' The F.I.R. In this case was registered at P.S. Hydri, District Larkana on 19-7-1994 for offences under sections 302, 148, 149, 427, P.P.C. And under section 13-D of the Arms Ordinance. Complainant Moula Bux stated in the F.I.R. That deceased Muhammad Anwar was his son. The age of Muhammad Anwar was about 40/41 years and he owned Mehran Medical Store in Naudero Town. On that date he and his son Anwar Ali and brother-in-law Lutuf and Muhammad Saleem, son of his nephew were going towards Larkana for some work in their red coloured Alto car bearing No,S-9052. The car was driven by Muhammad Saleem and Anwar Ali was on the front seat. The remaining were on back seat. At about 4-30 they reached Dodai Octroi Post and the car had slowed down because of speed breakers. There were five persons present there and their names are:
1. Shaman son of Shadan Pitafi, armed with T.T. Pistol,
2. Shadan son of Muhammad Parayal Pitafi, armed with a gun,
3. Kabul son of Arbab Pitafi, armed with a gun,
4. Hameed son of Qader Pitafi armed with T.T. Pistol and 5. Akbar son of Chakar Pitafi armed with rifle. They were standing on the road and asked them to stop the car. Because the car was not stopped all of them fired at the car, wind screen of the car was smashed, the right side of the car was also damaged and the car went out of control and stopped in the rain water. Due to fear the complainant and others got down from the car. On this accused challenged Anwar All that he will be killed. Anwar Ali entered the abandoned house of Saleh Detho. Accused Shaman and Hameed were following him armed with T.T. Pistols. According to complainant he and others also entered the house. Accused Shadan, Akbar and Kabul asked them not to go near them otherwise they will be killed. Accused Shaman fired directly with his T.T.
Pistol at Anwar Ali which hit him in the chest and accused Hameed also fired with his T.T. Pistol which also hit Anwar Ali in the chest and then all the five accused ran away towards western side from the street. Anwar Ali had two firearm injuries one on the left upper breast side of the chest and the 2nd injury was on left side of the chest below the shoulder. He was bleeding and died". The complainant has further stated in the F.I.R. That his son Anwar Ali had purchased 14 Jarebs of land in the village because of which accused Shadan and others had told Anwar Ali that he had purchased the land in spite of their warnings and therefore, he will not be spared. Because of this the accused persons with common intention directly fired at Anwar Ali and had also caused loss of their car.
' Learned Advocate for applicant request for bail on the grounds that on 19-7-1994 F.I.R. Was lodged for murder of Anwar Ali who was son of complainant. Five persons are named in the F.I.R. Namely Shaman, his father Shadan, Kabul, Hameed and Akbar, Shaman had T.T. Pistol, Shadan had gun, Kabul had gun, Hameed had T.T. Pistol and Akbar had rifle. All these persons are alleged to have fired at the car, but no person was injured and only wind screen was smashed, nobody received any injury. l'he occupants of the car are alleged to have taken shelter in an abandoned house. He submits that in 161 and 164, Cr.P.C. Statements it is consistent story that Shaman had fired at Anwar Ali and thereafter Hameed had also fired with his T.T. Pistol at Anwar Ali. Accused Shaman was arrested and he raised plea of alibi. The challan was submitted on 12-9-1994 in which Shaman has been placed in column No,2. Hameed had also informed Investigating Officer that he was not present in Larkana on the relevant date and time and he produced certificate of Medical Officer to show that he was not available there. The bail application of accused Hameed has been rejected on the ground that affidavit of Medical Officer who had issued the certificate was not filed. The medical officer was not called for statement. There are similar allegations against accused Shaman and Hameed. Both had raised plea of alibi. The plea of accused Shaman has been accepted and on the principle of rule of consistency the plea of alibi raised by the accused Hameed may also be accepted. The benefit of doubt can be given to accused even at bail stage.
He relies on decisions reported in (1) 1980 SCMR 142, (2) 1983 SCMR page 124, (3) PLD 1995 Kar. Page 34, (4) 1990 PCr.LJ page 323, (5) PLD 1978 SC page 1 and 256, and (6) 1986 PCr.LJ page 119. Learned Advocate for applicant further submitted that accused was arrested on 27-8-1994. T.T. Pistol is alleged to have been recovered from him on 6-9-1994 and a separate case has also registered against him.
' Mr. Habib Ahmed, learned State Counsel submitted that police visited the place of Vardat and found two empties of T.T. Pistol and two empties of .12 bore. F.I.R. Is delayed. There are three eye- witnesses namely complainant Moula Bux, P.W. Saleem and P.W. Liaquat Ali. In their 161 and 164, Cr.P.C. Statements they have involved the accused. Accused Shaman was arrested on 7-9-1994 and other accused persons were arrested on 27-8-1994 excepting accused Kabul. There are two fire-arm entry wounds on chest of deceased. There is ocular evidence in this case and motive of the offence has been suggested in the F.I.R. Recovery of weapon has been made from the accused, empties have also been recovered from the Vardat. Certificate issued by the Medical Officer is dated 25-7-1994 which is not reliable because applicant is resident of Larkana and there are many hospitals at Larkana. Certificate itself shows that the marks of identification are mentioned in the certificate and this shows that Medical Officer had gone out of way to favour the applicant/accused. He submits that investigation was fair and the plea of alibi raised by accused Shaman was accepted by Investigating Officer after verification of his plea through reliable investigation. Plea of applicant/accused could have been investigated by police but no such plea was raised during investigation. The rule of consistency will not apply in this case as there was no police enquiry on plea of alibi raised by applicant/accused. Although police accepted such plea of accused Shaman after enquiry. He relies on decisions reported in (1) PLD 1971 SC page 324, (2) PLD 1974 SC page 83, (3) PLD 1994 SC page 133, (4) PLD 1990 SC page 83, (5) 1985 PCr.LJ 538 and (6)
1995 PCr.LJ pages 890 and 1730.
' The Advocates of applicant and State have produced case-law in support of their respective contentions. Each case has its peculiar facts, but the principle laid down in these decisions have to be followed: The facts of this case are peculiar in the sense that in the F.I.R. It is alleged that accused Shaman fired directly with his T.T. Pistol at Anwar ali who received the shot on his chest.
Thereafter it is mentioned that accused Hameed also fired with his T.T. Pistol which hit Anwar Ali in the chest. Accused Shaman was arrested by police and he raised plea of alibi which was examined by Investigating Officer and his plea was accepted. The applicant has also raised the same plea by stating that on the relevant date and time he was admitted in Rural Health Centre Bandhi, District Nawabshah, as an indoor patient from 13-7-1994 to 25-7-1994. Learned Advocate for applicant has relied on decision reported in 1975 SCMR page 151 and 219. In both these cases bail has been granted on plea of alibi, but in decision reported at page 219 it has been ruled that in view of affidavits filed on behalf of respondent, case would fall within the ambit of subsection (2) of section 497 of Code of Criminal Procedure and it becomes a case requiring further enquiry. In decision reported in 1978 SCMR page 242 it has been laid down that the plea of alibi has to be dealt with on its own merits as it would be impossible to lay down a rule of thumb to be followed in all cases. In decision reported in 1990 PCr.LJ page 323 anticipatory bail was granted taking into consideration the facts that the certificate had been issued by Superintendent Jail that accused had visited his prison at the relevant time on date of occurrence. Learned Advocate appearing on behalf of State has relied on decision reported in PLD 1974 SC page 83 wherein it has been ruled that it was for the trial Court to give finding on the truths or otherwise of the plea of alibi. As already stated above each case has its own facts. In the present case two persons are specifically named and assigned part of firing at Anwar Ali. Their names are Shaman and Hameed. The plea of alibi raised by accused Shaman has been accepted by the investigation and he was granted bail. The part assigned to applicant is also same as assigned to accused Shaman. The learned Advocate for applicant has therefore relied on decision reported in 1983 SCMR page 124 on the principle that case of accused is similar to that of is co-accused who has been released on bail. The learned State Counsel has opposed the grant of bail on the ground that the plea of alibi raised by accused Shaman was investigated by police and was found to be correct, but as regards case of applicant/accused Hameed is concerned, he did not appear before the police to prove his alibi.
The fact remains that there is a certificate issued by Dr. Mumtaz Ali Channar, Senior Medical Officer, Rural Health Centre Bandhi, District Nawabshah that Abdul Hameed was under his treatment as an indoor patient from 13-7-1994 to 25-7-1994. The date of incident is 19-7-1994. The complainant has specifically named accused Shaman in the F.I.R. But this statement has not been accepted to be true because plea of alibi raised by accused Shaman has been accepted. It can therefore be inferred that complainant named a person who was not there. In view of this situation the benefit can be given to the accused/applicant who has produced certificate to prove his presence on the relevant time and date at a different place. Bail does not mean acquittal. It will always remain open for trial Court to come to a different conclusion on the basis of evidence recorded during the trial proceedings. But the rule of consistency requires that applicant should be given benefit as allowed to co-accused Shaman although, both are named in the F.I.R. And part has been assigned to them.
One has been released and other i,e, present applicant is detained, All these facts taken together make out a case where further enquiry is required, but it will remain open for the trial Court to come to any conclusion after evidence is recorded in the case. There is a decision of Hon'ble Supreme Court on the point of alibi which is relevant and the said decision is reported in 1993 SCMR
417. The relevant portion in paragraph 23 is as under:- "Defence plea is that appellant Ashiq Hussain did not participate in the incident as he was admitted in the hospital with injuries at the relevant time. Defence plea is supported by C.W.1 Dr. Sajjad Nabi, who claims to have examined Ashiq Hussain in Civil Hospital, Daska on the day of incident at 9-15 p.m."
' The concluding para. Of this paragraph is as under:- "This defence plea even if not proved is sufficient to cast doubt in credibility of the prosecution case, which has already become doubtful for the facts and reasons mentioned above."
Thus on tentative assessm ent it is a case where further enquiry is required as the Medical Officer and his record can be examined during the trial proceedings. In view of case-law and facts mentioned above, I grant bail to the applicant subject to furnishing of surety in the sum of Rs,1,50,000 (rupees one lac and fifty thousand only) and P.R. Bond in the like amount to the satisfaction, of trial Court.