2003 PLP 1915 (YLR)

(1) Faraz Akram v. The State 1999 SCMR 1360; (2) Muhammad v. Fazal Baqi and another 1998 SCMR 454; (3) Muhammad Saddiq v. The State 1996 SCMR 1654. He has further stated that the co- accused Eido and Shahan were granted bail though they were absconders for three years and the case of the present applicant is similar to that of co-accused who were granted bail therefore, on the rule of consistency the applicant is also entitled for the concession of bail. He has relied upon Ali Nawaz v. The State 1995 PCr.LJ 1316 and Ibrahim v. Hayat Gul and others 1985 SCMR

382. On the other hand, learned Assistant Advocate-General has stated that the accused was absconder therefore, a fugitive from law is not entitled for any concession. He has further stated that the accused has not explained his abscondence for a period of 4 years therefore, he is not entitled for the concession of bail. He has relied upon the case of Sher Ali alias Sheri v. The State 1998 SCMR

190. We have given due consideration to, the arguments and find that the motive has been assigned to accused Sathi. In the F.I.R. no allegation has been levelled against the applicant of causing injury to the deceased or any of the P.Ws. The allegation against the present applicant is of making fire-arm shots in the air and that too while they were running away. In the similar circumstances, the Honourable Supreme Court of Pakistan in the case of Faraz Akram (supra) granted bail to the accused. The allegation against him was that he had made ineffective firing which stood disproved because no empty was recovered from the spot. It was further observed that the question of vicarious liability of accused could be determined at the time of trial. This authority is fully applicable to the present circumstances of this case as no empty of .12 bore gun was secured from the seen of offence as is clear from the Mashirnama of Wardat. As regards the abscondence of the applicant is concerned, two accused persons namely Eido and Shahan whose case was similar to that of the present applicant, were granted bail by the trial Court and they were also absconding for 3 years. The rule of consistency requires that the applicant should also be granted bail. The learned Assistant Advocate- General has stated that the accused being fugitive from law and Court has lost some normal rights of concession such as bail etc. therefore, he is not entitled for the concession of bail, even though he is entitled for bail on merits. There are no two opinions with regard to the proposition that a fugitive from law and Courts looses some normal rights granted by procedural and substantive law. The present applicant was absconder for four years. An accused person can be declared absconder if an order under subsection (3) of section 87, Cr.P.C. is passed by the Court, issuing proclamation under section 87, Cr.P.C., after complying the required formalities to the effect that proclamation was duly published on a specified date, then only he can be legally termed as absconder within the meaning of section 87, Cr.P.C. and thereafter such abscondence can be used as a corroborative piece of evidence against him. All other persons, if, they concealed themselves would be called fugitive from law or absconder but not falling within the provision of section 87, Cr.P.C. It is important to note that conduct of an accused person soon after the incident plays important role in determining the guilt of an accused person. It is pointed out that disappearance of a person named in a heinous crimes such as murder is natural phenomenon whether named rightly or wrongly. Some persons having guilty conscious abscond and some persons being innocent dragged in the case due to enmity also abscond. Reference is invited in a case of Sirajuddin v. Kala PLD 1964 SC 26 and at page 36 it has been observed as under:-- "A person who has been named as murderer, whether rightly or wrongly, usually makes himself scarce." While giving the conduct of various persons nominated in the F.I.R. after commission of offence, Justice Khalil-ur- Rehman Khan in his book Justice Monir's Principles and Digest, Qanoon-e-Shahadat published in 1995 Edition at pages 262 and 263 observed as under:-- "The conduct of a person in absconding after the commission of the offence is evidence to show that he was concerned in the offence, but it is usually a very small item in the evidence on which a conviction can be based. Absconding is equally consistent with innocence and guilt. It is a proper matter to be considered alongwith the other facts of the case, whether they bear upon guilt or upon innocence. It is well-known that different persons ere differently constituted, and that some accused persons, though innocent, deliberately abscond rather than face the ordeal of a criminal trial." The above observation of the learned author has also been relied upon by the Supreme Court of Pakistan in a case of Ameenullah v. State reported in PLD 1976 SC page

629. As such the abscondence are of two types; (1) abscondence having guilty conscious, (2) abscondence of innocent persons in order to save themselves from the excesses of investigation agencies because of lack of confidence in such agencies or to face the ordeal of criminal trial and so on so forth thus the cases of both the sets or accused persons are 'to be dealt with differently. There are two aspects of abscondence; (1) putting the prosecution in disadvantageous position during the course of investigation and trial, (2) creating corroborative and circumstantial evidence against himself. In the first case through abscondence an accused person destroys, conceals or allows any valuable evidence to disappear, such as, recovery of weapon, blood-stained clothes, discovery of dead body, or place of incident reducing the value of identification test and so on so forth and in latter case by abscondence creates corroborative and circumstantial evidence which can be used against him during trial, if an order under section 87(3), Cr.P.C. is passed by the Court. Therefore, different yardstick is to be made to treat both the sets of accused persons. If an accused person absconds, through which valuable piece of evidence is lost or concealed or allowed to be destroyed then he is not entitled for any concession but if an innocent person became fugitive from law or absconds then if it is found that his case falls within the provision of subsection (2) of section 497, Cr.P.C, (further enquiry into the guilt) then his case is to be considered differently. Reliance is placed in case of Nasij Gul v. Khalid Khan 1989 SCMR 899 at page 900, it has been observed as under:-- " .... Abscondence deprives an accused person of concession of bail unless he gets it as of right under subsection (2) of section 497, Criminal Procedure Code or the offence is bailable otherwise. " Thus in such a situation a simple abscondence of accused person should not come in the way of grant of bail to him as the said person would be entitled to bail under section 497(2), Cr.P.C. as a matter of right and not as a matter of concession. Reliance is also placed on a case of Sher Ali alias Sher v. The State reported in 1998 SCMR 190 and at page 203 it has been observed as under:-- "In our view, simpliciter an act of abscondence on the part of an accused person will not disentitle him to claim bail on the ground of statutory delay, which right accrues to him after he has been arrested and the statutory period mentioned in clause (a) or clause (b) of aforementioned third proviso, as the case may be expired. " In the present case as stated above the allegation against the present applicant is that he was present at the Wardat armed with gun and while running away he fired from his gun in the air. This stand of the prosecution has been disproved from the Mashirnama of Wardat as no empties of .12 bore gun were found available or secured from the Wardat, as such the case of the applicant requires further enquiry into the guilt of the accused as to whether he had committed non-bailable offence or not. (Section 497(2), Cr.P.C.). Thus mere abscondence of the accused in the present circumstances of case, will not disentitle him from the grant of bail when same can be claimed as a matter of right. Additionally he is also to be placed in the same footing as that of co-accused Eido and Shahan on the rule of consistency. After considering the material available on the record, we are of the considered view that the applicant is entitled for the concession of bail therefore, bail is granted to the applicant in the sum of Rs.200,000 on furnishing solvent surety with P.R. bond in the like amount to the satisfaction of trial Court. The application is allowed. Above are the reasons of our short orders dated 23-12-2003. H.B.T./A-450/K Bail granted.