ASSADULLAH KHAN CHAMMKANI, J.- Petitioners (1) Aizaz Ahmad and (2) Waqar, seek bail in case FIR No.59 dated 23.04.2014, registered under sections 302/324/148/149 PPC at Police Station Akbar Pura, District Nowshera.
2. Allegations against the petitioners are that on 23.04.2014 at 1850 hours, they along with their absconding co-accused Mukhtiaj, Shafiq and Mukhtiar, while duly armed with deadly weapons, forming an unlawful assembly for committing rioting and in prosecution of the common object of the unlawful assembly, committed the qatl-e-Amd, of Sadiq Amin and Ibn-e-Amin by firing at them effectively near the Hujra of one Babu Salam, who by then were riding a motorcycle. Motive behind the occurrence is stated to be a previous blood feud.
PWs Muhammad Nazir, Muhammad Abbas Khan and other people present there are stated to have witnessed the incident.
3. Arguments heard and record perused.
4. The only crucial point which was vehemently argued before me was the plea of alibi of the petitioners. According to learned counsel for the petitioners on the day, date and time of alleged incident, petitioner Waqar Ahmad being Constable of Elite Force was present on his duty while petitioner Aizaz Ahmad being student of B.Sc Forestry at Pakistan Forest Institute Peshawar, was in the hostel for preparation of "Forest Mathematics paper" to be held on the next date of occurrence i.e. 24.04.2014. We are confronted with the record, wherein the pleas of alibi of both the petitioners have been re-investigated by Special Investigation Team, constituted by Superintendent of Police (investigation Nowshera), on the written requests of the petitioners. No doubt, during inquiry the Special Investigation Team has recorded statements of some officials of the Elite force qua presence of petitioner Waqar Ahmad with them on 23.04.2014, but there is no mention in their statements to specifically depict that he was present on his duty on the day and relevant time of incident. Similar, is the case of petitioner Aizaz Ahmad, in whose favour Direct Forest Education Division has issued a letter certifying that he was present in the hostel in the evening of 23rd April 2014 for making preparation for the paper of Forest Mathematics, which was to be held on 24th April, 2014. Admittedly, he has furnished this certificate on the basis of statements of students and Program Officer. He is not warden of the hostel to know about each and every moment of presence of each student. Similarly, statements of the students recorded during investigation, do not show specifically the presence of petitioner Aizaz in his hostel at the time of occurrence. Report of the Special Investigation Teams reveals that no final opinion qua innocence or guilt of the petitioners has been given therein, rather the inquiry has been held pending till decision of the case by the court, which seems very strange because the prime object of the inquiry is always to take the same to its logical end. No doubt, opinion of the Investigation Agency is not binding upon the court, but the Special Investigation Team ought to have taken the inquiry to its logical end by furnishing its final opinion qua guilt or innocence of the petitioners in light of the statements recorded. This exercise on the part of the Special Investigation Team being not in consonance with law, is highly deplorable. The Investigating Officers, of the two consecutive investigations, have not declared any one of the petitioners as innocence nor have placed their names in column No.2 of the Challan nor have recommended their discharge from the charges. Had they found the petitioners innocent, they would placed their names in column No.2 of the challan or would have recommended their discharge. No doubt, plea of alibi, like any other defence plea, taken at bail stage, is essentially required to be examined by the court with a degree of care and caution. No inflexible rule can be laid down that plea of alibi cannot be considered at all, at bail stage, but the same, in every case is to be considered in the context of its own facts and circumstances. As regard plea of alibi in the instant case, as discussed earlier, the Special Investigation Team, has not taken the inquiry to its logical end, from which any concrete inference can be drawn one way or the other, therefore, in these eventualities, keeping in view the peculiar facts and circumstances of the instant case, now it would be the Trial court, who shall determine the veracity and credibility of plea of alibi, by thrashing the defence evidence. I condemn the illegal exercise adopted by Special Investigation Team by not furnishing any final opinion qua credibility, truthfulness or otherwise of plea of alibi of petitioners, which though was not binding upon the court, but was their utmost obligation under the law.
5. On tentative assessm ent of the material available on record, the version of the deceased then injured complainant is supported by eyewitnesses of the incident in their statements under section 161 Cr.P.C. In the incident two persons have been done to death with firearms. Recovery of blood from the places of the two deceased and crime empties from the places of the accused coupled with positive FSL report qua the bloodstained articles, supports the prosecution version. Any discussion on the argument of learned counsel for the petitioners about non-sending of the empties to the FSL, so as to determine the number of the accused, would amount to deeper apprecaition of evidence, which exercise is always deprecated by the apex court at bail stage. On tentative assessm ent of the record, reasonable grounds exist, which prima facie connect the petitioners with the commission of offence which entails capital punishment falling within the Restrictive Clause of Section 497 Cr.P.C.
6. For the foregoing reasons, I am not inclined to exercise the discretion of bail in favour of the petitioners. Resutlantly, this petition being without any substance stands dimissed. However, prosecution is directed to submit challan against the petitioners within a fortnight and the learned Trial Court, shall conclude the trial as early as possible, but not later than four months, on receipt of the challan. In case of failure to conclude the trial within the specified period, if delay was not on the part of the petitioners, they would be at liberty to file fresh bail petition, which would be decided independently. Office is directed to transmit the record to the quarter concerned within two days, positively.
7. Copy of this order be sent to the Additional Inspector General (Investigation), Khyber Pakhtunkhwa, Peshawar for consideration and curbing illegal practice adopted by the Special Investigation Team, in the instant case, in future.