' On 10-12-1981 at 3.35 p. m. Mst. Razia Begum lodged F. I. R. No, 324 at Police Station Baghbanpura.
This was about the murder of her husband Bashir. She named six persons, namely, Karamat, Arif, Latif, Liagat, Manzoor Hussain and Noor Ahmad as the assailants of her husband who while armed with lethal weapons shot him dead. The local police arrested four of the accused. Noor Ahmad and Manzoor Hussain applied for anticipatory bail before the learned Sessions Judge. Interim bail was not allowed by the Additional Sessions Judge. On the date of hearing the two petitioners absented themselves apprehending that they were likely to be arrested by the police present outside the Sessions Court. Their application was dismissed in default by order, dated 22-12-1981.
' They accordingly filed Criminal Miscellaneous No, 3536-B of 1981 in this Court for pre-arrest bail. A learned Judge of this Court admitted them to interim bail for a week with the direction that they should appear before the lower Court. They appeared again before the same Additional Sessions Judge who had earlier dealt with the matter and repeated their request for bail before arrest. This was turned down by order, dated 25-1-1982. Both of them were accordingly arrested.
' Now they have come to this Court and want to be released on bail after arrest.
2. Mian Mahmood Ali Kasuri has appeared on behalf of both the petitioners, He took me through the orders passed by the Additional Sessions Judge, dated 25-1-1982 and 17-2-1982.
' Learned counsel for the petitioners repeated the plea which the petitioners took before the Additional Sessions Judge. It was alibi. Learned counsel argued that on both the occasions when the orders, dated 25-1-1982 and 17-2-1982 were passed by the Additional Sessions Judge, the plea was not considered. Reasons given by the Judge were not warranted by law. It was contended that the learned Additional Sessions Judge could not brush aside the plea of alibi. He was under a legal duty to consider, examine and adjudicate upon it.
' Learned counsel repeated the same plea before me. He submitted that I am fully competent to look into this ground. Learned counsel submitted that what the law requires me to do is that I should refrain from expressing any opinion at this stage regarding the merits of the case because this is not the stage for that. In this sequence the two passports of the petitioners were shown to me. It was contended that the petitioners eft Pakistan for India on 1-12-1981 and returned to Pakistan on 17th of that month. My attention was drawn to different stamps on the passports.
According to the learned counsel this was a fool proof alibi. It was, therefore, cruel to keep the petitioners behind the bars indefinitely because it is not known when the trial may commence.
Learned counsel submitted that there are numerous decisions of this Court as well as Supreme Court of Pakistan where the plea of alibi was considered at the preliminary stage. He cited the cases of Muhammad Azam v. Khalid Javed Gilani etc. (1) and Ali Sardar v. Gul Moeen and another (2).
3. I have heard the two Advocates appearing on behalf of the complainant and the counsel for the State. All three of them vehemently opposed the grant of bail. Learned counsel for the complainant referred to the medical certificates produced by Noor Ahmad petitioner in a criminal case pending against him in the Court of a Magistrate at Lahore. Before that Court Noor Ahmad produced a medical certificate dated 14-11-1981. This was for two days only. Thereafter another certificate was produced on 21-11-1981 which was valid upto 27-11-1981. This was followed by another certificate, dated 28-11-1981 which was uptil 10-12-1981. According to the learned counsel the doctor had advised him medical rest. He was only allowed to shift from where he was residing to another Mohalla for the change of climate. Learned counsel argued that the certificates produced by Noor Ahmad contradict the plea of alibi. Other grounds were also urged by learned counsel. For instance, the passports produced are not the conclusive proof of the plea. Even, otherwise, the so- called presumption that the two petitioners left the country was rebuttable. It was submitted that for the purpose of appreciation of plea of alibi and its adjudication recording of some material evidence was necessary. In support of this contention learned counsel wanted me to note the case of lqbalur Rehman v. The State (3).
4. The sole ground urged before me is the plea of alibi. I agree with learned counsel for the petitioners that there is no bar for me to consider and examine this plea at this stage. Nevertheless I cannot go beyond that. This is no stage where I have to decide about the genuineness of the plea.
' Learned counsel for the petitioners could not deny the certificates referred to by the learned counsel for other side. Last certificate was valid up to 10-12-1981. This is the day when the occurrence took place. There are two different sets of documents; one consists of the passports and the other are the medical certificates. Both belong to the petitioners, If I were to say a word regarding either of the documents for or against the petitioners that is bound to affect the whole case. Justice demands not to do so.
Dictum of the Supreme Court is binding on this Court as well as the Courts below. I would go to the extent of observing that even an obiter of the Supreme Court cannot be ignored. But at the same time I am under a legal obligation to examine and consider the relevant facts before the law laid down in a particular case is applied to the one in hand.
Therefore, after considering and examining the plea of alibi in the light of the arguments advanced by the learned counsel for the parties, c. I have come to the conclusion that it is premature to give any finding on this plea especially when the challan in this case has not yet been submitted in Court.
(1) 1981 SC MR 734 (2) 1981 SC MR 860
(3) PLD 1974 SC 83 In this very sequence I would like to further add that bail whether it is pre-arrest or after arrest, it is always a matter of judicial discretion. The person applying for bail must therefore come with clean hands and must throw himself completely at the mercy of the Court. The petitioners' conduct was not above board. When their matter was sub judice before the Additional Sessions Judge they absented themselves on the pretext that they were likely to be apprehended by the police present outside the Sessions Court. This was a lame excuse. There was no justification to slip away.
5. After taking all the relevant facts into consideration I have come to the conclusion that at this stage the petitioners are not entitled to the concession of bail on the plea of alibi.