' The petitioner who is involved in a case under section 302/34, P.P.C. Arising out of F.I.R. No,209/94, dated 7-12-1994, registered at Police Station Sadar, Bahawalpur, seeks to be admitted to bail.
2. The relevant facts for the disposal of this petition are that Mst. Azra Atiq, lodged F.I.R. On 7-12-1994 at about 6-30 p.m. Alleging that she attended a telephone call made by one Akhtar Abbasi, a friend of her deceased son Yasir. She accordingly asked her son Muhammad Yasir to attend the call who after talking to said Akhtar Abbasi left the house in his Suzuki that he was going to the house of Akhtar Abbasi. The complainant suspected that Robina Kausar and her would be husband Abdul Ghaffar had called her son through Akhtar Abbasi, who was a friend of her deceased son and one Shahzad. It is alleged that the deceased Yasir used to visit Robina Kausar to which an exception was taken by Abdul Ghaffar. At about 9-00 p.m., the complainant received information that the dead body of her son was lying in the hospital, whereupon she alongwith Qazi Muhammad Shahid and Ch. Abdur Rehman went to the hospital and identified the dead body of her son in the mortuary. She suspected that Abdul Ghaffar in connivance with his friends had killed her son on account of illicit relations with Robina Kausar.
3. It is contended by the learned counsel for the petitioner that the F.I.R. Was lodged after preliminary investigation and in spite of that nobody is shown as eye-witness in the F.I.R. The complainant only mentioned the name of the petitioner as suspect and nobody had witnessed the crime. It was, in fact, a blind murder, later on the police imported two persons, namely, Ahmad Khan and Ch. Khalid Mahmood, whose statements were recorded two days after the incident, though they deposed that they had witnessed the crime. In the presence of this material, the case against the petitioner is one of further inquiry. It is further contended that the petitioner took up the plea of alibi, as is apparent from Annexure "K" that he was in Karachi on 4-12-1994 and remained there till 7-12-1994 at 20-30 hours. In the presence of this material, the case against the petitioner seems to be a fabricated one and the police officials under the influence of the complainant party, who are well-connected persons did not properly investigate the defence plea of the petitioner, which has caused immense injustice to the petitioner. In the circumstances, the petitioner deserves to be released on bail, as his case falls within the admit of subsection (2) of section 497, Cr.P.C.
Placed reliance on PLD 1978 SC 256, 1989 SCMR 2071, PLD 1993 Lah. 500 and 1992 MLD 1607, to contend that even at bail stage, Court can tentatively examine the plea of alibi to find out as to whether plea of alibi is such that prosecution evidence does not lead to inference of guilt against the accused.
4. Learned counsel for the State assisted by the Police Officer submitted that in this case there are two eye-witnesses, namely, Ahmad Khan and Ch. Khalid Mahmood, who were examined on 8-12- 1994 and who specifically deposed that they saw the petitioner committing the murder of the deceased. Even they have given the motor-cycle number as 765/BRE on which the petitioner alongwith Ghaggi Shah came at the spot and fired with revolver on the deceased. In addition to that, the petitioner led to the recovery of revolver on 13-12-1994. The plea of alibi is belated, as the said plea of alibi for the first time was introduced on 30-8-1995, by way of Annexure "K". According to this document the petitioner went to the quarter of A. Karim at P.A.F. Base, Korangi, Karachi and left the said quarter on 7-12-1994 at 20-30 hours. This document was provided to the petitioner on 30-8-1995, but before that the petitioner did not raise any such plea either before the Investigating Officer or brought this fact to the notice of the higher Police Officers, although he was arrested on 10-12-1994. As per assertion of the learned counsel, the petitioner himself is an Advocate. In the circumstances, this belated plea of alibi which was manufactured later on cannot be relied upon.
5. The learned counsel for the complainant submitted that the two eyewitnesses mentioned above, had no animosity with the petitioner. They had gone there for jogging purposes and this place is situated in the Agriculture Research Institute of Bahawalpur and there is sufficient space for jogging. Learned counsel submitted that both the witnesses, though chance witnesses, but have given reasonable and plausible explanation for their presence at the scene of occurrence. No doubt, they were examined on the next date of the occurrence, but one has to see the quality of evidence, as they were respectable persons of Bahawalpur and had no enmity with the petitioner.
Placed reliance on PLD 1991 SC 412, wherein it was held that there would hardly be a case which would not require "further inquiry", therefore, this element by itself was no ground for granting bail under section 497(2), Cr.P.C. The case of "further inquiry" presupposes that there is some evidence which on the tentative assessm ent may create doubt with respect to the implication of the accused. In the present case, the plea of alibi besides being belated one is not being supported by the direct evidence of any independent person. The only document placed on the record is the affidavit of A. Karim, dated 7-11-1995. He has not given any explanation as to why he remained mum for one year, and he being the close relative of the petitioner did not appear before the police during the investigation. The conduct of the petitioner as well as A. Karim leads to this inference that they had manipulated this defence plea with the connivance of the menial staff of the Base.
' In the end, learned counsel submitted that the deceased used to visit Mst. Robina Kausar who was the fiancee of the petitioner, hence the petitioner had a motive to commit the crime.
6. I have heard the learned counsel for the parties at length and have perused the record.
Admittedly, there is no background of enmity between the petitioner and the two eye-witnesses, who have categorically deposed in their statements under section 161, Cr.P.C., that they saw the petitioner causing the death of the deceased by revolver and that he fired two shots. Both the eye- witnesses are C respectable persons of the locality and there is nothing on the record to show that they were motivated to depose falsely against the petitioner in the alleged blind murder case. In the presence of this evidence, prima facie, there exist reasonable grounds to believe that the petitioner is involved in a case which falls within the prohibitory clause. It has been held in PLD 1974 SC 83, that it is the function of the trial Court to ascertain the truth or otherwise of plea of alibi. In the instant case, the petitioner is a Law Graduate and must have known the intricacy of law. He did not take this plea at the earliest opportunity before the Investigating Officer nor brought this fact to the notice of the higher Police Officers. He for the first time raised this plea of alibi after procuring the certificate dated 30-8-1995, showing his stay at Karachi from 4-12-1994 to 7-12-1994 till 20-30 hours. The petitioner or for that matter, his relative A. Karim did not care to get Mahmood Ahmad, Warrant Officer examined by the police along with the relevant record. However, in the presence of the direct evidence with regard to the involvement of the petitioner in the case, it would be the job of the trial Court to ascertain the truth or otherwise of plea of alibi of the petitioner at the appropriate time. This Court while deciding bail application cannot go deeper into the evidence so as to give a definite finding with regard to the plea of alibi. However, those pleas of alibi can be taken into consideration at the time of decision of bail application, which are floating on the record and need no deeper appreciation. The instant plea does not fall in this category. Resultantly, this petition is dismissed.