. The State 1997 PCr.LJ 1570 and Muhammad Shafiq and another v. The State PLD 1990 Pesh. 118, I allow this application and admit the petitioner to bail provided he furnishes bail bond in the sum of Rs,three lacs with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
7. Above are the reasons for my short order of even date. The observations made in this order are tentative in nature and shall not prejudice the mind of the trial Court at the time of trial the case which shall decide the case on merits and strictly in accordance with law. Prosecution is, however, directed to submit complete challan in Court for trial as expeditiously as possible.