' TARIQ PARVEZ, J.---The crime was reported on 1-8-1999 by Naved Ahmad in the Emergency Room of Liaquat Memorial Hospital, Kohat where he had charged the accused-respondent Shahid Hamid Qureshi (recorded in the F.I.R. As Shahid Mahmood) for committing the murder of Hafiz Jamil Ahmad and causing fire-arm injuries to Shabir Ahmad who, however, later on died. Besides the respondent three other persons were charged for actively participating in the melee while Mushtaq Ahmad was charged for investigation.
2. The accused-respondent who is a practising lawyer and a member of District Bar Association, Kohat has been granted bail by the learned Judge Special Court, Kohat on 24-1-2000 only on the ground that there is taken plea of alibi by the respondent in support whereof Mr. Saifullth Khan, President of the District Bar-Kohat, Secretary General of the Bar Association and another Advocate have testified by swearing through affidavits that at the time of occurrence the accused- respondent was seen present in a Bakery named 'Fresh Way' owned by the uncle of the respondent and also on the ground that the accused has taken oath on Holy Qur'an to the effect that he is innocent and falsely charged.
3. Learned counsel for the petitioner submits that as the learned Judge Special Court has held and correctly so that there is a strong prima facie case as projected by the prosecution against the accused who is, therefore, not entitled to bail on merits, therefore, he without reference to the case of the prosecution takes exception to the order of granting bail passed on basis of oral plea of alibi which was belatedly taken and is self-contradictory and also that the superior Courts have time and again ruled that in cases of capital charge plea of alibi should not normally be entertained at bail stage as the same is always subject to scrutiny. The learned counsel has in support of his submissions cited the reported judgment in case of Bashiran Bibi v. Nisar Ahmad Khan and others PLD 1990 SC page 83.
4. Learned counsel for the respondent, however, argued that the requirement of law which burdens the accused to substantiate any defence plea including plea of alibi is not that heavy as in case of prosecution and an accused person is only to create reasonable possibility of his plea being true.
Next contention was that bail once granted by Court of competent jurisdiction and being a discretionary order the High Court should not sit in appeal against such order but to interfere only if the ing bail is arbitrary, unreasonable, fanciful and against the facts. It was also contended that the consideration for grant of bail and its cancellation are different.
' Learned counsel for the respondent while making reference to the plea of alibi submitted that the respondent has proved to be in the shop of his uncle which fact has been supported by the statement in shape of affidavits filed by President of the Bar, namely, Saifullah Khan, Imtiaz Shahid, Secretary-General of the Association, Mian Manzoorur Rehman, an advocate of sufficient standing and good reputation and the neighbouring shopkeepers have also deposed as to the presence of the accused-respondent at the time of occurrence in 'Fresh 'Way' Bakery.
5. Learned Additional Advocate-General appearing for the State vehemently supported the cancellation application and submitted that in view of overwhelming prosecution evidence no weight should be given to the oral plea of alibi which is coming out of the mouth of some advocates who are colleagues of the respondent and possibility cannot be excluded that they have sworn affidavits to oblige the accused-respondent and also his father namely, Mushtaq Ahmad Qureshi, senior advocate of the Kohat Bar Association.
6. Before we shall discuss the submissions made by the learned counsel for the parties we cannot escape making reference to the impugned order of the learned Judge Special Court, Kohat dated 24-1-2000. There was no need for even tentative assessment of the evidence of the prosecution much less reaching a conclusion of there being a strong prima facie case when the learned Judge was inclined to entertain and grant bail to the respondent solely on plea of alibi.
7. The occurrence in this case took place on 1-8-1999 where admittedly as per record father of the respondent applied for pre-arrest bail on 5-8-1999 while the respondent on 16-9-1999 and in such application there is no reference as to the nature of alibi that has been set up by the respondent after his pre-arrest bail was de-confirmed when he came up before the Judge Special Court in post-arrest bail, the affidavits original of which are on the record, the stamp papers of all the deponents appear to have been purchased from one stamp vendor on 3-8-1999 and affidavits also attested on 3-8-1999 but these affidavits are not mentioned in the pre-arrest bail application.
As on 19-9-1999 when the respondent moved an application to the Superintendent of Police, Kohat where he has disclosed the names of these deponents who were required to be examined by the police as witnesses to the alibi. There is no dispute to the proposition that accused is entitled to take plea of alibi during the enquiry, investigation or trial but same if taken at the earliest opportunity i,e, immediately after the occurrence and during the investigation when there is less time for fabrication it carries more authenticity than the one belatedly taken. As generally delay in accusation is taken against the prosecution, on the same analogy delay in setting up defence plea and more particularly a plea which is dependent upon the knowledge of the accused is to be taken as soon as possible. The plea in this case that accused-respondent was present in his bakery between 5-30 p.m. To 6-30 p.m. As witnessed by the President of the Bar, its General Secretary and another member of the bar is not only coming out of the mouth of colleagues of the accused but they surfaced on the file after 16-9-1999 after a period of about one and a half months. Likewise the deponents referred to above, the accused-respondent and his father are though from the faternity of the lawyer community and if the investigating agency was reluctant to record the statements of the same witnesses they could have appeared before a Magistrate by volunteering for getting their statements recorded under section 164, Cr.P.C. There is yet another circumstance which cannot be lost sight of that Imtiaz Shahid, Advocate Secretary-General of the Bar makes reference to the visit of Saifullah Khan, President and Mian Manzoorur Rehman, Advocate to the Bakery of the accused- respondent but the said two advocates in their affidavits have not deposed with regard to their inter se presence or that of Imtiaz Shahid. Such deficiency in the alibi set up by the respondent of course shall not affect the testimony of deponents if and when they appear in the witness-box and testified on oath with right of cross-examination to the other side.
8. It appears that the learned Judge Special Court being posted at the station to which the deponents Advocates, the accused party are practising lawyers and it was under the personal opinion of the learned Judge with regard to the straightforwardness of Mr.Saifullah Khan, President of the Bar that led to the passing of the impugned order.
The evidentiary value of taking oath by the accused or other party in criminal proceedings has been held to be not legal in view of Article 163 of 'Qanun-e-Shahadat' as ruled by the august Supreme Court of Pakistan in PLD 1990 SC page 83.
9. No doubt, that consideration for grant of bail and its cancellation are different but viewed in the light of direct charge for double murder and where proceedings under section 204, Cr.P.C. Were completed and only thereafter plea of alibi was taken up which too is of the nature as discussed above we do not find ourselves to agree with the finding of the Judge Special Court.
' The result would be that the order impugned dated 24-1-2000 is re-called. The accused- respondent who is present in Court has been taken into custody by the police. The police is directed to produce the accused before the learned trial Judge on 1-7-2000. The expeditious disposal of the case is right of an accused person, therefore, direction is hereby given to the learned trial Judge to expedite the sending up of the case and shall conclude the trial in the shortest possible time preferably within six months. These are the reasons for our short order of even date.
Bail cancelled.