' This Criminal Miscellaneous Petition No, 166 of 1988 has been moved by Shah Gulzam and Shah Nawaz petitioners for their release on bail against whom and Mir Azam Khan a case under section 307/34, P.P.C., has been registered at Police Station, Ghazni Khel. The learned Additional Sessions Judge, Bannu at Lakki while accepting the plea of alibi advanced by Mir Azam Khan co-accused of the petitioners has admitted him to bail pending trial.
2. The complainant feeling aggrieved of the to Mir Azam Khan has also moved Criminal Miscellaneous Petition No, 162 of 1988. Since both the petitions are the outcome of one and the same F.I.R., therefore, I propose to dispose of both these matters by this consolidated order.
3. By a short order I have admitted Shah Gulzam and Shah Nawaz petitioners in Criminal Miscellaneous No, 166 of 1988 to bail for reasons to be recorded later on. These are the reasons for it.
4. Briefly stated facts leading to filing of this application are that on 2-8- 1988 at 10-00 a.m. Diwan Shah complainant made a report at Police Station Ghazni Khel, Tehsil Lakki, District Bannu to the effect that on the same day at 730 a.m. He was plastering the roof of his house and asked his brothers Sarwar Shah and Hussain Shah to supply him with the mud when in the meantime Shah Gulzam, Shah Nawaz and Mir Azam Khan accused emerged from the western side duly armed with Bandooks' and started firing at him with which he was hit and fell on the roof. The accused were alleged to have decamped towards Pahr Kel. The complainants two brothers Sarwar Shah and Hassan Shah were stated to have witnessed the occurrence. The motive for the crime was alleged to be the dispute over the same house on a top of which the occurrence had taken place.
5. On the same date within an hour of the lodging of F.I.R. No, 83 Shah Gulzam also approached the same police station and lodged F.I.R. No,
84. The allegations in this F.I.R. Are that about 7-30 a.m. In the morning he was on his way back from his shop to his house while his brother Shah Nawaz was going from his house towards their lands called Bergotaza. In the meantime, Diwan Shah Complainant in the cross-case, Akbar Shah; Sarwar Shah and Hassan Shah ascended the roof of their house and started abusing him (the first informant and Shah Nawaz) and also opened firing at them. They were lucky to have escaped unhurt and ran towards their houses for shelter. The motive was same as set up in F.I.R. No,83.
6. S. Zafar Abbas Zaidi, the learned counsel for the petitioner has made the following submissions in support of his plea for cancellation of bail extended to Mir Azam Khan accused-respondent:--
(a) That the two co-accused namely, Shah Gulzam and Shah Nawaz of accused-respondent Mir Azam were arrested and applied for bail which was rejected by the two Courts below while Mir Azam accused-respondent has made himself scarce;
(b) that after his pre-arrest bail was rejected he made an application for bail after arrest which was also rejected by the learned Magistrate;
(c) that pending bail application, the learned Additional Sessions Judge took upon himself to undertake the verification of plea of alibi advanced by Mir Azam Khan and examined a witness, namely, Muhammad Quresh, Second Master, Government High School Togh Serai where Mir Azam accused-respondent is serving as Headmaster despite an objection being raised by the petitioner's counsel on the ground that it would prejudice the prosecution's case during the trial;
(d) that the learned Additional Sessions Judge overruled this objection and illegally accepted the plea of alibi and had released him on bail;
(e) that Mir Azam accused-respondent and Shah Gulzam and Shah Nawaz petitioners in Criminal Miscellaneous No, 166 of 1988 are not entitled to bail on the grounds, inter alia that they have been directly charged in the promptly lodged F.I.R. For an effective firing at Diwan Shah complainant which is substantiated by the recoveries.
7. As against this, Mr. Sanaullah Khan Gandapur, the learned counsel for the petitioners, in Criminal Miscellaneous No, 166 of 1988 and respondent No,1 in Criminal Miscellaneous No, 162 of 1988 contended that there was no bar in law against undertaking the verification of the plea of alibi of accused-respondent No,1, Mir Azam, by the learned Additional Sessions Judge at the stage of bail and placed reliance on Falak Sher v. The State PLD 1981 FSC 240. He further submitted that notwithstanding the examination of Muhammad Quresh, Second Master of Government High School, Togh Serai as C.W.1, the learned Additional Sessions Judge, while granting bail to the petitioners on the plea of alibi had very cautiously passed the order which was thus unexceptionable. In support of his contention that the plea can be taken into consideration for the purposes of bail and the tentative assessment of its evidentiary value was permissible at the bail stage, he placed reliance on Muhammad Zaman v. The State 1985 P Cr. L J 488, Sakhi Sultan v. The State 1986 P Cr. L J 117 and Muhammad Hussain v. Muhammad Anwar Ahmad Khan 1975 SCMR 151.
8. The first question to be addressed in connection with Criminal Miscellaneous No, 162 of 1988 would be as to whether the course adopted by the learned Additional Sessions Judge in recording the evidence at the stage of bail is permissible under the law. In Falak Sher's case, Aftab Hussain, C.J. As his Lordship then was, had repelled the objection that law allows a Court to take evidence at the stage of bail and that as such it could not be read as evidence unless formally proved on record. It was held that there is no law prohibiting the Additional Sessions Jduge to record statement of a witness at the stage of bail because section 540, Cr.P.C. Confers very wide powers on Courts to examine witnesses not only at the stage of inquiry or trial but also at the stage of 'other proceedings under this Code'. It was further held that the proceedings of trial under sections 496, 497 and 498, Cr.P.C. Are undoubtedly proceedings under the Code and can attract the provisions of section 540, Cr.P.C. No doubt, subject to the condition of exercise of discretion that the examination of a witness is essential for the proper decision of a 'case. While conceding that there is no bar against recording the statement of a witness at the stage of bail by a Court which is seized of bail matter, the question is whether in the instant case it was essential for the Lower Court to have recorded the statement of a Second Master of the School who is not cited as a P.W. In the calendar of witnesses. My answer would be in the negative because if such a course is adopted the expression of opinion one way or the other will affect the merits of the case at the stage of trial.
After recording statement even the learned Additional Sessions Judge was confronted with this difficulty which he had tried to wriggle out by saying that at the stage of bail he could not give any decision as to 'whether the relevant entries showing presence of the accused at Togh Serai, dated 2-8-1982 at the School were or not ante-dated' and further that 'it will be seen at the proper stage of trial'. I must, therefore, hold that notwithstanding lack of any bar on the Court which is seized of the bail matter to record the statement of a witness it would be more appropriate not to resort to this course.
9. The next question is whether the bail has been rightly allowed by the learned Additional Sessions Judge to Mir Azam Khan respondent. It is now well-settled that plea of alibi raised at, the bail stage has to be dealt with on its own merits. In Akram Khan v. The State 1978 SCMR 242 their Lordships of the Supreme Court were pleased to observe that the High Court had taken into consideration the certificate issued to the accused from his Unit stating his presence on duty at the time of occurrence. The order of the High Court granting bail on the plea of alibi was held neither unreasonable nor perverse. From the authorities cited at the Bar, the legal position that emerges is that if the Court is satisfied from the material placed before it that the plea of alibi raised support of the bail application was not without force, there is no legal bar on the Courts to take such plea for consideration for the purposes of granting bail.
10. In the instant case, the learned Additional Session Judge has perused the record and after tentative assessm ent thereof, he has come to the conclusion that the plea of accused-respondent needed further inquiry and thus admitted him to bail. This view of the learned Additional Sessions Judge does not seem to be either perverse or arbitrary. I would, therefore, uphold his order.
Resultantly Criminal Miscellaneous No, 162 of 1988 entitled Diwan Shah v. Mir Azam Khan and others being without merits is dismissed.
11. Reverting to the plea of bail contained in Criminal Miscellaneous No, 166 of 1988 entitled Shah Gulzam and another v. The State Mr. Sanaullah Khan Gandapur, the learned counsel for the petitioners contended that there are two conflicting versions of the incident existing in the case and that which version was correct has yet to be decided and, therefore, the petitioners are also entitled to bail.
12. S. Zafar Abbas Zaidi, the learned counsel for the complainant has opposed the plea of bail raised on behalf of the petitioner and contended that the petitioners version contained in F.I.R.
No,84 was a counter-blast to F.I.R. No,83 so as to claim bail because it was not possible that if three persons had opened firing from the top of the roof at the petitioners they would have escaped unhurt.
13. After hearing the learned counsel for the parties as well as the learned counsel for the State, I am inclined to admit the two petitioners to bail. I find that there is material on the record to lead to a prima facie conclusion that there was apparently cross-firing between the parties during the course of which Diwan Shah complainant in F.I.R. No, 83 was hit by the firing which has been attributed to three persons without effective fire shots being assigned to one or two of the co- accused of the petitioners. There being two versions regarding the same occurrence, it would be premature to say that which party was aggressor notwithstanding the fact that one of the parties had escaped unhurt while the other side had sustained gunshot injuries.
14. For what has been stated above, the petitioners are allowed bail in the sum of Rs,20,000 with two sureties each in the like amount to the satisfaction of Assistant Commissioner, Lakki.