1. ' SARDAR SAID MUHAMMAD KHAN, .1."----The above-entitled appeals have been directed against the order of the Shariat Court dated 21-6-1984, whereby the respondents Nos. 1 and 2 were released on bail in a case registered against them under sections 4/5, 14/15 of the Islamic Penal Laws Enforcement Act, 1974, read with sections 307/147, and 148/149, A. P. C. As both the above-entitled appeals, one filed by the State and the other by the complainant, are directed against the same judgment, so these are hereby disposed of by this single order.
2. ' The brief facts of the case, as alleged by the prosecution, are that on 9-4-1984 at about 10-55 a.m.
3. Complainant, Muhammad Bashir, along-with Muhammad Hanif (deceased), Muhammad Akram, Muhammad Mahroof and Sajawal Khan were on their way to Mirpur City in two cars ; one of these cars by which Muhammad Akram was travelling, was being driven by Muhammad Hanif, while the other was occupied by the complainant and his other companions mentioned above. When the said cars reached a lonely place at the roadside, complainant and his companions saw a Suzuki parked on the roadside and the accused persons, 13 in number, including Muhammad Zaman and Mangti, respondents, who were all armed with rifle- and were hiding themselves in the bushes came out of their hideout; Muhammad Zaman and Mangti, respondents, shouted `Lalkara' that nobody should escape alive. On this, all the accused including the respondents resorted to firing which resulted in the instantaneous death of Muhammad Hanif, while two other members of the complainant party, namely, Muhammad Akram and Sajawal also sustained firearm injuries. The motive for the attack was stated to be the old enmity between the rival factions due to civil litigation between them and also as a result of a dispute relating to some electricity connection. It has been alleged in the F. I. R. That prior to the occurrence some quarrels had also taken place between the parties.
4. ' The respondents sought bail in the District Criminal Court, inter alia, on the ground of the plea of 'alibi' which was supported by affidavits sworn by three senior Advocates, namely, Raja Muhammad Siddique, Mr. B. A. Sheikh, Ch. Ali Muhammad and Muhammad Sarwar, a clerk of the District Criminal Court. According to the aforesaid affidavits, the respondents were present in the District Courts premises on the fateful day of occurrence at least from 9-00 a.m. To 9-30 a.m. The Shariat Court concluded on the tentative assessment of the contents of the aforesaid affidavits that the respondents were seen in the Court premises at least 10 to 15 minutes prior to the occurrence and thus there was reasonable possibility that they might not be present at the place of occurrence which is approximately at a distance of 2i miles from the Court premises. One of the deponents, namely, Muhammad Sarwar, has deposed in his affidavit that the news about the occurrence was heard by him after about 5 to 7 minutes when he had last seen the respondents in the Court premises. The case of the respondents, which was also supported by the affidavits, is that they had come to the District Courts on the day of occurrence in connection with the Election Petition, which was filed by them and was fixed for hearing on that date, but as the Presiding Officer of the Election Tribunal happened to be out of Station, the case was adjourned.
5. ' The plea of 'alibi', supported by affidavits did not weigh with the District Criminal Court and the bail was refused to the respondents. Consequently, the respondents sought bail in the Shariat Court, which on the tentative assessm ent of the contents of the affidavits in support of the plea of 'alibi' expressed the view that there was a reasonable possibility that the plea of 'alibi' might be genuine and thus the case being one of further enquiry within the meaning of section 497, Cr. P. C., the respondents were entitled to bail.
6. ' Lengthy arguments were addressed at the bar and Various authorities were cited by the learned counsel for the parties in support of their respective contentions. However, a perusal of said authorities has revealed that some of them have no relevancy either to file facts of the case in hand or the legal points raised by the learned counsel for the parties, therefore, we do not propose to deal with such authorities in this judgment. It may also be observed here that observations made in one criminal case are hardly an authority for another case because such observations are product of peculiar circumstances of the case in which the same are made. At the most, such observations are relevant only for enunciating the general principle of law on a relevant point.
7. ' It has been argued by Mr. Muhammad Abdul Khaliq Ansari, the learned counsel for the appellant, that the plea of 'alibi' cannot be considered at the bail stage and it is the function of the trial Court to give verdict on any such plea, otherwise, it would amount to pre-empt the function of the trial Court. The learned counsel has maintained that while considering the bail matter at the initial stage, pleas like 'alibi', self-defence etc. Should not be taken into consideration and only the material placed on the record by the prosecution is to be tentatively assessed so as to reach a conclusion as to whether there appear reasonable grounds to believe that the accused is guilty of an offence punishable with death or transportation for life. In support of his contention he has cited following authorities : "(1) Muhammad Shafique v. The State NLR 1978 Criminal 298.
(2) Haji Qamar Ali v. The State NLR 1978 Criminal 712.
(3) Mitho v. The State NLR 1978 Criminal 715.
(4) Ghulam Nabi v. The State 1968 P Cr. L J 186.
(5) Qamar Din v. The State 1975 P Cr. L J 133.
(6) Khadim Hussain v. The State PLD 1981 SC (A J & K) 77.
(7) Ibrar Ali v. The State NLR 1980 Criminal (Lah.) 74.
(8) Muhammad Hussain v. Muhammad Anwar 1975 SCMR 151. (7) Ch. Zahoor Ilahi v. The State NLR 1980 Criminal (Lah.) 701.
(10) Muhammad Shafi v. Muhammad Anwar Sumtha 1975 SCMR 219.
(11) Ahmad Ali v. The State 1983 P Cr. L J 1427.
(12) Sanaullah v. The State 1983 SCMR 15.
(13) Muhammad Yaqub v. Iltafur Rehman PLD 1974 SC 83.
(14) Khalid Javid Gillani v. The State PLD 1978 SC 256.
(15) Ch. Muhammad Khan v. Sanaullah PLD 1971 SC 324."
8. ' Out of the above-referred authorities, cited by the learned counsel for the appellant, the view that a plea of alibi' or any other plea taken by the accused cannot be considered at the bail stage was expressed in the cases Ghulam Nabi v. The State (1), Qamar Din v. The State (2), Ch. Zahoor Ilahi v.
9. The State (3) and Muhammad Yaqub Khan v. Iltafur Rehman (4). So far as the other authorities mentioned above are concerned, in those cases the Courts did not refuse to consider the plea of 'alibi' or the self-defence ; rather the Courts rejected the bail applications after coming to the conclusions that either the evidence in support of such plea was insufficient or it did not inspire confidence or there were some other attending circumstances of the case which influenced the mind of the Courts while rejecting the bail applications.
10. ' It may be observed here that in case Khalid Javid Gillani v. The State (5), the view taken in Muhammad Yaqub v. Iltafur Rehman was distinguished with the observations that section 497, Cr.
11. P. C. Does not contain any restriction on tfie Courts' power to assess evidentiary value of the material placed by the accused on the record. Thus, the bail was granted on the ground that the plea of 'alibi' was supported by an affidavit by a disinterested person,, a Medical Officer of high repute. It was further opined that in bail matters material produced by an accused person in support of his plea should be considered alongwith the prosecution evidence while deciding a bail matter.
12. ' In Nadara v. Jamait Khan (6), it was held that while judging as to whether there are reasonable grounds to believe that the accused is guilty of an offence punishable with death or transportation for life, the Court should consider the accusation of the accused and the evidence which the
(1) 1975 P Cr. L J 186 (2) 1975 P Cr. L .1 133
(3) NLR 1980 Criminal (Lah.) 701 (4) PLD 1974 SC 83
(5) PLD 1978 SC 256 (6) PLD 1968 SC 310 prosecution proposes to examine and the plea of defense, if any raised during the investigation or any other special circumstance pleaded by the accused.
13. ' In Muhammad Hussain v. Muhammad Anwar (1), the plea of 'alibi' was raised by the accused at bail stage and affidavits in support of the said plea were sworn by twenty Advocates. The plea, in the circumstances of the case, was held enough to justify enlargement of the accused on bail by the High Court. A petition for leave to appeal was refused by the Supreme Court.
14. ' In Ch. Muhammad Shaffi v. Muhammad Anwar Summa (2), the accused was released on bail by the High Court taking into consideration the plea of 'alibi' supported by the affidavits filed by 24 Members of the Provincial Assembly. A petition for leave to appeal was filed in the Supreme Court, but the same was dismissed.
15. ' The learned counsel for the respondents, Kh. Ali Muhammad, has also cited some authorities in support of his contention that the bail on the basis of plea of 'alibi' if supported by a reliable evidence, has been frequently granted by the superior Courts in Pakistan. Apart from the authorities referred to above, he also relied on the following authorities in support of his contentions.
16. ' In Ghulam Ghaus v. The State (3), the petitioner's plea of 'alibi' was considered at the bail stage with the observation that though the final determination with regard to the truthfulness of the plea was to be determined by the trial Court, yet the benefit of doubt, even at the bail stage, is available to every accused.
17. ' In Khurshid Alam v. The State (4), the accused was released on bail considering the plea of `alibi', which was supported by the affidavits of 18 lawyers.
18. ' In Shabir Ahmed v. The State (5), the bail was granted on the plea of `alibi' which was supported by one of the prosecution witnesses named in the F. I. R.
19. ' In Jannat Bibi v. Sher Muhammad (6), the bail was granted by the Sessions Judge on the plea of alibi'. The High Court refused to cancel the same and a petition for leave to appeal filed in the Supreme Court was also dismissed on the ground that the Sessions Judge was entitled to consider the plea of 'alibi' in the light of the affidavits produced in support of the same.
20. It is amply clear from the survey of the case-law on the subject that the weight of the judicial authorities is in favour of the view that the plea of 'alibi' if supported by evidence which is found reliable on tentative assessm ent, the bail can be allowed to an accused person on that score. It may be observed here that there is no restriction on the Courts' power to take into consideration the plea of 'alibi' or any other plea which is B supported by evidence, documentary or oral or even the circumstances sufficient to raise a reasonable possibility of same being true. The reliability of evidence in support of any such plea is to be seen in the light of peculiar circumstances of each case and it is open for the Court either to reject it or rely upon the same after making a tentative assessm ent. In
(1) 1975 SCM R 151 (2) 1975 SCM R 219
(3) 1983 P Cr. L J 2177 (4) 1982 P Cr. L J 1198
(5) 1980 SCM R 920 (6) 1968 SCM R 795 our view, it is paradoxical to say that while considering as to whether there are sufficient grounds to belies a that an accused is guilty of an offence punishable by death or transportation for life, only prosecution evidence or any other material placed on the record by the prosecution is to be looked into and evidence or material placed by an accused person seeking bail cannot be considered. It is our considered view that it is imperative for the Court of Law to consider any plea taken by an accused at the bail stage, alongwith the material placed by the prosecution on the record in support of accusations levelled against the accused. Therefore, we respectfully disagree with the view taken in some of the cases referred to above that plea of 'alibi' taken by the accused cannot be considered while deciding a bail application.
21. ' It may be mentioned here that the learned counsel for the appellant has also cited case Khadim Hussain v. The State (1), wherein the question of self-defence was not gone into at the bail stage on the ground that there was no material to justify the plea of self-defence and also because no such plea was taken under section 242, Cr. P. C. It has not been stated as an absolute rule of law in the aforesaid case that the plea of self.Defence cannot be considered at all while considering a bail matter.
22. In alernative, the learned counsel for the appellant has argued that assuming for the sake of arguments that the plea of 'alibi' can be considered at the bail stage, the bail should not have been allowed in the instant case, because in view of the learned counsel for the appellant, taking into consideration the contents of the affidavits filed by three senior Advocates, namely, Raja Muhammad Siddique Khan, Mr. B. A. Sheikh, Ch. Ali Muhammad and Muhammad Sarwar, the Clerk of the Court, it cannot be said that it was impossible for the respondents to be present at the place of occurrence, i,e, at 10-00 a.m., when the occurrence is alleged to have taken place, because on the tentative assessm ent of the contents of the said affidavits it transpires that the respondents were seen in the District Court premises, which is at a distance of about 2i miles, at 9-30 a.m. And as such the accused-respondents had sufficient time to reach the place of occurrence to commit the alleged offence.
23. ' We have thoroughly perused the contents of the affidavits and also considered the tentative conclusion drawn by the learned Judge of th Shariat Court and we are of the view that the said conclusion cannot be termed as violative of any norm of rule or law on the subject. As it is neither possible nor proper for us at this stage to express a final view with regard to the genuineness or otherwise of the plea taken by the respondents, we refrain io comment any further. So far as the argument that if the bail allowed by the Shariat Court on the plea of 'alibi' is not cancelled, the trial Court may be influenced even by the tentative assessment of the affidavits in support of the plea at the time of final disposal of the case is concerned, we are of the view that it has been very rightly emphasised by the learned Judge in Shariat Court in the impugned order that tentative conclusion drawn from the material in support of the plea should not influence the mind of the trial Court while judging the guilt or innocence of the accused after the trial. We fully endorse the view expressed by the learned Judge of the Shariat Court with the observations that if an opinion is expressed with regard to the evidence on record or on the other material, whether placed by the prosecution D or the accused, that should not be taken as conclusive and should no
(1) PLD 1981 SC (A J & K) 77 weigh with the trial Court or any subordinate Court while determining guilt or innocence of the accused at the proper stage. The opinion expressed with regard to any piece of evidence at the bail stage is made only on the tentative view of the evidence and is not a substitute for the conclusive view to be arrived at, after recording the evidence of the prosecution and that of the defence, if any.
24. ' In the light of what has been stated above we are of the opinion that this is a case of further inquiry, as has been held by the learned Judge in the Shariat Court, and there are no valid reasons to interfere with the discretion exercised by the Shariat Court in favour of the respondents. Hence, the appeals fail and are hereby dismissed.
25. ' Per RAJA MUHAMMAD KHURSHID KHAN, C. J.-I have had the advantage to read the judgment ably prepared by my learned brother Mr. Justice Sardar Said Muhammad Khan. 1 am in total agreement with the learned Judge. However, I would like to add the following : ' It is settled law that orders on bail applications should not be considered as routine orders involving, as they do, the liberties of the citizens; they must be carefully balanced and weighed in the scales of justice and the requirements of the relevant law as contained under sections 497 and 498, Cr. P. C. There, is, however, a further limitation on the Courts' discretion with regard to offences which are punishable with death or transportation for life which is that the accused shall not be released on bail in such cases if there are reasonable grounds for believing that he has committed such an offence. The reasonableness of the grounds has to be shown by the prosecution by displaying its cards to the Court as it may possess or is expected to possess as demonstratory evidence in the case both direct and circumstantial. It would, however, be incorrect to say that a person accused of an offence punishable with death or transportation for life cannot be admitted to bail except on grounds of age. Sex or infirmity as section 497, Cr. P. C. Also envisages that bail shall be refused if there appear reasonable grounds for believing that the person accused has been guilty of offence punishable with death or transportation for life and bail will be allowed if such grounds do not exist to the satisfaction of the Court. .
26. It would thus appear that if the Shariat Court/High Court forms an opinion that such reasonable grounds do not appear and there are sound grounds for further inquiry (as is in the present case), the prayer for bail may be allowed. The determination whether bail will be allowed to a person accused of an offence punishable with death or transportation for life, however, will depend on the facts of each case and no hard and sound principle or artificial rule is permissible in defining the classes of cases in which the Shariat Court/High Court should or should not exercise its discretion in allowing or disallowing the bail. The matter is essentially in the discretion of the Shariat Court/High Court and only limitation on the exercise of that discretion, apart from the legal restrictions contained under sections 497 and 498, Cr. P. C., is that the exercise of such discretion is to be in accordance with the dictates of justice and not arbitrary or fanciful. The view of the Shariat Court/High Court always carries weight unless it is shown to be perverse or based on view which no reasonable man will take. It, therefore, follows that where the Legislature itself does not define the limits or the grounds for the exercise of discretion, the Courts are not expected to lay down rules to fetter that discretion and it seems to me that while interfering with the orders of bail there should be some strong grounds as for instance that the order is perverse or manifestly wrong.
27. ' Release of an accused on bail may rest on the accusation levelled against him, the report under section 173, Cr. P. C., the evidence the prosecution proposes to examine and defence, if any, raised during the investigation or any other special circumstances appearing in favour of the accused or against the prosecution. Therefore, heinousness of the offence by itself is not sufficient to take away the discretion of the F Court to grant bail. This law is consistently followed in the Sub- Continent of India and Pakistan.
28. ' It has time and again been emphasised by this Court that bail should never be withheld as punishment. In cases of non-bailable offences coming before the Courts grant of bail is primarily in the discretion of the G Court and it should not be disturbed unless it is not exercised with due care and caution. The factors, that appeared to the learned Shariat Court in this case in granting bail to the respondents, are based on sound principles of law governing bail and they eminently merit great weight ; particularly for the reason that defence of alioi of the respondent is supported by affidavits by three counsels namely, Raja Muhammad Siddique, Mr. Basharat Ahmed Sheikh and Ch. Ali Muhammad and one clerk of the District and Sessions Court, namely, Muhammad Sarwar.
29. This factor creates reasonable possibility of .The defence of alibi to be true. It is also important that this defence of alibi was taken on the next day of the arrest of Muhammad Zaman.
30. It is also practically settled principle of law that even for the purpose of bail law is not to be stretched in support of the prosecution. If an H benefit of doubt arises (as is in the instant case) it must go to the accused. I feel that the Shariat Court dealing with the application has exercised the discretion in a legal fashion and formed its impression which could legally be formed. The discretion, therefore, cannot be disturbed. Th theory of alioi is the reasonable possibility in the circumstances of the cas and it found favour with the Shariat Court for good reasons. Th discretion so exercised by the Shariat Court, therefore, cannot legally b disturbed, Both the appeals thus merit no consideration and fail.
31. ORDER OF THE COURT ' For the reasons detailed above, both the appeals stand refused.