' Accused Abdul Latif, Peer Muhammad and Afsar Khan, respondents in Criminal Miscellaneous No,369 of 2002 and accused Karnal alias Kar Khan, respondent in Criminal Miscellaneous No,370 of 2002, are directly charged by Jan Muhammad, complainant/petitioner, for the murder of his brother Khiyal Muhammad as well as also inflicting fire-arms injuries on his person. The complainant reported the matter to the Police in DHQ Hospital, Nowshera in injured condition, on the basis of which case F.I.R. No, 1094 dated 21-12-2001 under sections 302/324/34, P.P.C. Was lodged in Police Station Akora Khattak against the accused/respondents. Womenfolk dispute and non-availability of transport were disclosed to be the reasons of motive and delay in lodging of the report respectively.
2. Accused/respondents Abdul Latif, Peer Muhammad and Afsar Khan succeeded in getting the concession of bail from the Court of learned Sessions Judge, Nowshera vide order, dated 21-2-2002 mainly on the ground of delay in lodging the report and plea of alibi raised in the case. The pre- arrest ed to accused/respondent Karnal was also confirmed by the learned Sessions Judge, Nowshera vide order, dated 4-3-2002 on the same grounds, against which the complainant/petitioner has filed the instant applications for their cancellation of bail. Both the applications, due to similarity of facts, are being decided through this single order in Criminal Miscellaneous No,369 of 2002.
3. So far as merits of the case are concerned, the accused/respondents are directly, chargcd for the commission of the offence. The occurrence has taken place in a broad daylight. Bloodstained earth has been recovered from the spot. The medical evidence supports the version of the complainant. The complainant himself has received serious nature of fire-arm injuries on his person. Existence of enmity between the parties is admitted. Hence the above facts obviously suggests the existence of a prima facie case against the respondents at this stage.
4. The learned Sessions Judge in his impugned orders has given much preference to the delay in lodging of the F.I.R. And the plea of alibi. An explanation has been given in the report by the complainant that due to non-availability of transport, he was not in a position to report the matter to the police promptly. Without prejudice to the merits of the case on either side, it may he mentioned that the complainant himself was seriously injured and any unnecessary delay could have proved danger to his life, therefore, the explanation offered in the F.I.R. Could not be termed adverse unless evidence is recorded in the case.
5. The material so far collected on record indicates that on the applications of an Ex-MNA of Nowshera and some other persons including a 'Pesh Imam' of the mosque about the presence, of the accused/respondents in the Juma congregation prayers in the village, the police recorded statements of about 41/42 persons, ;thereafter two of them sworn affidavits before the Court and on the date of hearing a number of people had gathered outside the Court, which heavily influenced the mind of the learned Sessions Judge about the genuineness of the plea of alibi, as against the well-established principle of law laid down by the superior Courts in a number of authorities that the plea of alibi taken by an accused cannot be evaluated at bail stage. The august Supreme Court of Pakistan in the case of Waqar-ul-Haq v. The State (1985 SCM R 974) has laid down as under:-- "The learned counsel for the petitioner vehemently argued that as many as 96 notables had verified to the innocence of the petitioner. And not only this, the case was investigated as many as four times by independent officers and once also by an Assistant Superintendent of Police and all such investigations declared him to be innocent ..As for. the plea of alibi, it cannot be judged at this juncture in the face of the prima facie material to show that he had fired the shots. In this view of the matter, the opinions of the Investigating Officer as to his innocence are not of any value, ' The plea of alibi in this case, not raised personally by the accused, but raised on their behalf by some persons including political personalities of the area, smashed some political rivalry behind tt and the learned Sessions Judge was, therefore, required not to have influenced his mind with such kind of plea and should have left the same for determination of the trial Court, where the accused would be having full opportunity of producing evidence in defence, in whatever degree they wish to adduce.
6. The impugned orders of the learned Sessions Judge, are therefore, not in accordance with the principles laid down for grant of pre-arrest bail as well as post-arrest bail to an accused person in suchlike offences, hence the same requires interference by this Court.
7. Accordingly, the applications are accepted, the ing orders of the learned Sessions Judge, Nowshera are hereby recalled and the accused/respondents who are present in Court, are taken into custody and sent to the Judicial Lock-up as undertrial prisoners.
Bail cancelled.