1. The present bail application has been moved on behalf of the applicant who is involved in the case registered with the Police Station City Jacobabad as Crime No.153 of 1990 under sections 302 and 149, P.P.C. And 13-D, Arms Ordinance.
2. The prosecution case is that on the date of occurrence when deceased Abdul Hakeem was going towards his office in the National Bank of Pakistan, Jacobabad and the complainant was going towards his shop at about 9 o'clock in the morning there came one motor-cycle and a Suzuki car which stopped near the deceased. Three co-accused who were riding the motor-cycle got down and also the present applicant and two other co-accused got down of the said Suzuki car. Co- accused Bashir Ahmad is said to have taken out a country-made pistol from the folds of his Shalwar and fired at the deceased while the present applicant is also alleged to have fired from his revolver at the deceased hitting him in the chest. It is further alleged that the co-accused Bashir Ahmed and all other accused then also fired at the deceased. The accused party is then said to have gone away on the same vehicles on which they had come. The complainant party noted the number of motor-cycle but they did not note the number of the Suzuki car. A bail application was moved on behalf of the present applicant before the Court of Sessions Judge, Jacobabad, which was rejected and therefore, this bail application.
3. I have heard Messrs Muhammad Aslam Bhutto and Sardar Khan Lashari for the applicant. Mr. Muhammad Daud Baloch Advocate for complainant and Mr. Zawar Hussain Jafferi, A.A.-G. Sindh have argued for the prosecution. The learned counsel for the applicant have submitted that the applicant is a respectable person being an Executive Engineer who has been falsely implicated in the present case on account of enmity between the parties. It is further submitted by the learned counsel that the deceased was an Area Manager in National Bank of Pakistan and, therefore, in order to rope in a person of equal status the complainant party has involved the present applicant who is a high ranking officer in the WAPDA. It is pointed out that earlier on 14-8-1990 an F.I.R. Was lodged by the present applicant being F.I.R. No.124/90 at the same police station under section 302, P.P.C. For the murder of his relative Shahdad wherein the present complainant Ghulam Hussain and others have been shown accused and, therefore, the present applicant has been falsely implicated by them in the present case. It is also submitted that the incident is said to have taken place in the broad daylight in a busy commercial area of the town but no independent witness is cited in the case. All the P.Ws. Shown in the F.I.R. Arc related to the complainant. The learned counsel for the applicant have also taken plea of alibi. They have produced two affidavits of Assistant Engineer and Head Clerk from the office of the present applicant situate in Sibi Town which is at a distance of 100 miles from the place of occurrence, showing that the applicant was present in the Headquarter at Sibi on the said date from 8 o'clock in the morning till about 2-30 p.m. A copy of the daily diary from Sibi Police Station has also been produced showing that the present applicant was present there at 10-30 a.m. In the morning and had got lodged a report with the said police station.
4. A certificate from the Superintending Engineer G.S.O. Circle WAPDA, Quetta has also been produced showing that on the day of occurrence the present applicant had spoken to him at 10 o'clock in the morning from Sibi. From the above submissions the learned counsel have contended that these documents sufficiently show the presence of present applicant at Sibi at the time of occurrence and would show that he has been falsely implicated in the present case.
5. The learned counsel have placed reliance on the case of Miran Bakhsh v. State PLD 1989 SC 347 wherein a Bench of 5 Judges of the Honourable Supreme Court had set aside the order of the High Court cancelling pre-arrest bail granted to accused on the grounds including the ground of his being a landlord and businessm an and being out of station on a business trip during the incident.
6. They have also placed reliance on the case of Akram Khan v. State and others 1978 SCMR 242 wherein the Honourable Supreme Court had observed that plea of alibi is to be dealt with on its own merits and it is not possible to lay down a rule of thumb to be followed in all cases of pleas of alibi. In this case the Honourable Supreme Court had declined to interfere with the order of the High Court granting bail taking into consideration a certificate issued to accused (employee of Defence Forces) from his Unit as well as Unit Register stating his presence on duty at another station at time of occurrence. They have also placed reliance on the case of Muhammad Bux and 2 others v. State Criminal Bail Application No.575 of 1990 wherein my brother Qaisar Ahmad Hamidi, J. Has granted bail on the plea of alibi where accused Muhammad Bux had produced a certificate from United Bank, Thul showing his presence there.
7. Mr. Muhammad Daud Baloch, learned counsel for complainant and Mr. Syed Zawar Hussain Jafferi, Asstt. A.G. Have submitted that the deceased has suffered as many as 18 fire-arm injuries some of which include exit wounds. They have opposed the ground of alibi and have placed reliance on the case of Bahadur v. Muhammad Latif and others 1987 SCMR 788 and have submitted that the theory of alibi is still to stand test of scrutiny and, therefore, at this stage the same cannot be taken into consideration. The learned AA: G. Has further submitted that the statements of the P.Ws.
8. Recorded under section 164, Cr.P.C. Fully corroborate the complainant's version.
9. I have given anxious consideration to the submissions of the learned counsel. The present applicant is a respectable person employed as an Executive Engineer in WAPDA. The documents brought on record show that he had lodged F.I.R. Himself earlier against the present complainant Ghulam Hussain and others for the murder of his relative Shahdad and, therefore, the enmity between the parties is very much there and the possibility of his false implication cannot be ruled out. The certificate issued by the Superintending Engineer of WAPDA and other documents brought on record support the contention of the applicant that he was at that time present at Sibi and it would hardly be possible for him to cover a distance of 100 miles to come to Jacobabad to participate in the alleged crime. It may also be observed that the murder of deceased Abdul Hakeem had taken place all of a sudden. I am, therefore, inclined to follow the observations made in the case of Akram Khan v. State and another cited above and rely on the observations made by my learned brother Qaisar Ahmad Hamidi, J. In Criminal Bail Application No.575 of 1990. In the above circumstances I am of the view that the case of the present applicant needs further enquiry and he is entitled to grant of bail. I accordingly confirm the interim bail granted to the applicant earlier on same terms and conditions.
10. It may, however, be observed that the above observations are tentative in nature and should not influence the mind of the trial Court in any manner. It will also be open to the trial Court to cancel the bail granted to the applicant if at any stage it is shown that the applicant had participated in the commission of offence and the documents referred to above were an arranged affair.