BASHARAT AHMED SHEIKH, J.---This appeal has been filed by Abdul Haq on whose instance a case of murder was registered by Mirpur Police against Ghazanfar Ali, Aftab Hussain and Mahboob Hussain sons of Feroze Din, the respondents before us. All the three have been granted bail and the complainant seeks, through this appeal, cancellation of their bail. The order under appeal was passed by the Shariat Court on 28th of May 1991 and Ghazanfar All was ordered to be released on bail. By the same order the Shariat Court, rejected the prayer for cancelling the bail of Aftab Hussain and Mahboob Hussain.
2. The occurrence in the case took place on the 11th of February 1991 at about 6-30 a.m. It is stated in the F.I.R. that complainant Abdul Haq and Muhammad Yusuf, who had come to Abdul Haq's house for an overnight stay, were standing in the court-yard of Abdul Haq's house when accused Ghazanfar Ali alongwith two unknown persons entered the court-yard and started firing with `kalashnikov' guns as a result of which Muhammad Yusuf received fatal wounds and died on spot.
It is stated in the F.I.R. that the occurrence had also been witnessed by Tariq Mahmood and Masud, two sons of the complainant Abdul Haq. The F.I.R. further states that after committing the offence the accused persons escaped in a car, bearing Registration No, Karachi 092-226, which was parked at nearby place on the road side. Complainant Abdul Haq and three respondents are, inter se, first cousins, and according to the F.I.R. are inimical to each other. A case under section 5 of the Islami Tazeerati Qawaneen Nifaz Act and section 307/34, P.C. having been registered against Ghazanfar Ali, accused respondents Aftab Hussain and Mahboob Hussain were also found to be connected with the offence and were arrested under the aforesaid sections as well as section 109 of the Penal Code.
3. The District Criminal Court while disposing of the bail applications filed by the, accused persons, allowed bail to Aftab Hussain and Mahboob Hussain but a similar prayer made by Ghazanfar Ali was declined. Complainant Abdul Haq challenged the order in respect of granting bail before the Shariat Court while Ghazanfar Ali applied to the Shariat Court for being granted bail. The Shariat Court by its order under appeal affirmed the order granting bail to Aftab Hussain and Mahboob Hussain, and also ordered that Ghazanfar All be released on bail on usual conditions of furnishing bail bond etc.
4. So far as Aftab Hussain and Mahboob Hussain are concerned it does not seem to be seriously contested so far that they were in judicial lock-up in Mirpur at the time of incident. They were granted bail, inter alia, on that ground. It is also claimed by Ghazanfar All that he too had been arrested at Mandi Bahah-ud-Din and was in judicial lock-up from 7th February to 14th February and therefore was wrongly named as the assailant in the incident which took place on 10th of February. The order granting bail to him also appears to be mainly based on the ground of alibi.
5. We have heard Ch. Muhammad Taj, the learned counsel for complainant Abdul Haq, who is the appellant before us, as well as the learned counsel for the respondents, Kh. All Muhammad. We have gone through the order of the Shariat Court with the assistance of the learned counsel. Both the learned counsel addressed arguments in support and opposition of the issue in hand at some length. It is contended by Ch. Muhammad Taj that the learned Judge in the Shariat Court has embarked on a detailed examination of the merits or otherwise of the evidence which the prosecution proposes to adduce in the case and has given undue weight to the plea of alibi raised by Ghazanfar Ali. He submitted that the fact that all the three accused persons were under detention, as claimed, at the time of occurrence is itself an intriguing development which needs to be noticed in the case because all of them were arrested in bailable cases under the Arms Act and it seems clear that this was done to create an alibi. He contended that in fact the person who was actually confined in custody at Mandi Bahah-ud-Din was not Ghazanfar Ali accused but some other person who had been planted to personate as Ghazanfar Ali to create alibi. Kh. Ali Muhammad, the learned counsel for the accused persons, submitted that the conclusions drawn by the learned Judge Shariat Court were unexceptionable and, in any case, the discretion exercised by the learned Judge does not show any arbitrariness with the result that this Court should not like to interfere in the matter.
6. A perusal of the order of the learned Judge in the Shariat Court shows that the learned Judge analysed the plea of alibi raised by Ghazanfar Ali and noted that full particulars, namely, name, parentage and his residence in Mirpur of the person who was confined at Mandi Bahah-ud-Din were the same as those of accused Ghazanfar Ali. It was also noted that the Assistant Superintendent Jail and Warden stated that they could only state what were the entries in the record but unable to confirm or deny that Ghazanfar All accused was in fact the person who remained in jail from 7th February to 14th February. In para. 12 of the order the learned Judge mentioned that in the Challan filed in the District Criminal Court at Mirpur, Assistant Superintendent Sub-Jail, Mandi Bahah-ud-Din, Warden Riaz Hussain Shah, Constables Mukhtiar Hussain Shah and Shabir Hussain Shah, Muhammad Aslam Assistant Sub-Inspector, belonging to Mandi Bahah-ud- Din Police Station are shown as prosecution witnesses and their statements recorded under section 161, Cr.P.C. contain the assertion that Ghazanfar Ali accused in the case who had been taken to Mandi Bahah-ud-Din in connection with the plea of alibi was not the same person who was arrested and sent to the judicial lock-up at Mandi Bahah-ud-Din. After taking into account all these factors the learned Judge proceeded to record the following observations:-- "13. ......The question that naturally arises and remains yet to be determined is as to whether this accused Ghazanfar All in the instant case in fact was arrested on 6-2-1991 by Mandi Bahah-ud-Din Police and thereafter remained in the judicial lock-up in sub-jail Mandi Bahah-ud-Din from 7-2- 1991 to 14-2-1991 as is shown in the police record and sub-jail record Mandi Bahah-ud-Din. This obviously is to be inquired into and determined by the trial Court.
14. Taking the tentative view of the facts available on record I feel satisfied that a case for allowing bail to the accused-appellant Ghazanfar Ali appears to have been made out. The point, on careful consideration, is found to have not been attended to by the trial Court in its correct perspective while deciding the bail petition moved by the accused-appellant.
15. For the afore-stated reasons, I feel inclined to accept the appeal. Accused-appellant Ghazanfar All shall be released, if not required in any other case or for any other offence, on bail on furnishing bail bond in the sum of Rs,3,00,000 with two sureties severally responsible in the same amount to the satisfaction of any Magistrate First Class Mirpur on the condition that he surrenders his International Passport British/Pakistani to this Court."
7. The observations quoted above show that the learned Judge expressed the view that whether or not the person who was in sub-jail Mandi Bahah-udDin at the date of occurrence was in fact Ghazanfar All accused was to be determined by the trial Court. However, after making this observation in para.14, the learned Judge reached the conclusion that on the tentative view of the facts available on the record he was satisfied that a case for bail had been made out. In our considered view the conclusion drawn by the learned. Judge is not sustainable in law. It is now well-settled rule which has been stated by the learned Judge himself in the order under appeal that a tentative assessm ent of the prosecution evidence can be made but the conclusion drawn by the learned Judge does not seem to be in accordance with this principle. The prosecution is producing three witnesses who are, as appears from the record, State functionaries responsible for arresting and subsequently detaining the person under reference at Mandi Bahah-ud-Din. They have stated in their Police statements that the person who had been with them was not Ghazanfar Ali, the respondent before us. In other words the prosecution has evidence to prove that it was a clever device on the part of Ghazanfar All to have some person personated for him to create an alibi. The accused person is named in the F.I.R. There is no question of any mistaken identity because the complainant and the accused are first cousins inter se. It is no doubt that the incident took place at 6-30 a.m. and the sun rose at 6-49 a.m. on the day of occurrence, as has been highlighted on behalf of respondent Ghazanfar Ali, but that does not mean that there was darkness at 6-30 a.m. This is so even if it was raining at the relevant time. The broad principle is that bail is refused in murder cases if the material on the record tends to connect the accused person with the offence. Another test which has been laid down by the superior Courts while dealing with bail matters in cases in which death or life imprisonment is the prescribed sentence is that an accused would not be granted bail if the prosecution evidence, if left unrebutted, would prove the charge.
We have already indicated the material which is available on the record on which the prosecution relies. In our view to enlarge Ghazanfar All in presence of this material would only be possible if we tentatively declare that this material is not enough to connect the accused with the offence. In our considered view there is no such situation in the case. The plea of alibi is yet to be gone into by the trial Court, as has been pointed out by the learned Judge of the Shariat Court himself, and we would rather leave this function to be performed by the trial Court which initially rejected the application for bail moved by Ghazanfar Ali accused.
8. So far as the other accused persons are concerned their alibi tentatively has some force because there is nothing in the prosecution case to show that they were not in fact in confinement at the relevant time. Apart from that they are not charged with direct participation in the crime.
They were released by the trial Court and that order was affirmed by the learned Judge in the Shariat Court. This factor also goes in favour of the two accused persons. We, therefore, find no grounds for interference in so far as these two accused Aftab Hussain and Mahboob Hussain are concerned.
The upshot of the aforementioned analysis is that by setting aside the order passed by the Shariat Court granting bail to Ghazanfar All we cancel his bail bonds. It is stated that he has already been arrested in connection with another murder case and is confined in the judicial lock-up. If not, he shall be taken in custody at once. He will be detained in judicial lock-up till the completion of the case against him.