Said Badshah, petitioner seeks bail after arrest in case FIR No, 194 dated 12.08.2007 registered under Sections 302/324/34 PPC at Police Station Kundian, District Mianwah. The allegation against the petitioner is that he along with his co-accused while aimed with pistols committed murder of Wazir Rehman and Wah Rehman deceased persons and made murderous assault on Muhammad Zarif Khan.
2. Learned counsel for the petitioner, in support of this petition, contend that the petitioner is serving in the Pakistan Army as Naib Subedar and on the day of occurrence, he was participating in the operation known as Al-Meezan at Meeran Shall and this plea of the petitioner was duly verified during the course of investigation by the investigating agency and then this fact was verified by the DSP; earlier bail petition of the petitioner was not disposed of on merits but with a direction to the learned trial Court to conclude the trial of the case within a period of two months but so far even the charge has not been framed because the complainant has filed a private complaint and this fact is clear from the report submitted by the learned trial Court; that no recovery was effected from the petitioner during the course of investigation; that it is dark night occurrence; that the petitioner is behind the bars and no more required for the purpose of investigation; that in the circumstances, the case of the petitioner is that of further inquiry within the ambit of sub-section
(2) of Section 497 Cr.P.C. In support or his contentions, learned counsel for the petitioner relied upon the case of "Ch. Muhammad Shafi Vs. Ch. Muhammad Anwar Samma and another" (1975 SCM R 219) and 'Arshad Mehmood Vs. The State" (NLR 2007 Criminal 192).
3. Learned counsel for the complainant opposes this bail petition on the ground that the petitioner is nominated in the FIR with a specific role of causing fire-arm injury to Wali Rehman deceased, therefore, he is not entitled to the concession of bail.
4. Learned DPG, on instructions from the police officer and after perusing the record, states that vide case Diaries No, 38, 38-A and 39, the petitioner was found innocent on the basis of plea of alibi; that the Investigating Officer went to the place of posting of the petitioner and verified that on the day of occurrence, the petitioner was performing his duty at Meeran Shah and this investigation of the Sub-Inspector was also verified by the DSP and the case was recommended for the. discharge of the petitioner but the learned Maga Magistrate did not agree; that an inquiry was also conducted by the F.I.U. and the petitioner was found innocent.
5. I have heard the learned counsel for the parties.
6. Though the petitioner is nominated in the FIR with a specific role but his plea of alibi i,e, that on the day of occurrence, he was performing his duty at Meeran Shah in operation Al-Meezan stood verified by the Investigating Officer and even a discharge report was submitted which was not agreed to by the learned Magistrate. In the case of "Ch. Muhammad Shafi Vs. Ch. Muhammad Anwar Samma and another" (1975 SCM R 219), while dismissing the petition for cancellation of pre- arrest bail allowed to the respondent by the High Court, it was held at page 220 that: "We consider that the learned Judge in the High Court has rightly remarked that the case relied upon by the learned counsel for the petitioner does not spell out an absolute bar in the way of the High Court considering the effect of plea of alibi for the purpose of bail. We also find that the learned Judge has not given any decision regarding the veracity of the respondent's plea, but has merely remarked that it could not be lightly brushed aside. It will be seen that the alibi in this case conies from a large number of members of the Provincial Assembly, and accordingly it would require serious consideration at the proper time. In view of the affidavits filed on behalf of the respondent, the case would appeal to us to fall within the ambit of sub-section (2) of Section 497 of the Code of Criminal Procedure, namely, a case requiring further inquiry".
7. In the case of Arshad Mehmood Vs. The State" (NLR 2007 Criminal 192), it was observed at page 196 that:-- "6. It is true that normally the Courts are reluctant to consider plea of alibi at bail stage but it is not a principle or universal applicability and in appropriate cases where a strong plea of alibi has been put forward without any loss of time and the same has been found to be authentic, this Court as also the Hon'ble apex Court have been extending the concession of bail. In Khalid Javaid v: The State (PLD 1978 S.C. 256) and in the case of Malik Noor Muhammad and others v. The State. PLD 1993 Lahore 500 bail was allowed on the plea of alibi. In case of lqbal Ahmad and 2 others v. The State (1989 PCr.LJ 2122) bail was allowed to the petitioner who had taken the plea of alibi which was supported by documentary evidence as well as by the testimony of respectable persons examined by the police. In the case of Ajmal Khan v. Liaqat Hayat (PLD 1998 SC 97) the Hon'ble apex Court observed that bail could be granted in a case of capital charge on the plea of alibi if peculiar facts and circumstances of the case so justified".
8. The earlier bail petition of the petitioner was dismissed as having not been pressed on 22.12.2009 with a direction to the learned trial Court to conclude the trial within a period of two months but now the report has been submitted by the learned trial Court wherein, it is mentioned that since the complainant has filed a private complaint and as such no proceedings are being conducted in State case. The relevant portion of the report is as under: "It is submitted that direction for conclusion of the trial was issued in the State case but in view of filing of private complaint qua the same occurrence proceeding was conducted in the complaint case and due to that reason, the trial could not be concluded as per direction in the State case"
All these facts, if taken into consideration, make the case of the petitioner that of further inquiry within the ambit of sub-section (2) of Section 497 Cr.P.C. Moreover, there is no progress in the trial of state case and even the charge has not been framed so far, which means that the trial has not commenced, therefore, this petition is accepted and the petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs, 1,00,000/- (rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.
9. However, it is made clear that the above observations/ findings are tentative in nature and relevant only for the purpose of bail and shall not influence the learned trial Court during the trials.