' Mehtab, complainant, reported the incident of the murder of his father Khaliq Dad and attempted murder of P.W. Jawaid which was incorporated in F.I.R. 120, dated 12-6-1988 of Police Station Khanpur and resultantly a case under section 302/307/148/149, P.P.C. Was registered against Gul Hayat petitioner, his brother Abdullah Shah and three others. In this report it was enumerated that while he, his father and wife were present in the house then 7/8 persons including police personnel, Gul Hayat petitioner and his brother Abdullah Shah entered the courtyard of the house and on enquiry of his father as to who were they and why had they entered the house, Abdur Rashid asked his brother to shoot him and on this Gul Hayat fired which hit the deceased who died on the spot.
Thereafter, all these persons started firing and tried to run away and with this firing Jawaid also received injury.
2. The petitioner approached both the lower Courts for bail but his request was not acceded to and hence this application.
3. The learned counsel arguing for the petitioner pressed for bail on the grounds; (1) Alibi of the petitioner and (2) Cross-case. However, as for the second ground of cross-case the same cannot be considered for the first time in this Court as bail was not claimed on this plea in the lower Courts, in spite of the fact that the same was available and could have been urged and pressed in those Courts. Learned counsel, therefore, confined his arguments to the ground of alibi. In this context he submitted that on the day of occurrence i,e, 12-6-1988 the petitioner and his brother Abdullah Shah had attended the Court of Civil Court 1st Class, Abbottabad in connection with a civil case brought by them against Masoodur Rehman etc. For declaration and damages and that on their application to the higher Police Officer when this plea of alibi was enquired into then the same was found correct and the concerned officer recommended their discharge under section 169, Cr.P.C. In support of this ground the police recorded the statement of (1) Sheraz Kiani, Advocate who was appearing as a counsel for the petitioner in the civil Court and according to him the petitioner and his brother Abdullah Shah had come to his office on 12-6-1988 at 7-30 a.m. And remained there till 1-30 p.m. (2) Muhammad Hayat Khan Muharrir Court of Civil Judge who also said that at 7-30 a.m.
On 12-6-1988 Gull Hayat and Abdullah Shah visited him in his room in connection with their civil case and waited there till 1 p.m. And thereafter they appeared in Court and then went away, (3)
Allah Dad Khan, Tehsildar Haripur in his statement under section 161, Cr.P.C. Said that he had gone in connection with the case of the petitioner to the Court of Civil Judge and that the petitioner met him there at 8/9 a.m. And (4) Aminullah EA.C. Gave statement that he had sent for the petitioner and his brother on 12-6-1988 at 11 a.m. For some private talk. It was, therefore, stressed that on the strength of these statements the plea of alibi was admitted correct by the I.O. And D.S.P. And although the petitioner was not discharged under section 169, Cr.P.C. Yet his name has been placed in column No,2 of the challan. In view of this state of record it was argued that the case of the petitioner is that of further enquiry and, therefore, he is legally entitled to the concession of bail.
In support of this proposition some precedent cases were also cited wherein accused were allowed bail when their plea of alibi was verified as correct. As against this the learned State counsel and also the learned counsel privately engaged by the complainant opposed the application and submitted that petitioner remained absconder for sufficient time; that he is directly charged in the F.I.R., that the plea of alibi is false and unreliable and as such the petitioner cannot be allowed bail on such a false plea. The submissions of either side were considered in the light of the materials on record.
4. It is thus obvious that neither the case was argued on merits nor in view of the direct charge of effective firing against the petitioner by the inmates of the house where the murder was committed and which is supported by Muhammad Iqbal, Malik Faml Dad, Abdur Rashid and Malik Abdul Qayum it was possible at this stage to claim bail on this ground. There is no denying the fact that in appropriate cases bail on the plea of alibi can be allowed and complete bar over power of the Court in this respect cannot be imposed. Whenever such a plea is raised it should require due attention and the Court would be obliged to provisionally and tentatively determine whether the plea taken up is of a nature which finds support from an unimpeachable, blameless and established source and thus can be safely acted upon as a ground for bail. However, at the same time it should be kept in view that at bail stage final adjudication on the evidence relating to alibi so as to determine its truth or otherwise would not be permissible as it would be the function of the trial Court. I would, therefore, refrain from commenting on this plea to the extent to hold that in presence of this plea the A prosecution allegations are not true but are rather negatived by the alibi produced by the petitioner. I have read the statements of the witnesses examined by the police to prove alibi and am of the view that these are not of the quality which can belie and falsify the definite and categorical assertion of the prosecution at this stage. It has been repeatedly held that the determination of guilt on the basis of the materials on the case file is primarily the duty of the Court and the finding of the Police Officer would have no binding effect and particularly when the conclusion of the police is not based on solid and sound reason as in the instant case. The authorities cited at the bar by both the sides proceed on their own facts and would have no application to the facts and circumstances of this case. I am, therefore, of the opinion that the learned Additional Sessions Judge was perfectly justified in refusing bail on this plea of alibi. The petitioner has remained absconder till 14-1-1989 for about 7 months and the learned counsel even remotely did not refer to this aspect in his arguments to explain the abscondence in order to avoid adverse inference and moreso when he has not at any stage alleged lack of knowledge of the charge against him.