Zaram Khan Vs The State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BE]{CH

(ludicial Department)

Cr.M (Barl) No. 205-A/2025

Zorom Khan son of Ameer Khan.

(Petitioner/s)

VS

The Stqte ond another.

(Respondent/s)

Present Mr. Abdul Saboor Khan, Advocate, for the petitioner.

Malik Amjad Inayat, learned AAG, for the State.

Mr. Shad Muhammad Khan, Advocate, for complainant.

Date of hearing: 18.04.2025

JUDGMENT

SADIO ALI, J.- This order is directed to dispose of the instant bail application filed by the petitioner namely Zaram Khan slo Ameer Khan for the grant of post arrest bail in case FIR No. 81 dated 28.01.2025 under section 302/34 PPC at Police Station Lari Adda, District Mansehra ) According to the FIR, the complainant df Muhammad Ishaq, along with the dead body of his brother Nisar Ahmed, reported to the local police that Nisar had left home to attend a hearing at the District Court. Shortly after, Ishaq and his friend

Ramzan also left. Upon reaching a place known as Siyan da Katha, Ishaq contacted Nisar, who said he was waiting near Bukhari Autos on Chinar Road and asked to be picked up. Around 10:50 AM, when they reached near Bukhari Autos, a Cuore Car bearing registration No. LEA-6709 in front of them stopped. The accused/petitioner and co- accused got out and opened fire, fatally injuring Nisar, who died on the spot. The assailants then fled the scene in their vehicle

3.Arguments of learned counsel for the parties as well as learned Astt: A.G appearing on behalf of State were heard in considerable detail and the record perused with their able assistance.

d/ 4. The record of the case clearly establishes that the present accused/petitioner has been formally charged with the commission of an offense alongwith co-accused, however, absence incriminating evidence raises significant doubts regarding the petitioner's involvement, necessitating a thorough examination of the facts and circumstances surrounding the case. After nominating in the case, at the very initial stage, the petitioner proactively took steps to assert his innocence by submitting a detailed application to

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the Superintendent of Police (SP), Investigation, Mansehra. In this application, the petitioner raised a robust plea of alibi, contending that at the precise date and time of the alleged occurrence, he was not present at the scene of the crime. Instead, he asserted that he was traveling in his vehicle and was physically located in Swat Khawaza Khela, a considerable distance from the place of occurrence.

Furthermore, the petitioner claimed that during this period, he was residing at Al-Habib Hotel (Guest House) in Swat Khawazs Khela. To bolster his claim, the petitioner provided a detailed account of his movements, stating that on the subsequent day, i.e., January 29, 2025, he sought and obtained transit bail from the Sessions Court, Kolai Palas, located in Basham, further corroborating his presence in a different jurisdiction at the relevant time.

d,f \ In support of his alibi, the petitioner furnished a comprehensive set of documentary and electronic evidence to substantiate his presence.

This evidence included, but was not limited to, the following: (1) mobile phone location data, which tracked his movements and confirmed his presence in Swat Khawaza Khela; (2) entry records from the

Shangla Check Post, which documented his vehicle's passage through the area; (3) CCTV footage and photographs obtained from Al-Habib Guest House, capturing his presence at the premises; and (4) the guest register of Al-Habib Guest House, which contained a verifiable entry of his stay along with CCTV video from the office of DPO, Shangla regarding his presence These pieces of evidence collectively formed a compelling case for the petitioner's absence from the scene of the alleged offense.

0 The Investigation Officer, acting diligently, collected and scrutinized the aforementioned evidence. To ensure its authenticity, the materials were subjected to forensic analysis by the Punjab Forensic Science Agency (PFSA). The forensic examination yielded dd a critical finding: no traces of editing, tampering, or manipulation were detected in the submitted evidence, thereby lending significant credibility to the petitioner's claims. The verified evidence strongly supports the petitioner's contention that he was not present at the location where the offense allegedly occurred, casting substantial doubt on the prosecution's narrative. Given the peculiar facts and

circumstances of this case, it is evident that the petitioner's culpability cannot be conclusively determined at this stage. The learned trial court is tasked with the responsibility of resolving this matter by conducting a thorough and impartial evaluation of all evidence, both in favor of and against the petitioner. This evaluation must include the recording of pro and contra evidence, allowing the Court to ascertain whether the petitioner was indeed present at the place of occurrence or whether his alibi holds true. Until such a determination is made, the petitioner's case remains one of further inquiry, warranting a cautious approach to any conclusions regarding his guilt or innocence. In the case of "Chaudhrv Nadeem Sultan vs. The State ush P.G. Puniab and another" reported as 2022 SCMR 633 it has been held by the Hon'ble Apex Court that "accused was ascribed direct role of causing fire-arm injury to dl the deceased, however, he pleaded plea of alibi and during the course of investigation the same was found to be correct and as such the name of the accused was placed in column No.2 of the report submitted under S. 173, Cr.P.C. as no recovery had been effected fro* him during the course of

investigation--Opinion given by the Investigating Officer was based upon the Call Details Record (CDR) of the cell phone of the accused which showed his presence away .fro* the place of occurrence---Senior police fficial, who wos summoned by the Court, appeared and stated that about 100 persons appeared before the Investigating Officer and amongst those 18 persons furnished their duly vertfied ffidavits, that at the time of occurrence the accused was present in chehlum of a co-villager and even the son of deceased had furnished ffidavit in such regard wherein he specifically stated that at the time of occurrence accused was present at the chehlum--- Case of accused squarely fell within the ambit of S.

497(2), Cr.P.C. calling for further inquiry into his guilt'. Similarly, in the case of "Zaisham Ashraf vs. The and others' ' reoorted as 2016 SCMR 18 it has been held that "no hard and fast rule dil existed against considering plea of alibi at bail stage. Wile granting or refusing to grant bail to an accused person, the court was not required to see and consider the material/evidence collected in favour of the prosecution but also had to give proper attention to the defence plea taken by an

accused person". In the case of "Malik Muhammad Saleheen and others vs. Arshad Siddiq and 2 others" reported as 1997 SCMR 1829 it has been held that "plea of alibi raised in a bail matter may not be outrightly rejected and can be gone intofor the purpose of grant or refusal of boil.

In the case of "Saddique Zaman vs.

Mohammad Khan and 2 others" reported as 2017 MLD 1128 this Court has held that "no hard and fast rule existed that plea of alibi would not be taken into consideration at the stage of bail, however, circumstances of each and every case were to be looked into. Tests which were required for genuineness of plea of alibi should be that it had been tqken at the earliest, that it appeared to be reasonable and there wqs no question of df manipulation for the same. In the present case accused was arrested on the very day of occurrence fro* Police Line and had not participated in the commwSton of offence. Statements of two responsible persons were recorded under 5.164, Cr.P.C. who confirmed the stance of accused that at the relevant time he was present in Police Line.

Question was as to whether in such like circumstanees where two police fficers confirm

the presence of accused at relevant time, the same could be discarded fo, the purpose of bail just by holding that plea of alibi wqs to be determined by Trial Court was not correct. Besides that plea of alibi of accused had not been rebutted by prosecution rather same had been confirmed by Investigating Agency by recording the statements of two witnesses who were categoric on the point that at the relevant ttme accused was present in Police Line which made the case of accused arguable for the purpose of bail being one of further inquiry.

Recently the Hon'ble Apex Court in Criminal Petitions No. 157 of 202'4 and Crl.P. No. 894 of 2024 has confirmed the pre-arrest bail granted to the petitioners on the basis of plea of alibi.

7.Even otherwise, the Challan in the case is almost complete and thus further custody of the accused/petitioner is neither required to the df prosecution nor the same would serve any useful purpose. In a case oft "@

another vs. State through Prosecutor General Sindhu reported as 2023 SCMR 364 the Hon'ble Apex Court has held that *it is a well settled principle of the administration ofiusttce in criminal law that every accused is innocent until his guilt is

proved and this benefit of doubt can be extended to the accused even at the bail stage, if the facts of the cqse so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not which is not a stattc law but growing all the time, moulding itself according to the exigencies of the time".

8.In the given facts and circumstances the accused/petitioner has made out a case for the grant of bail. Accordingly, the instant bail application is allowed and accused/petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs. 300,000/- (three hundred thousand) with two sureties each in the like amount to the satisfaction of leamed trial Court/JM/IvIOD, who shall ensure that the sureties s$ are local, reliable and men of means. Observations recorded hereinabove are purely tentative in nature and should in no way prejudice an independent mind of learned trial Court during the course of trial.

2 Above are the details reasons of order of even date.

Announced

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