1. ' ANWAR ZAHEER JAMALI, J.--- This is an application under section 497, Cr.P.C. Moved by the applicant Ghulam Akbar, who is facing trial in S.C. No,20 of 1998, arising out of Crime No,37 of 1998, Police Station Khanpur, for offence under sections 302, 324, 148, 149 and 114, P.P.C. Before the Court of Vth Additional Sessions Judge, Shikarpur.
2. ' According to the prosecution story on 23-4-1998 at 14-10 hours one Arab son of Abdul Rahman Pahore lodged complaint at Police Station Khanpur stating therein that he is office-bearer of P.S.O.
3. All Pakistan Tanker Association, Khairpur. On the same day when he alongwith Abdul Rahim, Ghulam Qadir, Amanullah, Manzoor Ahmed, Esso, Abdul Jabbar, Shandad and Abdul Qayoom all by caste Pahore was sitting in front of the hotel of Amanullah at the gate of P.S.O. For keeping guard over the oil tankers and issuing slips, at about 12-45 hours, Ghulam Akbar, Anwar, Malho, Ayub, Ghulam Nabi and Sher Muhammad all armed with kalashnikovs, Mithal, Sardar, Ghulam Muhammad and Paryal armed with hatchets and Allah Bux empty-handed reached there and immediately thereafter at the instigation of Allah Bux to kill Ghulam Qadir and others, Ghulam Akber fired with his kalashnikov at Ghulam Qadir which hit him on his flank and he fell down.
4. Accused Anwar and Ayub fired with kalashnikovs at Amanullah which hit him on his forehead and other parts of the body and he also fell down. Accused Malho fired with kalashnikov at Abdul Rahim, which hit him. Accused Ghulam Nabi fired with kalashnikov at Manzoor, which hit him and he fell down. Accused Sher Muhammad fired with kalashnikov at Esso, who fell down. Accused Mithal, Sardar, Ghulam Muhammad and Parial gave sharp and blunt side hatchet blows to Abdul Jabbar, Shandad and Qayoom on their bodies and they fell down. On the cries of complainant party all the accused persons went away towards their village side alongwith their weapons.
5. Ghulam Qadir on receiving injuries became unconscious on the spot. He was taken to Khanpur Hospital for treatment where he expired.
6. ' During investigation police arrested accused Ghulam Muhammad, Sardar, Mithal, Paryal and Allah Bux and submitted challan before the concerned Court on 12-5-1998 showing the remaining accused as absconders. Subsequently, accused Ayoob was arrested and his supplementary challan was submitted wherein the present applicant and his brother Anwar Ali were shown in Column No,2.
7. ' On 19-5-1998 applicant Ghulam Akbar and his brother Anwar were granted protective bail by the Division Bench of this Court at Sukkur for four days ending on 23-5-1998 on the ground that they wanted to surrender themselves before the trial Court. It appears that initially this case was submitted before the S.T.A. Court, Shikarpur, but subsequently it was transferred to the Court of Vth Additional Sessions Judge, Shikarpur where from thereafter N.B.Ws. Were issued against the applicant. On 13-2-2000 applicant Ghulam Akbar was arrested and since then he is in custody.
8. ' Bail application moved by the applicant before the trial Court was dismissed vide order, dated 23- 2-2000 for the reasons as reproduced hereunder:-- ' "According to F.I.R. The present applicant was armed with kalashnikov and he directly fired at Ghulam Qadir who sustained injury on his lumber region and subsequently expired at Hospital, there is thus, direct allegation against the present applicant of causing fatal shot to Ghulam Qadir deceased. The plea of alibi taken by the applicant that he with his brother Anwar Ali was admitted in a hospital at Karachi on the alleged day of incident, require deeper appreciation which cannot be undertaken at bail stage unless the concerned Medical Officer is examined. It is the duty of the Court to determine the guilt or otherwise of the accused during the trial and not of the police. That the police has no authority to let off the accused on the basis of plea of alibi taken during the course of investigation, but the same is to be left for determination by the Court. It is by now a well- settled principle of law that the Courts are not bound by the ipsi dixit of the police."
9. ' We have heard the arguments of Mr. Abdul Sattar Kazi, learned counsel for the applicant and Mr. Jawed Akhtar, Advocate, for the State. Mr. Sattar Kazi mainly contended that during police investigation plea of alibi taken by the applicant and his brother Anwar that three days prior to the incident they were admitted in a hospital at Karachi and on the date of incident also they were hospitalized was believed by police and on that basis names of applicant and his brother Anwar were placed in column 2 of the supplementary challan. For this reason case of the applicant is of two versions, which needs further enquiry entitling the applicant for the concession of bail at this stage. Learned counsel further contended that the applicant is already in custody for more than one year and there is no likelihood of any progress in the case before the trial Court in near future.
10. In support of his plea of alibi learned counsel placed his reliance on the following cases:--
(1) 1970 SCM R 299, (2) 1982 SCM R 440, (3) 1984 SCM R 429 and (4) 1997 SCM R 1829.
11. ' On the other hand, Mr. Jawed Akhtar, strongly opposed this bail application and contended that at bail stage only a tentative assessm ent of material available before the Court is to be made. The plea of alibi raised by the applicant is based on record, which is easily manageable and in any case same is still to stand the test of scrutiny on the basis of evidence to be recorded during the trial of the case. Learned counsel referring to the police investigation contended that in the original challan applicant was shown as absconder, however, after grant of protective bail from the Honourable High Court on 19-5-1998 which was obtained by him on the pretext that he wanted to surrender himself before the trial Court he managed placement of his name in Column 2 of the supplementary challan. Learned State Counsel further contended that all the prosecution witnesses including injured Manzoor Ahmed, Amanullah, Esso, Abdul Rahim and Shahzad in their 161, Cr.P.C. Statements have supported the prosecution case and fully implicated the applicant in the commission of crime. The case against the applicant is that at the time of occurrence he was armed with kalashnikov and directly fired at Ghulam Qadir who sustained injury and later on succumbed to such injury in the hospital. F.I.R. Of such incident was promptly lodged at the police station, thus, the question of false implication of the applicant also does not arise. Learned State Counsel placed reliance on following cases.
(1) 1977 SCM R 27, (2) PLD 1974 SC 83, (3) 1984 SCM R 221, (4) 1996 SCM R 931, (5) 1985 SCM R 1314, (6)
12. PLD 1998 SC 97 and (7) 1988 SCM R 1428.
13. ' We have carefully considered the arguments advanced by the learned counsel and examined the relevant record. Admittedly, according to the allegations contained in the F.I.R. Applicant is one of the accused who was present at the place of occurrence duly armed with kalashnikov and at the instigation of Allah Bux directly fired with his kalashnikov at Ghulam Qadir, which hit him on his lumber region, he became unconscious on the spot and later on expired in the hospital. Thus, specific role of causing death of deceased Ghulam Qadir has been attributed to the applicant in a F.I.R. Which was promptly lodged at the police station within less than one hour and thirty minutes of the incident though the distance of Police Station Khairpur from the place of occurrence is 11/12 kilometers. All the prosecution witnesses, including five injured, whose presence at the place of occurrence cannot be doubted at this stage, in their 161, Cr.P.C. Statements have fully supported the prosecution case. Thus, at this stage all this material available with the prosecution, showing full involvement of the applicant in the commission of the crime cannot be brushed aside or overlooked on the plea of alibi based on some record of hospital at Karachi, showing provisional diagnosis about the nature of ailment of applicant as gastro-enteritis (Food Poisoning). To avoid any prejudice to the case of applicant we would refrain from making any comment on the plea of alibi taken by the applicant, as such plea is still to stand the test of scrutiny during the trial of the case and any attempt to assess the authenticity or otherwise of this plea will require deeper appreciation of evidence which is not permissible at this stage. As rightly pointed out by the learned State Counsel Courts are not bound by the ipsi dixit of the police, and therefore, mere fact that name of applicant was shown in Column No,2 of the supplementary challan, though he was shown as absconder in the original challan, will not, ipso facto, make it a case of two versions or further enquiry.
14. ' As regards to the cases referred by the learned counsel, it may be observed that view taken in these cases is based on different premises and thus, not applicable to the present case. In this context it may also be mentioned that in criminal cases even for the purpose of bail, no universal rule of application can be deduced from the decision of any particular case which can be pressed into service in each case. The facts and circumstances of each case, when taken into consideration, will lead to a just conclusion as to whether an accused is entitled for the concession of bail/relief claimed in that case or not. To fortify this view case of Nazar Muhammad v. The State and another PLD 1978 SC 236 and Safdar Abbas and 2 others v. The State PLD 1987 SC 467 may advantageously be referred here.
15. For the foregoing reasons we find no merits in the bail application, which is accordingly dismissed.