The respondent Masud Ahmad Kirmani alias Maqsud Ahmad, together with three others, who are his sister's sons, is accused of the commission of an offence under section 302/34 P.P.C. For having caused the death of Tasawar Hussain. The respondent, Masud Ahmad, was armed with a pistol while his three other co---accused were armed with hockey sticks. All the accused encircled the complainant party and attacked them. Masud Ahmad fired from his pistol and the shot hit Tasawar Hussain deceased in the face. The second shot fired by him hit Shahnawaz P.W. On the right arm.
The other accused caused injuries with their hockey sticks to Javed Akhtar (P.W.1.) and Shah Jehan (P.W.3.) Tasawar Hussain died at the spot.
2. The occurrence took place on 30th of September, 1971, and the respondent could not be arrested before 8th of October, 1971. The inquiry proceedings lingered on for a considerably long time and some of the delay occurred because two of the accused including the respondent produced defence evidence before the inquiry magistrate. The respondent produced three persons in defence namely, Havaldar Muhammad Anwar, Subedar Sardar Khan anal Subedar Ghulam Hussain Jafery who supported his plea of alibi. His plea is that he stayed with Ghulam Hussain Jafery who is his friend for the night of the 30th and Subedar Sardar Khan had issued a guest permit in favour of Subedar Ghulam Hussain Jafery on that day. Havaldar Muhammad Anwar claims to have made entries in the register.
3. The learned Sessions Judge granted bail to the respondent on the ground that the relevant entry in the register was signed by the respondent and at least two Army Officers, who testified to the issuance of a pass were not related to him. The learned Sessions Judge observed that in face of the defence evidence, there was scope for further enquiry and the case was covered by subsection
(2) of Section 497 Cr. P.C.
4. The learned counsel for the petitioner, Ch. Muhammad Abdul Wahid, has submitted that if the plea of alibi had some substance the respondent should have revealed the same as soon as he had appeared before the police. He points out that the Investigating Officer, when questioned on this aspect of the case, categorically denied that the respondent after his appearance before the police had set up any plea of alibi at any stage of the investigation. Subedar Ghulam Hussain Jafery with whom the respondent claims to have stayed at Sialkot claims to have visited Lahore 10/12 days after the date of the incident and stated that he told the Sub-Inspector that the respondent had stayed with him on the evening of the occurrence. The Sub-Inspector according to him kept him busy for a few minutes and told him that he would be recalled when necessary. This witness does not appear to have communicated any information to the relatives of the respondent on this aspect of the case.
The learned counsel for the petitioner also pointed out a number of defects in the defence plea. He submitted that the duty hours of Havaldar Muhammad Anwar on 30th of September, 1971, were till 2 p.m. And it is not explained how he came to make entries in the register of guests at 7. p.m.
Muhammad Anwar --admitted that the words "19 hours" had not been written in his hand. He also admitted that except three entries i.e. 43,44 and 45, the latter being relevant for our purposes, no time of the arrival of the guests has been given in the register. The learned counsel also pointed out that the register of guests was not being daily maintained and entries therein could not be implicitly relied upon.
5. The learned counsel for the respondent, Sh. Nasim Hasan, submitted that the learned Sessions Judge has taken a correct view of law in holding that there was still room for further enquiry and the case was covered by subsection (2) of section 497 Cr. P.C. He said that the respondent waited till his defence evidence was recorded and thereafter moved the Sessions Court for bail. It is his further submission that considerations for grant of bail are quite different from considerations for cancellation of bail. He urged that even if my reaction was that bail should not have been granted in this case, I should not proceed to cancel the bail unless I find that the order is visited by some illegality or suffers from perversity.
6. I do not think that the learned Sessions Judge took a correct view of law in this case. The evidence of the prosecution unanimously attributed the fatal shot to the respondent. The eye- witnesses were unanimous that the respondent had participated in the commission of the offence.
He was the only person equipped with a firearm. The fact that the respondent was not available to the police for about eight days after the commission of the offence is also very suggestive. It is to be mentioned that the respondent is an employee of WAPDA and was on leave for reasons of illness. There is no explanation forthcoming why did he take his journey to Sialkot on that particular day. The evidence of the Investigating Officer clearly shows that at no point of investigation the plea of alibi had been raised by the respondent before him. Even if it may be conceded. As Sh.
Nasim Hassan argued, that the Investigating Officer was suppressing the plea of the respondent, there was nothing to prevent the relatives of the respondent, who had the legal advice of capable lawyers, to raise this plea and ask for bail specially when this was supported by documentary evidence. In Muhammad Yaqoob v. State (PLD 1974 SC 83) the Supreme Court said that it was the function of the trial Court to assess the evidence of alibi. In that case the plea of alibi of the respondent was supported by two officers of the Provincial Civil Service as well as by documentary evidence of the register of the stamp vendor. Their Lordships proceeded to cancel bail granted to the respondent by the High Court. Sh. Nasim Hassan points out that the precedent case is distinguishable from the present case. In that case corroborative evidence in the form of the opinion of the Ballistics Expert that the weapon recovered from the respondent had been used in the commission of the offence was available to the prosecution. True, that in the present case no such evidence is available, but the fact stands that the plea of alibi was raised at a late stage and cannot be given effect to even for the purposes of bail for this reason only. The defence evidence shall be evaluated by the trial Court at the proper time. According to the prosecution evidence the respondent was the only person armed with a firearm and he used it. The plea of alibi did not in any way detract from the strength of prosecution story. In my view, there was no scope for further enquiry as that would be necessary when there is some unresolved contradiction in the prosecution story or there is some irresistible and unimpeachable evidence in juxtaposition to the prosecution story. Whether such evidence is or is not available will depend on the facts of each case. The mere raising of a plea of alibi supported by some sort of oral and documentary evidence is not enough to bring the case within the ambit of subsection (2) of section 497 Cr.P.C. I, therefore, direct that the bail granted to the respondent shall be cancelled and he shall surrender to his bail bonds.
H.B.T./J-58/L