YAHYA AFRIDI, J.---Dr. Momin, petitioner, seeks his post arrest bail in case F.I.R. No.247 dated 3Q-3- 2013 for offences chargeable under Sections 302/324 of Pakistan Penal Code, 1860, ("P.P.C.") registered in Police Station Nowshera Kalan ("F.I.R.").
2. The case of the prosecution, as set up in the F.I.R., is that the report was lodged by the deceased then injured and expired after six days of occurrence, by directly charging the accused petitioner for effective firing upon him and that the report of the deceased then injured culminated in the "dying declaration".
3. Valuable arguments of learned counsel for the parties heard and available record thoroughly perused.
4. Lest this Court passes any findings, which may prejudice the case of the parties during trial, suffice it to state that 'prima facie', the petitioner alone has been directly charged by the deceased in his "dying declaration" for effective firing during daylight occurrence. Hence, at present, the petitioner, subject to proof by the Prosecution during the trial, is connected with the commission of the offence. Thus, at this stage, in the circumstances stated herein above, the case for 'post arrest' bail in favour of the present petitioner is not made out.
5. As far as the plea of "alibi" taken by the present petitioner for being arrested in another case vide F.I.R. Registered in Police Station Charsadda, the Investigating Officer has not positively accepted the said stance taken by the petitioner in its totality. Hence, any finding rendered by this Court at bail stage, would not be appropriate and would surely prejudice the case of the parties during trial.
This Court was informed that the challan in the present case is complete and the trial is to commence but is pending for the present proceedings.
6. In regard to the plea of alibi at bail stage, apex Court in the case of Said Akbar and another v.
Gul Akbar and another (1996 SCM R 931), while dealing with similar situation observed:-- "From what is stated above it is clear that case law is in favour of proposition that bail can be granted in a case of capital charge on the plea of alibi if peculiar facts and circumstances of that case so justified the findings in favour of grant of bail. In the instant case we do not feel inclined to grant bail for two reasons. Firstly that in this case two deceased persons have been done to death in the result of incessant firing in which two eye-witnesses including two injured eye-witnesses.
From those eye-witnesses one injured eye-witness is complainant himself and the remaining two witnesses are named in the F.I.R. Incident took place in broad-daylight on 7-30 a.m. On the road near Petrol Pump which is a public place. It is for the trial Court to believe either the eye-witnesses including two injured eye-witnesses or defence plea of alibi for which evidence is yet to be recorded by trial Court. Secondary we have been informed that case in the trial Court is ripe for recording of evidence and even date is fixed for that purpose. Since recording of evidence in the trial Court is about to commence, this Court normally does not interfere with the order of the High Court regarding bail. In support of proposition reference can be made to the cases of Muhammad Ismail v. Muhammad Rafique etc. (PLD 1989 SC 585) and Mian Dad v. The State etc. (1992 SCM R 1418). In both these cases interference was not made by this Court against grant of bail in the order to avoid observations with regard to appreciation of evidence.
In view of the dicta of the august Supreme Court in the case Said Akbar and another v. Gul Akbar and another (Supra), this Court would not pass any finding on the plea of "alibi" taken by the petitioner.
7. Before parting with the case, this Court finds it necessary to remind the trial Court that the observations rendered by the High Court while disposing of bail applications are not to be considered during the trial of the accused. In this regard the apex Court of Pakistan in Shuaib Mehmood Butt v. Iftekharul Haq (1996 SCMR 1854) has rendered clear guidance, which is to the effect that:-- "However we would like to point out in no certain terms that the observations made by the High Court in the orders granting bail and by us in this order are confined to tentative assessment made for the purpose of disposal of bail applications and not intended to influence the mind of the trial Court, which is free to appraise the evidence strictly according to its merits and the law of the time of disposal of the case, which of course it is needless to say, is the function of the trial Court."
8. Accordingly, for the reasons stated hereinabove, the present petition is dismissed. However, the trial Court is directed to expeditiously proceed with the trial of the present petitioner and ensure that the petitioner stated to be of an advanced age is provided all the medical and other facilities permissible under the law.