JUDGMENTJAVED IQBAL, J. An applicant under Section 497 (5) Cr.P.C, for cancellation of bail has been moved on behalf of Mst. Zulekha widow of Ghulam Mohammad, against the impugned order dated 28.5.1994.
2. Briefly stated the facts of the case are that on the night intervening 2/3 May, 1994, the respondent Abdul Samad along with a group of person, armed with fire-arms/weapons trespassed the house of Mst. Zulekha and injured grievously one Allauddin son of Mrf.Zulekha and also caused serious injuries to her. They also kidnapped the minor girl Mst. Shazia, who is yet to be recovered who is a student of 8th class. A report un consequently got lodged at Police Station Sariab Quetta, under Section 342/3(55/458/147/148/149/ and 337-D and LPJP.C. Bail was granted to accused/respondent Abdul Samad by learned Additional Sessions Judge-I, Quetta, on the pretext that the matter falls within the ambit of further enquiry, as the prosecution could not file any document to rebut the plea of alibi as taken by the accused/respondent.
3. It is mainly'contended by Mr. Muhammad Aslam Chishti Advocate, on behalf of the applicant that sufficient incriminating material.Js available to connect the accused/respondent with the commission of alleged heinous offences and as such there was no lawful justification to enlarge him on bail It is next contended that the matter does not fall within the ambit of further enquiry as the accused/ respondent was seen at Quetta when the alleged offence occurred It is also argued that plea of alibi can be taken dining bail stage, but it is incumbent for the trial court to examine all the surrounding circumstances'and available incriminating material before any opinion is formed regarding the genuineness of the plea of alibi. It is further pointed out that being Personal Assistant of one Minister various documents have been produced to substantiate the plea of alibi and authenticity whereof is yet to be determined which can be done on the basis of evidence which is yet to be adduced.
4. Mr. Ehsan-ul-Haq Advocate appeared on behalf of accused/respondent and argued emphatically that the impugned order being free from any grave irregularity or illegality may be kept intact, as it does not call for any interference. It is next contended that it is a matrimonial dispute and in order to pressurize the accused/respondent a false and concocted case has been registered against him. It is also argued that keeping in view the tour programme of the Minister concerned no further evidence is required to prove that the accused/respondent was not at Quetta, at the time of the commission of alleged offence.
5. Before the pronouncement of order a few other documents were also submitted including a certificate issued by Assistant Commissioner, Turbat, along with two affidavits filed by Akbar and Muhammad Sale, showing that the accused/respondent remained away on official tour with the Minister and stayed at Cirdt House Turbat, with effect from 25th April to 2nd May, 1994.
6. Mr. Salahuddin Mengal learned Assistant Advocate General appeared on behalf of State and strenuously opposed this bail application, on the ground that sufficient incriminating material is available and more so, the accused/respondent was specifically nominated. He also invited the attention of this Court towards the grave injuries duly supported by Medical Certificate and allegedly caused by the accused/respondent. He further pointed out that a minor- girl was kidnapped which is yet to be recovered and as such there was no occasion to enlarge the accused/respondent on bail.
7. I have carefully examined the above adduced contentions in the light of relevant Provisions of law and available record. I have minutely perused the documents submitted on behalf of the accused/respondent to substantiate the plea of alibi.It is worth mentioning that perusal of record is suggestive of the fact that sufficient incrimination material is available against the accused/respondent to connect him with the commission of alleged offence. The statements of Saeed Ahmed and Bashir Ahmed are worth consideration who have seen the accused/respondent at Quetta on 2.5.94 in a Suzuki Jeep. It is to be noted that Bashir Ahmed has also mentioned the name of the driver by whom the Jeep was being driven. He has also mentioned the number of Suzuki Jeep. Besides, Allauddin and Haji Muhammad Hanif have implicated the accused/respondent in the commission of alleged offence. A Prima facie case is made out which is that of a heinous nature. The peculiar feature of the alleged occurrence is that a minor girl was kidnapped who is yet to be recovered. This alarming aspect of the matter cannot be ignored. In so far as the plea of 'alibi1 is concerned that can only be considered by the trial Court on the basis of evidence to be adduced to substantiate the same. Where a prima facie case is made out and sufficient incriminating material is available to connect the accused with the commission of alleged offence, in my view the plea of alibi alone cannot be considered on prefrential basis to grant bail by ignoring the rest of the evidence without rhyme and reason. It can, however, be considered if sufficient material is lacking to constitute a prima facie case. The affidavit to be filed by the Minister as submitted by Mr. Ehsan-ul-Haq Advocate can hardly being any substantial change as the evidence which has come on record prima facie connects the accused/respondents with the commission of alleged offence. The Minister if so desired may appear in the witness. Box during trial to support the plea of alibi but at this stage no importance can be given to this aspect of the matter. It would be too pre-mature at this stage to give a definite or positive finding regarding the plea of alibi as it would amount to a 'pre-judgement' on the vital question which probably would be the main defence plea. The plea of alibi is to be examined thoroughly at trial and not bail stage. In this regard I am fortified by the dictum laid down in PXJ.
(S.C.) 40.
8. I am conscious of the fact that once a person is released on bail a valuable right accrues in his favour and ordinarily such concession should not be withdrawn but before granting such concession, It must be seen whether it is in accordance with the principles of law settled by now and where a prima facie case is made ou( and nature of accusation is also hdnous one, this concession is to be with-held. It is worth mentioning that it transpires from the record and as mentioned above that sufficient incriminating material is available against the accused/respondent to whom a specific role has been assigned. The offences alleged to have been committed are serious in nature and also falls within the prohibitory clause of Section 497 Cr.
P.C. As such in my view accused/respondent does not deserve the concession of bail.
9. No regid rule is available regarding the period whereafter the bail should not be cancelled.
Keeping in view that has been stated above, sufficient incriminating material, connecting the accused/respondent with the commission of alleged offences, nature of accusation and severity of punishment I am inclined to cancel the bail granted in favour of the accused/respondent.
These are the reasons for my short order announced this morning.