' Petitioners (1) Asmatullah and (2) Abdul Malik are seeking bail in case F.I.R. No,106, dated 2-8-2003 registered by P.S. Ghazni Khel, District Lakki Marwat for offences under section 302/34, P.P.C.
2. Both the petitioners were refused bail at the initial stage of investigations by the learned lower Courts as well as by this Court on 17-11-2003. The previous bail petition was heard by Honourable Mr. Justice Ihsanullah Qureshi, J. But because of his unavailability on the Bench this second bail petition has been listed with the approval of Honourable Chief Justice in accordance with the latest view of the Honourable Supreme Court in the case of "The State v. Zubair" 2002 SCMR 171.
' Arguments heard and record perused.
2-A. Mujeeb-ur-Rehman, the complainant, reported the incident to Police Station Ghazni Khel on 22-8-2003 at 1030 hours wherein he alleged that on the eventful day he along with his father Munawar Khan and his uncle Asal Khan were proceeding from their house towards their land and when they reached near the shop of the accused, both the accused, emerged therefrom, duly armed with Kalashnikovs and shouted that, none of them could escape that day as a result, they took few steps back but the accused fired at the deceased due to which he was hit, fell down while the accused fled away after the occurrence. He further alleged that the deceased, then injured, was taken in a Pick-up by him with the help of his uncle Asal Khan and when they were proceeding towards R.H.C. Teetar Khel, in the way the injured succumbed to the injuries. Motive for the crime is shown to be a previous blood feud between the parties. After registration of the case, the dead body was sent to the mortuary for post-mortem examination and during the autopsy a bullet was recovered therefrom. The Investigating Officer went to the spot and secured blood-stained earth from there. No crime empty was recovered from the alleged places of the accused.
3. Both the accused surrendered on 15-9-2003. At his first appearance Asmatullah accused took a plea of alibi before the Investigating Officer but it was not verified despite of repeated requests made.
4. During the first round, the plea of alibi was agitated but it was not considered because no materials in its support by then were collected/brought on record.
' After the rejection of his first bail petition, accused Asmatullah made an application through the Superintendent District Jail, Lakki to the Acting S.P./D.S.P. For the verification of his plea of alibi thus, Inspector Bashir Ahmad was deputed to investigate and verify the said plea who collected Billties of goods forwarding agency Minchanabad Bahawalnagar wherefrom accused Asmatullah has brought wheat to D.I. Khan and this process was allegedly completed by him from 20-8-2003 to 15- 9-2003. Apart the said record, statements of Muhammad Raees, Muslim Khan, Nisar Khan and Muhammad Sharif Wazir were also recorded who testified and deposed in support of the plea of alibi taken by the said accused.
5. After collecting the said material and recording statements of the above witnesses who according to the record have no ostensible connection with accused Asmatullah, the Investigating Officer found him innocent and placed him in Column No,2 of the challan which is available on the original file while Abdul Malik accused has been placed in Column No,3 and is recommended for trial.
' In view of these new developments, accused Asmatullah applied again for bail along with the co- accused but bail petitions were dismissed by the learned Magistrate as well as learned Sessions Judge, Lakki for the only reason that the case of the petitioners was earlier considered by this Court along with the plea of alibi of Asmatullah accused but was dismissed, thus, they are now seeking bail on fresh grounds from this Court.
6. Syed Zafar Abbas Zaidi, learned counsel for the petitioners vehemently contended that several aspects creating serious doubts in the prosecution case were neither argued nor considered before all the three learned Courts in the first round. Elaborating his point of view, he argued, that the only bullet recovered from the dead body was sealed into a parcel and was sent to the expert along with the klashnikov recovered from the house of accused-petitioner Abdul Malik wherefrom it was opined by the expert that the bullet was of .30 bore and not of klashnikov thus this circumstance, as was contended, is very fatal to the prosecution case and benefit of doubt can not be withheld for the only reason that it would amount to deeper appraisal of material/evidence.
Next he argued that in the line of firing of accused there is shown a wall in the site-plan of more than a man height but not a single bullet mark was found thereon.
' The learned counsel vehemently contended that it is a settled principle and rule that once an accused is declared innocent during the course of investigations and is placed in Column No,2 then he is no more an accused person nor he can be treated so unless and until after submission of challan, the trial Court take cognizance and summon him for trial and for this very reason he lastly argued that the case of Asmatullah accused is entirely distinguishable and fit for grant of bail on this fresh ground.
7. Mr. Muhammad Ashraf Khan, learned counsel for the complainant, however, contended that neither the opinion of the police is binding on the Court nor on such opinion bail can be granted as of right. Next he argued that the plea of alibi was taken in the previous bail petition but it was not considered even by this Court, therefore, the same could not be considered as a fresh ground for grant of bail. He further contended that the re-investigations were conducted by an Inspector 'of Police Station Lakki while the present case pertains to the jurisdiction of P.S. Ghazni Khel which is an irregularity. He further argued that some of the witnesses produced in defence have some nexus with the petitioner Asmatullah and that they have appeared at a much latter stage of investigations, therefore, the material collected in support of the plea of alibi including the statements of these witnesses are not sufficient to declare Asmatullah accused as innocent nor he is entitled to the grant of bail.
' Mr. Imtiaz Ali, learned Additional Advocate-General appearing for the State frankly conceded that the case of Asmatullah accused-petitioner is distinguishable from co-accused Abdul Malik because in view of the prosecution he is no more accused in the case as he has not been sent up for trial having been placed in Column No,2 of the challan thus he stated at the bar that he would not oppose the grant of bail to accused Asmatullah while case of accused Abdul Malik is placed on different pedestals and at this stage conclusive findings cannot be given by this Court about the credibility of the eye-witnesses because of the recovery of .30 bore bullet from the dead body instead of kalashnikov.
8. There 'is no cavil to the proposition that once a bail petition is dismissed on merits after considering all aspects of the prosecution and defence versions, subsequent bail petition, ordinarily is not to be entertained, however, in the instant case as stated earlier the plea of alibi taken by Asmatullah accused on the first day of his appearance before the police was not put to the test of verification/investigation by the first Investigating Officer despite the fact that he was asked time and again and no valid reason has been shown on record for such omission. It was A the statutory obligation of the Investigating Officer to have acted in the manner as required by the law thus, his failure to verify the said plea of alibi could not be made a ground to disentitle the petitioner Asmatullah to the benefit of doubt arising out of the subsequent developments as a result of fresh investigations.
9. In the matter of bail, benefit of doubt whether arising out of the prosecution case or because of the valid defence plea taken by the accused cannot be competently denied to accused person.
This principle is by now well settled subject to the rule of caution given by the Honourable Supreme Court in Khalid Javed Gillan's case PLD 1978 SC 256. The same is reproduced below:-- "Section 497---Bail---Assessm ent of evidence.
' Bail having to be allowed or rejected on basis of evidence produced by the parties, Court bound to make tentative assessm ent of its evidentiary value - Section 497, Criminal Procedure Code, 1898 - Does not in terms contain any restrictions on Court's power to assess evidentiary value of material placed before it - Courts, however, have to refrain, directly or indirectly, from giving any conclusive finding on question of guilt or innocence of accused ---- ' Court, in matters of bail, to go by its assessment of "the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case"
Prosecution though may prove the prosecution witness to be man of unimpeachable character for purpose of bail, however, hostile relationship between parties a circumstance not irrelevant, to Court's assessm ent of material produced before it - Petitioner's plea of alibi supported by affidavit of a disinterested person, a medical practitioner of high repute, not having any ostensible connection with petitioner - Bail in absence of proof of Doctor's evidence being not fit to be relied upon, held, could not be properly refused - Impugned order being based on misreading of section 497, petitioner ordered to be released on bail."
10. Plea of alibi like other defence pleas taken at a bail stage is essentially required to be examined by the Court but with a degree of care and caution and there is no prohibition in law to grant bail on such plea, however, the assessm ent of the material in support of the plea must be tentative in nature as deeper appraisal would prejudice the case of one party or the other before the trial Court particularly in a murder case.
11. In the instant case the plea of alibi taken by Asmatullah accused does not appear to be an afterthought as the same was taken on the first day when he surrendered to the local police. Non- verification/ investigations of the said plea by the police shall not deprive the said accused from the benefit of the same if it has been confirmed at a later stage during re-investigations. To ignore the said plea altogether while determining the question of grant of bail, for the simple reason that the plea was verified at a latter stage by the police would amount to doing injustice to the said petitioner as the fault and omission could be attributed to the investigating agency and not the said accused.
12. The contention that, in the previous bail petition such plea was taken but was found of no legal worth and bail was refused, therefore, second bail petition is not maintainable, is not tenable in the circumstances of the case as discussed above. Additionally while accepting the plea of alibi of petitioner Asmatullah as valid/credible one, the prosecution has acted upon it and has placed his name in Column No,2 of the challan 'which is meant for those accused not recommended for trial, therefore, at the moment Asmatullah accused-petitioner cannot be treated as an accused unless, the trial Court makes up its mind putting him on trial at the time of taking cognizance. This fact is a very strong circumstance favoring the said accused and case for grant of bail on such fresh ground is clearly made out.
' The Honourable Supreme Court in the case of Muhammad Ilyas v. Ijaz Ahmad Butt and another 1992 SCM R 1857 while dealing with almost similar proposition, has laid down, the following principle:-- "Articles 199 and 185 (3) of the Constitution of Pakistan and section 497, Cr.P.C."
"Case triable under sections 302/148/149 and 324, P.P.C. And 337-A, P.P.C. Was pending before the Special Court for Speedy Trials---Person whose name was placed in column 2 of the challan filed bail application before the Trial Court which was dismissed---Said person filed application for bail before the High Court which was converted by the High Court into a Constitutional petition under Article 199 of the Constitution and bail was allowed to him---Held, person was not an accused person insofar as his name was not included in the column of accused persons but appeared in Column No,2 of the challan because Investigating Agency was short of material against him--- Said person by himself on his own had approached the Trial Court for bail and on failure filed application in the High Court for the purpose---Neither police had taken any steps to arrest the said person because for doing so police had to show that sufficient material was available against him and his name for that reason was to be taken out from Column No,2 and put in the column of accused persons who were not in custody nor the Trial Court had taken any step to show that he was being treated as accused person---Trial Court had declined bail to the person on technical grounds, inter alia that report submitted under section 173, Cr.P.C. Was contradictory---No interference by Supreme Court, therefore, was warranted because prosecution had not treated the person as accused person so far as question whether order of bail granted by High Court, was valid or not would arise only when steps were taken by the prosecution to treat him as accused person."
' It is true that, mere opinion about the innocence of accused has no persuasive value for the Court and could not be made basis for grant of bail but, when such opinion is founded on sound material collected during the investigations and while acting on such opinion the accused is placed in Column No,2 of the challan then, it is, difficult for the Court to lightly ignore such opinion unless the Court finds that the material collected and made basis for the opinion are artificial or otherwise unsound and insufficient for placing reliance on it. Even in the case of equal probabilities, it is the accused to get benefit of it.
' In view of the above stated facts and while respectfully following the principle of law laid down by the apex Court in the ibid cases, case of accused-petitioner Asmatullah clearly comes within the purview of F subsection (2) of section 497, Cr.P.C., therefore, he is entitled to grant of bail as of right.
' Accordingly accused-petitioner Asma tullah is granted bail in the sum of Rs,2,00,000 (two lacs) with two reliable sureties each in the like G amount to the satisfaction of Illaqa Magistrate while the case of accused-petitioner Abdul Malik is different in nature and he cannot be granted bail on the contentions of the defence because the same would involve this Court in deeper appraisal/assessm ent of the prosecution case which course is neither desirable nor permissible at bail stage. Consequently prayer for bail of Abdul Malik accused is disallowed.
' These are the detail reasons for the short order dated 2-8-2004.