Sunday, 5 August 2012

How plea of Alibi is ascertained?



PLJ 2011 SC 40
[Appellate Jurisdiction]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Rehmat Hussain Jafferi, JJ.

SHOUKAR ILAHI--Petitioner

versus

JAVED IQBAL etc.--Respondents

Crl. Petition No. 7 of 2010, decided on 1.3.2010.

(Against order dated 15.12.2009 of Lahore High Court, Lahore, passed in Crl. Misc. No. 15102-BC of 2009).

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 302, 148 & 149--Bail, dismissal of--Police declared the accused innocent during investigation--Not a valid ground for grant of bail--Essential grounds for bail--Bail was granted on the ground that he was also declared innocent by Police--Application for cancellation of bail was allowed by High Court--Assailed--Validity--Police declared the accused innocent during investigation--It was not a valid ground for grant of bail as the bail can be granted in the case falling under prohibitory clause, firstly on the ground if the Court finds that there are reasonable grounds for believing that accused had not committed the offence, secondly accused is sick, infirm, under the age of 16 years, his remaining in jail would be detrimental to his life or woman, and thirdly, if the case requires further inquiry into guilt of the accused that he has not committed a non-bailable offence--Such facts were not available in the instant case--Petitioner could not take benefit solely on the ground that the police found him innocent--Even the opinion of police is not binding upon the Courts--Leave was refused.    [Pp. 43 & 44] A

Criminal Procedure Code, 1898 (V of 1898)--

----S. 497--Constitution of Pakistan, 1973, Art. 185(3)--Bail refusal of--Plea of alibi--No such defence at that time--Accused was nominated in FIR--Specific role of raising lalkara was assigned--Accused was declared innocent by the police on the plea of alibi--By applying rule of consistency granted bail to the petitioner--Challenge to--Cancellation of bail was allowed--Assailed--When the accused moved bail before arrest he did not raise plea of alibi, meaning thereby that he had no such defence at that time--To ascertain and evaluate the plea of alibi, the accused had relied upon the evidence of a large number of witnesses--Such exercise cannot be undertaken at that stage, as it requires deeper appreciation of evidence which can only be done at the time of trial, when such witnesses were produced by the accused in the Court and are subjected to cross-examination by prosecution--Leave was refused. [P. 44] B

Mr. Maqbool Elahi Malik, Sr. ASC for Petitioner.

Mr. Abdul Qadus Rawal, ASC, for Respondent No. 1.

Date of hearing: 1.3.2010.

Judgment

Rahmat Hussain Jafferi, J.--On 19.05.2008 at 12.30 Noon, the complainant Muhammad Javed lodged the report for offence punishable under Sections 302, 148 and 149, PPC alleging therein that the petitioner Shoukar Ilahi alias Pappu was lifting sand from various places and he tried to lift sand from his (the complainant) land, which was objected to, therefore, he was annoyed. It was further alleged that on 19.05.2008 at about 10 a.m, the petitioner alongwith co-accused Haider Butt brought their Trallies to lift the sand but the complainant and his brothers namely Muhammad Nadeem, Muhammad Aqeel and Muhammad Adeel restrained them from doing so, therefore, they took away the Trallies. Thereafter, the petitioner alongwith co-accused Haider Butt, Nasir Mehmood, Shabbir alias Moju and Muhammad Fayyaz, all armed with pistols came there. They made a lalkara that the complainant party would be taught a lesson for objecting over the lifting of sand from the land. Thereafter, the petitioner and other accused persons started firing at complainant's brother Muhammad Nadeem, which hit him on different parts of his body and he fell down on the ground and they ran away. The complainant party went to the deceased, who was laying injured, therefore, he was shifted to the Hospital but he succumbed to the injures. Hence the report was lodged.

2.  The petitioner moved bail before arrest application on 24.05.2008 on which the learned Additional Sessions Judge granted him interim bail, but subsequently he absconded therefore his bail application was dismissed. On 10.08.2009, Haider Butt, co-accused, was granted bail by the High Court on the ground that he was declared innocent by the police. After the grant of such bail solely on the ground that Haider Butt was declared innocent by the police, the petitioner surrendered before the Court and applied for post arrest bail on 31.08.2009 on the ground that he was also declared innocent by the police on the plea of alibi, the learned Additional Sessions Judge keeping in view the orders of High Court in the case of accused Haider Butt and by applying the rule of consistency granted bail to the petitioner, therefore, the complainant filed application for cancellation of bail before the High Court, which was allowed and the bail granted to the petitioner was cancelled, under the impugned order dated 15.12.2009. Hence the present petition.

3.  We have heard the learned counsel for the parties and perused the available record. Learned counsel for the petitioner has stated that the petitioner was not present at the scene of incident and took the plea of alibi before the police, where he produced affidavits of about 60 persons, therefore, the police also exonerated him from the charge and declared him innocent; that the case of the petitioner is similar to the case of co-accused Haider Butt, who was also granted bail on the ground that he was declared innocent by the police, therefore, on the rule of consistency, the petitioner is also entitled to the concession of bail. On merits, he has stated that general allegation has been leveled against the appellant for firing at the deceased and it is known who caused the fatal injury, therefore, bail may be granted.

4.  Conversely, learned counsel for the complainant has stated that the petitioner was fugitive from law after the grant of pre-arrest bail and had surrendered before the Court only after grant of bail to his co-accused Haider Butt; that in order to make the case at par with Haider Butt, co-accused, he had manipulated the plea of alibi but such plea was not raised by him at the time when he moved pre-arrest bail application. He has further argued that bail cannot be granted merely on the ground that the police found the petitioner innocent in the investigation as the opinion of the police is not binding upon the Court but the Court is required to form its own opinion after examining the material available on the record.

5.  As regards merits of the case, the learned counsel for the complainant has stated that the petitioner had motive to commit the offence; that the petitioner alongwith co-accused armed with pistols reached there and made lalkara by disclosing that the complainant party would be taught a lesson; that in pursuance of the said lalkara not only the petitioner but the other accused persons fired from their respective weapons upon the deceased; that the firing made by the petitioner and other co-accused had hit the deceased and that the evidence is supported and corroborated, by the medical evidence, as according to the Medical Officer, the deceased had received 8 fire-arm injuries on his person, out of them, two were exit wounds. He has supported the impugned order.

6.  We have given due consideration to the submissions made and have gone through the material available on record. From the record, we find that the name of the petitioner was mentioned in the FIR; that the motive had been alleged against him; that a specific role of raising lalkara was assigned to him and that it was specifically mentioned that he and his co-accused fired at the deceased, which hit him. The PWs have supported the case in their Section 161, Cr.PC statements which is further corroborated by the medical evidence, as according to the Medical Officer the deceased had six fire-arm entry injuries out of them two were exit wounds. Thus, prima facie incident has been committed by more than one person. From the material available on record, we are of the view that there are reasonable grounds for believing that the petitioner is involved in the case.

7.  As regards grant of bail on the ground that police declared the petitioner innocent during investigation, suffice it to say that it is not a valid ground for grant of bail as the bail can be granted in the case falling under prohibitory clause; firstly on the ground if the Court finds that there are reasonable grounds for believing that the accused has not committed the offence; secondly, the accused is sick, infirm, under the age of 16 years, his remaining in jail would be detrimental to his life or woman; and thirdly, if the case requires further inquiry into the guilt of the  accused  that  he  has not committed a non-bailable offence etc. Such facts are not available in the present case, therefore, the petitioner cannot take benefit solely on the ground that the police found him innocent. Even otherwise, the opinion of police is not binding upon the Courts.

8.  As regards the plea of alibi, it is pointed out that when the petitioner moved bail before arrest application, he did not raise such plea, meaning thereby that he had no such defence at that time. Furthermore, to ascertain and evaluate the plea of alibi, the petitioner has relied upon the evidence of a large number of witnesses. Such exercise cannot be undertaken at this stage, as it requires deeper appreciation of evidence which can only be done at the time of trial, when such witnesses are produced by the accused in the Court and are subjected to cross-examination by the prosecution.

9.  After considering the material available on record, we are of the view that the impugned order does not suffer from any irregularity or illegality to call for interference by this Court.

10.  In view of the above, the present petition lacking in merits stands dismissed and leave refused.

(R.A.)  Petition dismissed.

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