1986 PLP 2774 (MLD)

‑‑‑S.497(2)‑‑Bail‑‑Accused remained absconding for more than two years and arrested after proclamation issued under S.87, Cr.P.C. by Magistrate accepting challan‑‑Abscondence of accused disentitling him from concession of bail‑‑Order of High Court rejecting previous bail application of accused on said grounds maintained.‑‑[ Abscondence). Wahid Bux Baloch for the Applicant. Sharfuddin Ada for the State. This bail application has been repeated by the applicant after his previous application bearing No. 901/86 was rejected by this Court vide orders dated 6‑7‑1986. I have heard Mr. Wahid Bux Baloch for the applicant and Mr. Sharfuddin Ada for A.A.‑G. Before I consider the contentions raised by learned counsel for the applicant, I may reproduce the relevant portion of the previous order of this Court rejecting his bail application:‑ "Mr. M.I. Memon, learned Additional Advocate‑General does not contest the merits of the case but argues that the applicants had remained absconding for more than two years and, therefore, such abscondence of accused disentitles them from the concession of bail. The applicants were admittedly arrested on 29‑3‑1986 viz. after two and half years of the incident and more than a year after the challan was submitted. The order of the learned trial Court rejecting the bail application shows, that the learned Magistrate after accepting the challan vide his order dated 6‑1‑1986 had issued proclamation under section 87, Cr.P.C. Mr. M.I. Memon has relied upon P L D 1985 S C 182 where their Lordships have held that: "Fugitive from law and Court; loses some of normal rights granted by procedural as also substantive law. Unexplained noticeable abscondence of accused, therefore,' disentitles him to concession of bail notwithstanding merits of the case." It is now contended by learned counsel that in spite of abscondence the applicants could be released on bail on merits. In his support he. has relied on P L D 1985 S C 182 and 1985 S C M R

382. The case reported in P L D 1985 S C 182 was in fact relied upon by, this Court, while rejecting the previous bail application. I have gone carefully through the facts of the reported case. In the reported case the accused were absconding for 5 or 6 months. Their bail application was rejected by learned Magistrate on the ground of abscondence. However, the learned Sessions Judge granted them bail holding, that it was a case of further inquiry. The application for cancellation of bail moved in the High Court was also rejected by the High Court, holding the same view. In appeal the Supreme Court considered two points. Firstly, whether it was a case of further inquiry and what was the effect of abscondence in such a case. The Supreme Court came to the conclusion, that it was a case of further inquiry but still cancelled the bail of the accused persons making observations as quoted above. In the case reported in 1985 S C M R 382 the accused had been absconding for one year. The High Court granted them bail holding that it was a case of further inquiry as the co‑accused had already been acquitted on consideration of prosecution evidence. Their Lordships of the Supreme Court in that case also cancelled the bail of the accused persons on the ground of abscondence and observed as under:‑ "Long abscondence would not become irrelevant merely because the co‑accused concerned have, during his abscondence, been acquitted on consideration of the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf. However, it is correct that in some rare cases notwithstanding abscondence the accused might be released on bail; for example when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. and/or the so‑called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence." Their Lordships her, did not agree that it was a case of further inquiry keeping in view the factum of abscondence of the accused and made the following observations:‑ "The very factum of abscondence would ordinarily be led as additional evidence against the accused which item would be in addition to the evidence led during the trial of his co‑accused and it cannot at all even be urged that evidence of abscondence is not relevant in cases like the present one." The law laid down in the above cases clearly shows that unexplained abscondence of accused disentitles him from the right of bail under substantive law as well as under procedural law unless this abscondence is explained. If the contention of the learned counsel is accepted that abscondence would have no effect on his right to get bail under subsection (2) of section 497, Cr.P.C. then in fact there would be no effect of abscondence. Unless the case of accused person, who is accused of offence punishable with imprisonment for 10 years or above falls within subsection (2) of section 497, Cr.P.C., he is not entitled to bail whether he has absconded or not. The right of bail under subsection (2) of section 497, Cr.P.C. is a procedural right and the view of their Lordships of the Supreme Court is very clear that factum of unexplained abscondence disentitles him from this right also unless he satisfactorily explains the abscondence. Considering all the fact, and circumstances above I see no reason to revise or review the earlier decision of this Court rejecting previous bail application of the applicant. This application is also, therefore, rejected. M. Y. H.????????????????????????????????????????????????????????????????????????????????? Bail application rejected.