' The petitioner (Misal Khan), along with others stands charged for having killed Nawab Khan vide F.I.R. No,399 lodged- in Police Station, Umarzai, District Charsadda, on 23-8-1995 at 16-50 hours, registered under section 302/34, P.P.C. It may be mentioned that originally the F.I.R. Was registered under section 324/34, P.P.C. By Nawab Gul deceased, then injured. Since Nawab Gul succumbed to his injuries, therefore, the section of law in the F.I.R. Was changed from 324, P.P.C. To 302, P.P.C.
2. After his arrest the petitioner moved the Judge, Special Court, Charsadda and prayed for bail but failed. Hence this petition.
3. Mr. Munir Khan, Advocate for the petitioner, Mr. Sahibzada Khan, Additional Advocate-General for the State and Mr. Bashir Ahmad Khan, Advocate for the complainant party present and heard. I have gone through the record of the case carefully.
4. The learned counsel for the petitioner did not argue the bail petition on merit and raised only one issue. According to him the petitioner was, at the time of the occurrence, on duty at Peshawar at Qila Balahisar, where Headquarter of the Frontier Corps is situated. He submitted that in this respect the following two certificates, one issued by Colonel Arshad Zaman and the other issued by Major Muhammad Akram Khan on 6-2-1996 and 29-2-1996 respectively confirmed that the petitioner (Number 6020 Naik Misal Khan) was neither granted leave nor the out pass on 23-8-1995 and that he had remained present on duty at the Frontier Corps, Headquarter, situated in Qila Balahisar, Peshawar, from morning till evening with the necessary implication that he could not be present at the place of occurrence i,e,, within the jurisdiction of Police Station Umarzai, District Charsadda. For the sake of convenience both the certificates are reproduced as under:--
(1) CERTIFICATE Certified that Number 6020 Naik Misal Khan was not granted outpass or leave on 23rd August, 1995 and he remained present on duty at Headquarters Frontier Corps N.-W.F.P. Qila Balahisar, Peshawar on the same day.
' Station: Peshawar.
' 'Dated: 6th February, 1996.
(Sd.)Colonel For Inspector-General Frontier Corps (Arshad Zaman)
(2) CERTIFICATE Certified that Number 6020 Naik Misal Khan was not granted outpass or leave on 23rd August, 1995 and he remained present on duty at Headquarters Frontier Corps N.-W.F.P. Qila Balahisar, Peshawar from morning till evening on 23rd August, 1995.
' Station: Peshawar.
' Dated: 29th February, 1996.
(Sd.)Major for Inspector-General Frontier Corps (Muhammad Akram Khan).
5. The petitioner's counsel, therefore, contended that reasonable grounds do not exist for believing that the petitioner is connected with the commission of offence with which he has been charged and, therefore, his case is that of further inquiry and he is entitled to bail not as a matter of grace but as a matter of right.
6. On the other hand, the learned counsel for the State Mr. Sahibzada Khan, Additional Advocate- General submitted at the Bar that the petitioner has been named in the promptly lodged F.I.R. And has been assigned a specific role, therefore, in the circumstances, his bail petition was rightly rejected by the Judge, Special Court, Charsadda and that it was not the function of the High Court to accept his alibi at this stage which should be left for the decision of the trial Court. In support of his contention, the learned Additional Advocate General, placed reliance on Iqbalur Rehman v. The State PLD 1974 SC 83.
7. It may be stated at the very outset that it has probably escaped the notice of the learned Additional Advocate-General/Mr. Bashir Ahmad Khan, Advocate, learned counsel for the complainant party that in case Ch. Muhammad Shafi v. Ch. Muhammad Anwar Samma and another 1975 SCM R 219, a Full Bench of Honorable Supreme Court of Pakistan consisting of his Lordship Mr. Justice Yaqub Ali, Mr. Justice Salahuddin Ahmad and Mr. Justice Anwarul Haq, had considered the effect of plea of alibi for the purposes of bail and had come to the conclusion that the decision reported in PLD 1974 SC 83 does not spell out an absolute bar in the matter. It may be mentioned that in that case Ch. Muhammad Anwar Samma, M.P.A. Along with others was charged for having committed an offence punishable under section 148/302/436, P.P.C. Read with section 149 thereof, in connection with the double murder committed on 21-10-1974. On the basis of affidavits submitted by as many as 24 Members of Provincial Assembly, to the effect that the petitioner Ch. Muhammad Anwar Samma, M.P.A. Attended the entire proceedings of the Provincial Assembly at Lahore at that day/date from 4-30 p.m. To 6-30 p.m. And that, therefore, it was not possible for him to be present at the place of occurrence which was situated within the jurisdiction of Police Station, Sadar, Gujrat, the learned Judge of the Lahore High Court was of the view that though the plea of alibi can only be ascertained at the time of inquiry/trial yet the same could be brushed aside for the purposes of bail. He accordingly admitted the said M.P.A. To bail. The order of learned Judge of the Lahore High Court was challenged before the Honorable Supreme Court of Pakistan on the ground that it was against the dictum laid down in case Iqbalur Rehman v. The State PLD 1974 SC 83. After hearing the learned counsel for the parties and going through the record of the case the Full Bench of the Honorable Supreme Court of Pakistan came to the following conclusion:--
(b) Criminal Procedure Code (V of 1898)--- ----S. 497(2)---Bail---Alibi, plea of---Affidavits of as many as 24 members of Provincial Assembly implying impossibility .)I accused's presence at scene of occurrence at given time---Accused':, plea, in circumstances, held, would require consideration at proper time a d ease on requiring further inquiry under S.497(2)---High Court's oil' err admitting accused to bail not interfered with in peculiar ch.. Instances of case---Petitioner, however, could renew application for cancellation of bail when evidence implicating accused brought on record."
8. Beside this it was held in case Akram Khan v. The State and another 1978 SCM R 242 as under:-- "S. 498 Alibi, plea of---Bail---Plea of alibi to be dealt with on its own merits---Not possible to lay down a rule of thumb to be followed in all cases of pleas of alibi---High Court while granting bail taking into account a certificate issued to accused (Employee of Defense Forces) from his unit as well as Unit Registrar stating his presence on duty at another station at time of occurrence---Order of High Court being neither unreasonable nor perverse and passed in exercise of proper discretion, held, not open to interference."
9. It may be mentioned, with advantage, that the facts of the case mentioned above are on all four as far as the ease in hand is concerned.
10. In the case before me two certificates have been issued to the petitioner, one by a Colonel and the other by a Major of the Frontier Corps showing that a. The time of occurrence the petitioner was present on duty at the Headquarter o' the Frontier Corps situated in Qila Balahisar. At this stage I would not like to make any comment regarding the genuineness of the Certificates in question but in my humble opinion the case of the petitioner would appear to fall within the scope of subsection
(2) of section 497, Cr.P.C. i,e,, that his case require further A inquiry in view of the certificates filed by him. In the circumstances, it would not only be proper but would be just to release him on bail. The petitioner is accordingly admitted to bail and shall be released forthwith, if not required ,1 any other case, provided he furnishes bail bonds in the sum of Rs, one lac with two sureties, each in the like amount, to the satisfaction of Judge, Special Court, Charsadda.
11. The Judge, .Special Court, Charsadda is directed to see that the sureties are respectable persons of the locality and are men of means having sufficient property in their names. The Judge, Special Court is further directed to obtain property documents/photo copies of the identity cards of the sureties and place the same on record.