' Ali Gohar brother of Fazal Elahi deceased made a report in police post G.T.S., Haripur on 13-5-1988 at about 2-30 p.m. To the effect that at about 7-00 a.m. In the morning the deceased was cleaning the courtyard of the village mosque when petitioners Muhammad Shafique and Muhammad Iqbal appeared with firearms. Both of them fired at the deceased effectively resulting in his death. He further stated that the dead body is lying in the mosque. He named Muhammad Ilyas and Taj Muhammad as the persons who have witnessed the occurrence. The motive attributed for the occurrence is party-feud.
2. The petitioners moved an application with the Magistrate 1st Class for seeking their bail but the same was turned down vide his order dated 21-7-1988. Their efforts in this regard also proved abortive with the learned Additional Sessions Judge, Haripur where their application too was rejected vide his order dated 30-8-1988 and hence this petition.
3. I have heard Kh. Nazir Ahmad Advocate learned counsel for the petitioners, Muhammad Aslam Khan learned Assistant Advocate-General for the State and Mufti Muhammad Idris Advocate learned counsel for the complainant at length and also perused the record of the case with considerable degree of care.
4. It is contended on behalf of the petitioners that the complainant stands belied from the very statements of the two alleged eye-witnesses named in the F.I.R. i.e, Muhammad Ilyas and Taj Muhammad according to whdse statements recorded under section 161, Cr.P.C. The complainant seems to have reached the spot after the occurrence and as such was not an eye-witness as he attempted to pose himself in the F.I.R. As such to say that the petitioners have been directly charged will rather be a misnomer. He further contended that, according to the site plan the Investigating Officer has not given the distance between the place where the occurrence has taken place and the one where the two alleged eyewitnesses were present which, on a rough estimate, appears to be at such distance from each other as could not make it possible for the said witnesses to have seen the occurrence their presence on the roof of a house without any specific purpose notwithstanding. He referred to the medical evidence in order to stress that it does not conform to the number of the shots allegedly fired at the deceased nor indicate the nature of injuries keeping in view the distance between the assailants and the deceased. He finally argued that there has been brought on the record reliable evidence regarding alibi qua petitioner.
Muhammad Iqbal in the form of affidavits of three co-residents of the village namely, Ghulam Rasool Chanzeb, a closed relative of the deceased, and Muhammad Ishaq, according to which Muhammad Iqbal petitioner had been working in the re-construction of a fallen wall of the house of Ghulam Rasool since 5 o'clock in the morning of the day of occurrence and was busy working there when the firing was heard and the petitioner was still working there when they learnt of the murder of the deceased; whereas, according to Chanzeb, he was busy ploughing his field close to them of the alleged eye-witness Taj Muhammad who too has been ploughing his field since 5-30 a.m. In the morning of the day of occurrence, which was the month of Ramazan, when they heard the firing and, on their rushing to the site, they found the assailants already having made good their escape and that the people present there did not name the assailants of the deceased. The learned counsel for the petitioners therefore urged that in view of the material brought on the record in general against both the petitioners and against Muhammad Iqbal petitioner in particular there is a scope of further inquiry into their guilt and as such they are entitled to bail prayed for.
5. The learned Assistant Advocate-General on the other hand submitted that it is a broad daylight occurrence and the petitioners are directly charged in the F.I.R. He further submitted that there has been recoveries of one empty of .12 bore and of Rifle each from the spot indicating that there were more than one assailants of the deceased. He also referred to the medical evidence which, according to him, lends support to the prosecution version of the case, and maintained that there being no such enmity existing between the parties as to falsely implicate the accused-petitioners there is no chance of substitution and as such the petitioners do not deserve the release on bail. He finally argued that the plea of alibi can only be pressed into service at the trial and cannot be taken into consideration for the purpose of bail at this stage of the proceedings.
6. The learned counsel for the complainant submitted that while the bail application of the petitioners was rejected by the Sessions Judge on 30-9-1988 there are no reasons coming forth for moving the instant petition after such a long time and on this score alone the petition, being incompetent, merits dismissal.
7. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
8. Before I proceed further I would like to dispose of the objection of the learned counsel for the complainant regarding the competency of the petition. I am of the view that there being no period for moving such an application prescribed, or specified, by law, no embargo can be put on such a moving, if so advised, by the accused petitioners; more so when their bail application had already stood rejected by the Additional Sessions Judge and the power to entertain such an application is concurrently available to this Court under the law.
9. While I do not intend to enter deep into the marits of the case by appraising various pieces of evidence coming forth against and for the petitioners, lest the cause of either of the parties is prejudiced at the trial, I am of the considered opinion that case of bail is made out in so far as petitioner Muhammad Iqbal is concerned, the reasons being that he has taken a plea of alibi which, for the present, receives substantial support from the three co-villagers of his in that at the time of occurrence he was busy reconstructing the wall of Ghulam Rasool and that after hearing the shots fired effectively at the deceased when Chanzeb, Ghulam Rasool and Muhammad Ishaq rushed to the spot soon thereafter, neither any assailant was there nor the people present could name any one. I cannot subscribe to the view expressed by the learned counsel for the State that the plea of alibi cannot be taken into consideration at all, at bail stage. For, there cannot be laid any inflexible rule in this regard and, in every case, the plea of alibi is to be considered in the context of its own facts.
10. In the instant case, I find that three ostensibly dis-interested co-villagers of the parties gave a statement in the form of affidavits duly sworn before an Oath Commissioner and wherein they affirmed the presence of the petitioner Muhammad Iqbal at the relevant time busy in re- construction of fallen wall of the house belonging to Ghulam Rasool. In the absence of any proof of these persons' evidence being not fit to be relied upon, I am afraid, the concession of bail cannot be refused to accused-petitioner Muhammad Iqbal. In this regard reference may be made to the case of Khalid Javed Gilani v. The State PLD 1978 SC 256. Additionally this fact alone renders the case of the petitioner concerned needing further inquiry into his guilt. For, a perusal of the record reveals that, save collecting the aforementioned three affidavits, the Investigating Agency did not care to find out the truth of the matter in the context thereof. I am, therefore, of the view that such a situation affords reasonable grounds for further inquiry within the meanings of subsection (2) of section 497, Cr.P.C. And pending such inquiry the petitioner is entitled to bail. I seek strength in this regard from a decision of the Supreme Court in the case of Lt.-Gen.(Retd.) Fazal-e-Haq v. State reported as 1989 SCM R 2071.
11. Viewed in the perspective of the foregoing discourse, I have no hesitation in holding that accused-petitioner Muhammad Iqbal deserves to be enlarged on bail.
12. Resultantly I accept this petition partially and order hereby that he may be released on bail provided he furnishes bail bond in the sum of Rs,1,00,000 (Rupees one lac) with three sureties in the like amount each to the satisfaction of Ilaqa/Duty Magistrate, Haripur.
13. The bail application of Muhammad Shafiq, however, stands dismissed.