' ATTAULLAH KHAN J.---Having failed to obtain the concession of bail from the Courts below, Akhtar Ali Khan, accused/petitioner, has now sought the indulgence of this Court to release on bail in case F.I.R. No,65 dated 1-4-2010 under sections 302/324/148/149, P.P.C. Of police station Domel, District Bannu.
2. According to the first report lodged by Abbas Ali Khan complainant on 1-4-2010 at 1630 hours, on the eventual day and time he along with his sons Shuaib Khan. Sikander Khan, Atta-ul-Hassan and Amin along with his nephew named Saifullah son of Awal Mir were busy in constructing boundary wall over the roof, when in the meanwhile Azizullah Khan armed with repeater, Akhtar Ali. Abdul Qayum, Kalu, Baitullah, Haneefullah, armed with Kalashnikovs, came and asked them not to put bricks there over which some hot words took place and simultaneously all of them fired at the complainant party with which Sikander Khan and Shuaib Khan were injured, fell down to the ground and succumbed to the injures after some time. Motive for the offence was given to be land dispute between the parties.
3. Learned counsel for the petitioner argued with great vehemence that the plea of alibi of the petitioner backed by documentary evidence has wrongly been ignored by both the Courts below, that the net has been thrown wide by implicating all the male members of the same family in the offence, that in view of the opinion of the Investigating Officer, the case was of further inquiry and lastly, that the prosecution case is not supported by medical evidence and site plan. According to him, all these facts when taken together, prima facie, brings the case within the ambit of further inquiry entitling the accused/petitioner to the concession of bail.
4. On the other hand, learned counsel for complainant and State opposed the above submission of the learned counsel for the petitioner on the grounds, inter alia, that it relates to the merits of the case which cannot be gone into at this hail stage; that the alleged plea of bail about the presence of the accused/petitioner in Karachi at the relevant time being of weakest type will be adjudged at trial after recording pro and contra evidence and that the accused/petitioner is directly nominated along with others for brutally killing two innocent young persons in a broad-day-light and the prosecution version is duly supported by medical evidence and ocular account.
5. I have carefully examined the record and anxiously considered the valuable arguments of the learned counsel for the parties.
6. Admittedly, the accused/petitioner along with other co-accused is directly charged by the complainant for effectively firing at the complainant party with which the two deceased were hit and died on the spot. The charge is duly supported by medical evidence and ocular account. The offence falls within the prohibitory clause of section 497, Cr.P.C. And the alleged plea of alibi about the non-availability of the accused/petitioner at the spot at the relevant time will be thrashed out by the trial Court after recording complete evidence.
7. The plea of alibi if allowed, it would open a Pandora box and every accused charged in heinous offence would raise this ground after collecting several persons in support thereof, because such an exercise is not difficult to undertake by him or them. Such plea is always thrashed out and examined at the trial stage. If it is allowed, it amounts to give a clear chit before trial, which is not viewed with appreciation by the Superior Courts. Similar is the case of opinion of Investigating Officer. The opinion loses its importance when other evidence and circumstances are available.
Opinion of Investigating Officer is again a factor to be examined at relevant stage of trial.
8. At the moment, the tentative assessment of the materials so far brought on record reasonably connects the accused/petitioner with the commission of the offence due to which he is not entitled to the concession of bail.
9. Consequently, I find no substance in this bail application which is accordingly dismissed.