1

Assignment submission, in lieu of Semester Examination

Subject : Law of Evidence

Muhammad Haroon

Semester 7th

Department of Law
2

PLEA OF ALIBI
Introduction :

Alibi or plea of alibi is a claim of innocence brought forth by the defendant in which he alleges
that at the time when the offence with which he is charged was committed, he was elsewhere.
The court will require the defendant to prove ‘alibi’ in accordance with law. Since the defendant
is looking for help from the court, he should be straightforward and avoid giving false alibi, for
his own safety and protection from the grip of law. Rest assure the law of the land ‘is wiser than
mankind’ and will never put its hand on a stranger- the one who can establish ‘alibi’ to the
satisfaction of the court.

Alibi or no alibi, evidence has a role to play in the proof, that can be given of facts which have
no other connection with the main facts of a case except this that they are inconsistent with a fact
in issue or a relevant fact. Their inconsistency with the main facts of the case is sufficient to
warrant their relevancy. Article 24 of Qanoon-e-Shahadat Order, 1984 declares when facts not
otherwise relevant become relevant. The word relevant means that any two facts to which it is
applied are so related to each other that according to the common course of events, one either
taken by itself or in connection with other facts proves or renders probable the past, present or
future existence or non-existence of the other.

Alibi:

Alibi [Latin “elsewhere”] is a defense based on the physical impossibility of a defendant’s guilt
by placing the defendant in a location other than the scene of the crime at the relevant time. It is
the fact or state of having been elsewhere when an offence was committed. The requisites of a
satisfactory alibi are; (i) that it should be pleaded at the earliest opportunity; and (ii) that it
should cover the time of the alleged offence.

Plea of Alibi:

The burden of substantiating the plea of alibi and making it reasonably probable lies on the
person who sets it up i.e. defendant and this burden is heavy and strict. Where plea is not
supported by any evidence, bail cannot be granted. This plea should be raised at the earliest and
3

must be supported by strong evidence, as it cannot be given weight unless same is proved very
cogent, convincing and plausible evidence. The failure to produce the evidence of alibi at the
earliest opportunity is also a circumstance which may go against the accused. The accused in
order to succeed needs only produce evidence sufficient to raise in the court’s mind a reasonable
possibility of likelihood of his being at the place where he asserts to have been. Further, failure
to establish alibi by accused cannot be taken as adverse circumstance against him, even setting
up false alibi cannot lead to inference of guilt.

enough that it renders his guilt improbable merely As stated earlier, plea of alibi is the weakest
type of plea and cannot be given any weightage unless same is proved from very cogent,
convincing and plausible evidence therefore, setting up a false plea of alibi does not lead to an
inference of guilt but at the same time it can be a confirmatory circumstance to prove the guilt.
Accused has to discharge the burden by producing satisfactory, reliable and authenticating
evidence that his presence at the place of incidence at the relevant time was not possible because
of his presence at the relevant time at another place. He is not bound to disclose his version on
the first available opportunity and if he has not done so, burden would not shift upon him to
disprove the guilt, but disclosing of his version at the earliest is only relevant to show the stand
taken by him which might ultimately help him in disproving the prosecution case. and
prosecution is duty bound to prove his case beyond doubt. However, it must be kept in mind that
the accused has to prove his plea by producing evidence or atleast his plea should be supported
by the attending circumstances and it should not be unfounded altogether.

Case Analysis :

2022 Y L R 831

[Islamabad]

Before Tariq Mehmood Jahangiri, J

DILSHAD KHAN---Petitioner

Versus

The STATE and another---Respondents

4

Criminal Miscellaneous No. 156-B of 2021, decided on 8th March, 2021.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd and common intention---
Pre-arrest bail, refusal of---Plea of alibi---Scope---Accused was nominated in the FIR with a
specific role of committing qatl-i-amd of complainant's daughter---Complainant was also an
eye-witness of the occurrence---Deceased and accused were married in the year 2008, out of
the wedlock a son was born in the year 2009 and thereafter in the year 2013 the accused had
pronounced divorce---Minor son was living with his father but when he grew up, he wanted
to live with his mother---Accused was not happy, therefore, he filed an application under S.
491, Cr.P.C. wherein he had alleged that his son was abducted by the deceased---Deceased in
the year 2020 had submitted an application to the S.H.O. (Station House Officer) wherein it
was mentioned that some unknown persons while riding a bike had come close to her, had
issued threats, had also shown some weapons and had stated that leave her son---Deceased
had further stated in the application that it was second attack upon her--- Plea of alibi, as
raised by the accused, could only be considered by the Trial Court after recording of
evidence---Accused had failed to make out a case for grant of pre-arrest bail---Petition was
dismissed, in circumstances.

Waqar-ul-Haq v. State 1985 SCMR 974 and Bahadur v. Muhammad Latif 1987 SCMR 788
ref.

Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 and Kamran Attaullah and
another v. The State in Criminal Petition No. 149-K of 2020 rel.

Sajid Haider Malik for Petitioner/ accused.

Malik Muhammad Zulfiqar for the Complainant.

Mashhood Azam Awan, State Counsel.

Petitioner in person.

Ashiq Hussain Shah, Inspector.

5

ORDER

TARIQ MEHMOOD JAHANGIRI, J.---Through the instant petition, the petitioner seeks
bail before arrest in case FIR No. 22/21, dated 22.01.2021, offences under sections 302/34,
P.P.C., registered at Police Station Shams Colony, Islamabad.

2. Brief facts of the case are that the complainant/Gul Amber son of Chaman Khan
moved an application before the S.H.O. Police Station Shams Colony, Islamabad, stating
therein that on 22.01.2021, at around 07:30 p.m., when he came out of Masjid after offering
prayer, he saw petitioner/accused namely Dilshad son of Anwar Khan along with another
person present at the gate of his house. As the complainant was approaching towards them,
petitioner/ accused started firing inside the open gate and then ran away along with his
companion. The complainant hurriedly entered inside the house and saw his daughter namely
Nosheen, smeared with blood, who was lying in the courtyard. The grandson of the
complainant namely Hamid Zaib made a call to Rescue-15 and 1122, however, his daughter
died before their arrival. There was a dispute between the complainant's deceased daughter
and petitioner/accused about the custody of their son, while the minor boy, after getting
angry with his father i.e. petitioner/accused Dilshad, left his abode and was residing with his
mother (i.e. deceased Nosheen), and did not want to go back. For such a reason, the
petitioner/accused became furious upon his ex-wife namely Mst. Nosheen/ deceased and had
threatened her on number of occasions in past, and due to such a reason, petitioner/accused
killed her, hence the instant FIR.

3. Learned counsel for the petitioner/accused contends that the petitioner was not
present at spot at the time of occurrence. Son-in-law of the complainant has also nominated
brother of the petitioner/ accused in the case who was declared innocent by the police on the
plea of alibi and has been granted bail after arrest by the Court of learned Additional
Sessions Judge, Islamabad. He further contends that there was no dispute between the parties
and there is no motive of the petitioner/accused for committing murder of his ex-wife and
lastly prayed that bail before arrest of petitioner/ accused be confirmed.

4. On the other hand, learned state counsel assisted by learned counsel for complainant
contends that sufficient evidence is available on record against the petitioner/accused. The
6

offences fall under the prohibitory clause of section 497 Cr.P.C, even the petitioner / accused
has already been nominated by the deceased as an accused for abduction of her son; accused
has committed a heinous crime and is not entitled for confirmation of bail before arrest.

5. Arguments heard, record perused.

6. Petitioner/accused is nominated in the FIR with a specific role of committing Qatl-i-

Amd of complainant's daughter, Mst. Nosheen. The complainant is real father of the
deceased and is also an eye-witness of the occurrence. Admittedly, the deceased and the
petitioner were married in the year 2008, out of the wedlock a son was born in the year 2009
and thereafter the petitioner / accused pronounced divorce in the year 2013. The minor son
was living with his father but when he grew up, he wanted to live with his mother. The
accused was not happy, therefore, he filed an application before the learned Sessions Judge,
Islamabad under section 491, Cr.P.C. wherein he alleged that his son was abducted by the
mother/deceased. On 11.12.2020 the deceased submitted an application to S.H.O., Women
Police Station, Islamabad, wherein it was mentioned that some unknown persons while riding
a bike came close to her and issued threats and also shown some weapons and stated that
leave her son i.e. Farhan aged about 10 years, who was living with his father after the
divorce. She has further stated in the application that it was second attack upon her/deceased.

7. I.O. has informed that there is no plausible evidence of the plea of alibi taken by the
petitioner/ accused and stated that the petitioner/ accused is involved in the case and recovery
of weapon is yet to be effected and other evidence will also be collected during the course of
investigation. It is well settled principle of law that plea of alibi can only be considered by
the trial Court after recording of evidence. Reliance is placed upon cases titled as Waqar-ul-
Haq v. State (1985 SCMR 974) and Bahadur v. Muhammad Latif (1987 SCMR 788).

8. It was held by Hon'ble Supreme Court of Pakistan in case titled as Rana Abdul Khaliq
v. The State and others (2019 SCMR 1129) that "Grant of pre-arrest bail is an extra ordinary
remedy in criminal jurisdiction; it is diversion of usual course of law, arrest in cognizable
cases; a protection to the innocent being hounded on trump up charges through abuse of
process of law, therefore a petitioner seeking judicial protection is required to reasonably
demonstrate that intended arrest is calculated to humiliate him with taints of mala fide; it is
7

not a substitute for post arrest bail in every run of the mill criminal case as it seriously
hampers the course of investigation".

9. In the recent order passed by Hon'ble Supreme Court of Pakistan in case titled as
Kamran Attaullah and another v. The State in Criminal Petition No. 149-K of 2020, it is held
that "It is by now well settled that the accused in a criminal case cannot be granted anticipatory
bail to subvert or undermine investigative procedure/process that essentially include arrest in
order to bring the statutory exercise to its logical end for effective and meaningful prosecution
of the offence through collection of information / evidence consequent upon arrest. Mala fide,
manifestly intriguing upon the intended arrest, is the only justification to suspend or divert the
usual course of law, a step most extraordinary by all means".

10. Considering the above facts and circumstances, I am clear in my mind that the
petitioner/accused has failed to make out a case for grant of pre-arrest bail, consequently,
instant bail petition stands dismissed. Ad-interim bail already granted to the
petitioner/accused vide order dated 24.02.2021, passed by this Court is hereby recalled.

11. Needless to mention that, this is a tentative assessment which shall not affect the trial
of case in any manner.

SA/82/Isl. Bail declined.

2022 S C M R 663

[Supreme Court of Pakistan]

Present: Maqbool Baqar and Sayyed Mazahar Ali Akbar Naqvi, JJ

Chaudhry NADEEM SULTAN---Petitioner

8

Versus

The STATE through P.G. Punjab and another---Respondents

Criminal Petition No. 852 of 2021, decided on 12th November, 2021.

(Against the order dated 17.06.2021 of the Lahore High Court, Rawalpindi Bench,
Rawalpindi passed in Cr. M. No. 1127-B of 2021)

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

----S. 497(2)---Constitution of Pakistan, Art. 185(3)---Penal Code (XLV of 1860), Ss. 302,
324, 34, 449 & 109---Murderous assault---Bail, grant of---Further inquiry---Admittedly there
was delay of more than 5 hours in lodging of the FIR for which no explanation had been
rendered by the prosecution---Whereas the inter-se distance between the place of occurrence
and the police station was 06 kilometers---Accused was ascribed direct role of causing fire-
arm injury to 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 from 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 from the place of occurrence---Senior police official, who
was summoned by the Court, appeared and stated that about 100 persons appeared before the
Investigating Officer and amongst those 18 persons furnished their duly verified affidavits,
that at the time of occurrence the accused was present in chehlum of a co-villager and even
the son of deceased had furnished affidavit 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---Petition for
leave to appeal was converted into appeal, and allowed and accused was granted bail.

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

----Ss. 155 & 156---"Accused"---Definition---Any person against whom an accusation was

made could not be dubbed as an accused unless and until he was found involved by the
9

Investigating Officer and in this regard a specific order for his arrest was made by him.

Brig. (Retd.) F. B. Ali and another v. The State PLD 1975 SC 506 ref.

Muhammad Ramzan Chaudhry, Senior Advocate Supreme Court for Petitioner.

Abid Majeed, DPG, Athar Ismail, CPO, Syed Ghazanfar Shah, SSP, Ms. Shazia, DSP,
Sikandar, IO and Mukhtar, Ex. I.O. for the State.

Malik Waheed Anjum, Advocate Supreme Court for the Complainant.

Date of hearing: 12th November, 2021.

ORDER

SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has
assailed the order dated 17.06.2021 passed by the learned Single Judge of the Lahore High
Court, Rawalpindi Bench, Rawalpindi, with a prayer to grant post-arrest bail in case
registered vide FIR No.385/2021 dated 11.03.2021 under sections 302/324/449/109/34,
P.P.C. at Police Station Saddar Berooni, Rawalpindi in the interest of safe administration of
criminal justice.

2. Briefly stated the allegation against the petitioner is that he along with co-accused
while armed with rifle fired on different parts of the deceased whereas the fires made by his
co-accused with pistol landed on the chest and belly of the deceased due to previous enmity.

3. At the very outset, it has been argued by the learned counsel for the petitioner that the
petitioner has been falsely roped in this case against the actual facts and circumstances.
Contends that though the petitioner is ascribed the direct role of causing fire-arm injuries but
during the course of investigation he was found innocent and his name was placed in Column
No.2 of the report under section 173, Cr.P.C. Contends that the prosecution has not
challenged the opinion of the police and as such it has attained finality. Therefore, the
petitioner is entitled to the concession of bail as the case of the petitioner squarely falls under
section 497(2), Cr.P.C.
10

4. On the other hand, the learned Law Officer, assisted by the learned counsel for the
complainant, has vehemently argued that though the petitioner has not been challaned by the
Investigating Officer, still there is ample material available on the record to connect the
petitioner with the alleged accusation. Contends that the plea of alibi taken by the petitioner
is artificial and that it can be procured easily. Contends that the affidavits furnished by 18
persons have no value as the same are customary in nature. Lastly, contends that inter se
distance between the place of occurrence and the place where the petitioner claims presence
at the time of occurrence is hardly 20 kilometers which can be covered within 10-15 minutes
through motorcycle. Hence he is not entitled for the concession of bail.

5. We have heard the learned counsel for the parties and perused the available record.

There is no denial to this fact that the occurrence has taken place on 11.03.2021 at 2:20 p.m.,
whereas the matter was reported to the police at 7:40 p.m. Admittedly there is delay of more
than 05 hours in lodging of the FIR for which no explanation has been rendered by the
prosecution. Whereas the inter-se distance between the place of occurrence and the Police
Station is 06 kilometers. Both these aspects of the case are connected inter-se which requires
determination as per dictates of justice especially when there is strong motive alleged by the
prosecution. The petitioner is ascribed direct role of causing fire-arm injury to the deceased,
however, the petitioner pleaded plea of alibi and during the course of investigation the same
was found to be correct and as such the name of the petitioner was placed in column No.2 of
the report submitted under section 173, Cr.P.C. as no recovery has been affected from the
petitioner during the course of investigation. Now the question which requires determination
is whether the case of the petitioner is fully covered by the dictum of further inquiry as
envisaged under section 497(2), Cr.P.C. Perusal of the opinion given by the Investigating
Officer is based upon the CDR of the cell phone of the petitioner which shows his presence
away from the place of occurrence. We had summoned the CPO and the investigating Officer
vide order dated 10.11.20.21 for a limited purpose to know whether the opinion given by the
Investigating Officer was solely based upon CDR and it can be made basis to declare any
person innocent in a case of heinous nature. The CPO, present in Court, has stated that about
100 persons appeared before the Investigating Officer amongst those 18 persons furnished
their duly verified affidavits, that at the time of occurrence the petitioner was present in
11

chehlum of a co-villager and even the son of deceased had furnished affidavit in this regard
wherein it is specifically stated that at the time of occurrence the petitioner was present over
there. The CDR was taken into consideration only to verify the contents of the affidavits and
oral statements of the persons who have appeared in defence of the petitioner before the
Investigating Officer. We have gone through the law on the subject and found that the
definition of an accused person is not provided anywhere in Cr.P.C., rather it was this Court,
for the first time in a salutary judgment reported as Brig. (Retd.) F. B. Ali and another v. The
State (PLD 1975 SC 506) defined the word "accused person". The same is reproduced as
under:-

"In my view the mere lodging of an information does not make a person an accused
nor does a person against whom an investigation is being conducted by the police can
strictly be called an accused. Such person may or may not be sent up for trial. The
information may be found to be false. An accused is, therefore, a person charged in a
trial. The Oxford English Dictionary defines an "accused" as a person "charged with a
crime" and an "accusation" as an "indictment". Aiyer in his Manual on Law Terms
also gives the same meaning. I am of the view, therefore, that a person becomes an
accused only when charged with an offence."

Perusal of the above definition dearly reflects that any person against whom an accusation is
made cannot be dubbed as an accused unless and until he is found involved by the
Investigating Officer and in this regard a specific order for his arrest is made by him. All
these ingredients are missing, therefore, as far as the status of the petitioner is concerned, he
cannot be termed as an accused person. However, we have been informed that the report
under section 173, Cr.P.C. has been submitted before the Trial Court and the Court has taken
cognizance while summoning accused person which clearly reflects that the summon has
been issued for furnishing bail bonds which is in accordance to the procedure laid down
under sections 91/204, Cr.P.C. Therefore, the case of the petitioner squarely falls within the
ambit of section 497(2), Cr.P.C. calling for further inquiry into his guilt.

6. For what has been discussed above, we convert this petition into appeal, allow it and
set aside the impugned order dated 17.06.2021. The petitioner is admitted to bail subject to
12

his furnishing bail bonds in the sum of Rs.500,000/- with one surety in the like amount to the
satisfaction of learned Trial Court.

7. Before parting with the order, we have been informed that co-accused of the
petitioner are still at large, therefore, the CPO is directed to adopt all possible measures for
bringing the culprits before the law strictly in accordance with law. He is further directed to
furnish fortnightly progress reports in this regard for our perusal in Chambers.

MWA/N-19/SC Bail granted.

Conclusion:

Law is a rule of action on the one hand and an instrument of society on the other; and the
philosophy of law is to deter actual and potential criminals from the commission of crimes
through fear of punishment. The main purpose of such deterrence is to keep peace in the society.
Legal theorists generally consider different aims of punishment as, correction, retribution or
reformation of a criminal and at the same time the law seeks to safeguard the interests of the
members of the society by providing rules like ‘audi alterum partem’ and ‘let nine criminals be
let free’ than the one innocent punished wrongly. Meaning thereby, that it is the foremost
responsibility of the court to watch with care that those not involved in the act, must not be
harassed; must not be punished. Plea of alibi thus if put to logical conclusion, conveys to all a
pre-ordained purpose of law, which is ‘justice’. Justice is the upholding of rights, and the
punishment of the wrongs, by law. Justice again means to keep or to let the innocent free. After
all, the one who can prove his ‘alibi’ must enjoy the respect of law, shouldn’ti he?
13
i
Alibi as a defence by Aatir Rizvi Retrieved from https://www.pljlawsite.com/2013art34.htm#:~:text=Alibi%20or%20plea
%20of%20alibi,accordance%20with%20law%5B2%5D.