' SHAH ZAD AKBAR KHAN, J.---The petitioner, Jalauddin, has filed this application seeking his release on bail in case, F.I.R. No,93, dated 13-5-1999 under section 302/324/148/149, P.P.C. Of Police Station Pezu, District Lakki Marwat, as his similar application has been rejected by the learned Special Judge Lakki, vide his order, date 13-9-1999.
2. The synoptical version of the prosecution divulged by the complainant in the F.I.R. Is that on the eventful day he alongwith his brothers Atal Khan, Shandiullah and Asmatullah were going to Pezu in their Motor Car No,1893-B-D.I.K. Being driven by Atal Khan. At about 6-50 a.m. When they reached near the 'Bund of Zard Ali' on Pezu-Tank Road, in the meanwhile accused Ghani-ur-Rehman, Gul Muhammad and Mirza Ali Khan duly armed with Kalashnikovs appeared from the shrubs and started firing at them but they escaped. However, the motor car was hit on various points and was punctured. In the meanwhile accused Khurasan, Jalaluddin (petitioner) and Jamaluddin also appeared from the shrubs and fired at them with their respective kalashnikovs. This firing resulted into the death of Atal Khan, brother of the complainant, while the complainant received injuries on his shoulder. The accused decamped after the occurrence. The motive behind the occurrence was stated to be a dispute over Oil-Tanker No,4607/LSB.
3. Mr. Dost Muhammad Khan, Advocate, appearing on behalf of the petitioner, has contended that the instant case is false and pleaded innocence of the petitioner, on the ground that at the time of occurrence, the petitioner was staying in Karachi and had sustained fracture in his leg, which was resultantly plastured on 11-5-1999, whereas the occurrence has taken place on 13-5-1999. 'the mainstay of the arguments of the learned counsel is the plea of alibi and in its support he has appended with the application a certificate from a private hospital called Dar-ul-Shifa Hospital and Maternity Home, Karachi and another certificate from the Marwat Hospital and Metrernity Home, Karachi alongwith some prescription slips, dated 13-5-1999 and a discharge slip from the District Headquarters Hospital, Lakki Marwat showing' the admission of the petitioner on 29-5-1999 and date of his discharge therefrom as 12-6-1999. The learned counsel has also drawn our attention to a ticket from Shalimar Air-Condition Coach Service in the name of the petitioner issued on 14-5-1999 and on the basis of this document he stated that the case of the petitioner falls within the scope of 1iirther enquiry, as the abovementioned documents pertaining to the plea of alibi are of such a nature which cannot be ignored for the purpose of bail.
4. On the other hand, Syed Zafar Abbas Zaidi, Advocate, representing the complainant, has vehemently opposed this bail application and has seriously criticized the above documents. He submitted that the photostat copy of the ticket is patently tainted with doubt, on the ground that the said ticket, in a very unusual manner, bears its counterfoil portion which is supposed to be retained by Issuing Agency and the passenger is 'given only a portion of the ticket which is meant for the passenger only, but the petitioner had produced the ticket alongwith the counterfoil.
Moreover, the signatures affixed at the bottom in the name of Nasrullah Khan are visibly different on the two portions. He also criticized the ticket on the ground that the police has additionally placed on the file the counterfoil portion of the ticket in the name of the petitioner, which shows the same from Karachi to d Ismail Khan. He stated that if the counterfoil is the same, then the word 'Dera' is not available in one of the counterfoil, besides that the two counterfoils visibly differs in its writing inter se and these things clearly show that the tickets have been manipulated by the petitioner. He further submitted that the petitioner had shown himself to be admitted in the hospital and that too a private hospital on 11-5-1999, but the medical prescriptions produced by him are of 13-5-1999 and no prescription of 11-5-1999 is available on the record. He also criticized the certificate purportedly issued by some Doctor of Dar-ul-Shifa Hospital and Maternity Home, Karachi which clearly states that it is not valid for medico-legal purposes and Court, which further is an element casting serious doubt on its veracity. He thus argued that such plea of alibi cannot be taken into consideration for the purpose of releasing the accused/petitioner on bail in a case which normally carries a punishment of death or imprisonment for lift.
5. The learned counsel while advancing his arguments also submitted that this is a broad daylight occurrence and the F.I.R. Was lodged with a reasonable promptitude. The petitioner alongwith his co-accused is directly charged in the F.I.R. The version of the prosecution finds strong support from the medical report and the eye-witness account. Moreover, the complainant was also injured in the same incident. The recovery of 29 empties of 7.62 bore was effected from the points where the presence of accused Khurasan, Jalaluddin (petitioner) and Jamaluddin were allegedly shown in the site plan. Blood-stained earth was also recovered by the Investigating Officer from the venue of occurrence where the deceased Atal Khan was lying. The motor car of the complainant party was found damaged and its front and rare glasses were broken and marks of bullets on various points of the car were present. Thus, according to the learned counsel, the version of the prosecution was not only supported by the ocular testimony, but circumstantial evidence of a very high order and character was available against the petitioner. In these circumstances; the learned counsel vociferously contended, that the plea of alibi bearing the abovementioned weaknesses, is devoid of force to outweigh the evidence of the prosecution.
6. The learned Assistant Advocate-General appearing for the State has also adopted the same arguments advanced by the learned counsel for the complainant.
7. We have heard the rival arguments of both the combatants and minutely scanned the record with their able assistance.
8. It may be observed that in cases where the accused pleads alibi for his release on bail in contrast to the data collected by the prosecution against him, the Court shall tentatively have to assess the intrinsic weight of such plea of alibi, vis-a-vis the material speaking against the accused. The accused shall only be deemed entitled to bail if the plea so raised weakens the evidentiary potency of the prosecution case, and on comparative analysis compels the judicial scale tilt in its favour as a rule of domination and the plea of alibi shall not be peruke to the bald assertion of the accused.
9. We do not want to comment in detail upon the plea of alibi, as doing so is certainly fraught with the danger of prejudicing the case of either side and would leave to the trial Court to determine the evidentiary value of alibi and its ensuing effect upon the case after recording and evaluating the evidence on conclusion of trial. Presently, it is sufficient that the petitioner is directly charged in the promptly lodged F.I.R. The occurrence is of a daylight. The story of the prosecution is also supported by the medical evidence and the eye-witness account. The report is lodged by the complainant who was himself injured in the same incident. The recovery of empties of 7.62 bore and the blood- stained earth from the venue of the occurrence coupled with the firing marks on the car of the complainant party are the visible factors which, prima facie, support the prosecution version and reasonable grounds are existing to connect the petitioner with the commission of the offence. We do not, therefore, feel inclined to release the petitioner on bail at this stage. Consequently, this bail application is rejected. However, since the case has been put in Court, therefore, the learned trial Court is directed to proceed with the case expeditiously.