P L D 1993 Supreme Court (AJ&K) 1 (PLP)

Muhammad Yunus Surakhvi, Advocate for Appellants. Ch. Muhammad Taj, Advocate for Respondent. Date of hearing: 22nd December, 1992. BASHARAT AHMAD SHAIKH, J.‑‑‑By this appeal the heirs of one Muhammad Tufail, who was allegedly murdered on 25th of April 1990, seek cancellation of pre‑arrest bail granted to respondent Muhammad Asghar by Zilaee Adalat on 16th of February 1992. Their attempt to get the aforesaid order vacated failed when their petition for cancellation of bail was rejected by the Shariat Court on 25th of July 1992. The allegation against respondent Muhammad Asghar is that he fired from his .12 bore gun which resulted in the death of Muhammad Tufail. He is thus the principal accused.

2. The facts, as narrated at the bar, are that although the respondent was named in the F.I.R. and was wanted by the Police he could not be arrested for some months. After more than five months he moved an application for pre arrest bail on 4th of October, 1990 before the Additional Zilaee Adalat at Bhimber. He was granted interim bail but the Court declined to confirm it. In its order passed on 18th of November, 1990 the said Court took note of the nature of the allegations and other: connected matters and reached the conclusion that the accused was not entitled to concession of pre‑arrest bail. On the date on which the order was to be announced Muhammad Asghar was not present before the Court and the order on the bail application was announced in his absence. A period of more than six months elapsed after the rejection of the bail application but Muhammad Asghar remained at large. On 9th of June 1991 he appeared before the Shariat Court with an application for pre‑arrest bail. He was granted ad‑interim bail and was directed to move the Zilaee Adalat Mirpur, which, on 5th of June, 1991, granted pre‑arrest bail to Muhammad Asghar. It was consequently confirmed on 14th of June, 1991.

3. Mr. Muhammad Yunus Surakhvi, the learned counsel for the heirs of the deceased, vehemently contended that respondent Muhammad Asghar was a fugitive from law from 5th of April 1990 till 4th of October, 1990 when he moved his bail application at Bhimber' and subsequently from 18th of November 1990 to 9th June 1991 and was thus not entitled to concession of bail. He also alternatively submitted that at least pre‑arrest bail could not have been granted to the respondent. He also contended that in any case the respondent is the principal accused in the murder case under reference and there are a number of eye‑witnesses who support the prosecution version. There is other supporting evidence also. Mr. Muhammad Yunus Surakhvi submitted that the learned Judge in the Shariat Court while disposing of the application for bail has entered into a detailed examination of the merits of the case and has expressed opinion on a number of matters in contravention of the settled principles on the subject. He took us through the judgment of the Court and commended with some detail on the facts of the case which, in his estimation, belied the conclusions drawn by the Shariat Court. The learned counsel also cited a number of authorities in support of his contentions.

4. Ch. Muhammad Taj, the learned counsel for the respondent, vehemently supported the conclusions drawn by the Shariat Court. He submitted that facts of the case were such that the respondent was entitled to pre‑arrest bail. He pointed out that the accused was stated to have fired from a distance of more than 200 yards with a .12 bore gun while there was blackening on the body of the deceased in the case. He contended that the prosecution case thus could not be believed because from a .12 bore gun a person cannot be fatally injured and that presence of blackening belied the allegation that it was the respondent who fired on the deceased because there could be no blackening from such along distance. Ch. Muhammad Taj also submitted that admittedly there was ruing from both the sides‑and that the group to which respondent Muhammad Asghar belongs also filed a report at the Police Station which, according to the learned counsel, shows that there is a counter version in the case. The learned counsel vehemently contended that it was a case of further inquiry. He also submitted that absconsion is a question of fact which has yet to be gone into.

5. Although we have heard in‑depth arguments addressed by the learned counsel for the parties, we have reached the conclusion that we need not to go into all the points raised before us because there are two factors which clearly disentitled the respondent from the concession of bail. We have already observed that respondent Muhammad Asghar was duly named in the F.I.R. but he did not court arrest. Then he applied for bail before arrest on 4th of October, 1990 but when his pre‑arrest bail was not confirmed he did not surrender himself to the Police. There might have been some explanation about the period prior to the making of application at Bhimber but there can be no doubt that after the rejection of his bail from the Court at Bhimber the respondent knew that he was wanted by the Police but still he did not court his arrest and thus became a fugitive from law. In this view of the matter when he again appeared in a Court of law his prayer for bail should have been straightaway declined on the ground that he was a fugitive from law. May be that when the respondent moved his pre‑arrest bail on 9th of June 1991 the Shariat Court did not come to know that his previous application for bail had been rejected but this fact was duly argued before the Zilaee Adalat and subsequently before the Shariat Court but this aspect of the matter was brushed aside for insubstantial reasons. The aforementioned Courts should have followed the rule that concession of bail cannot be extended to an absconder.

6. The other factor which goes against the respondent is that bail application moved by him was rejected by the Additional Zilaee Adalat at Bhimber on 18th of November 1990. This order was not challenged before the Shariat Court. Thus the order attained finality and could not be re‑opened by moving a fresh application for bail. Therefore, Zilaee Adalat at Mirpur fell in error in granting pre‑arrest bail to the respondent. The order of the Shariat Court likewise suffers from the same legal infirmity. This point was urged before the Shariat Court but it was observed in the order under appeal that the learned members of the Additional Zilaee Adalat at Bhimber while rejecting the application did not consider the point that the gun allegedly used in the incident was in possession of the prosecution but there was nothing on the record to link the gun with the offence. These observations do not appear to us as weighty. Mr. Muhammad Yunus Surakhvi vehemently contended that when bail application was decided the report of the expert had not be received but even if we assume the aforementioned observation of the Shariat Court as correct the mere fact that this factor was not considered by the Court at Bhimber does not justify the re‑opening of a judgment which had attained finality.

7. The principles for grant or refusal of bail are too well‑known and need not be repeated here, but since we are otherwise vacating the order of the Shariat Court we need not go into the contentions raised by Mr. Muhammad Yunus Surakhvi that in the judgment of the Shariat Court the merits of the case have been commented upon in such a way that the subsequent proceedings in the case would be adversely prejudiced. As a result of the foregoing we accept the appeal, set aside the order of the Shariat Court passed on 25th July 1992 and the order passed by the Zilaee Adalat on 15th of June, 1991. Respondent's bail bond and surety bonds are hereby cancelled. After recording of the statements of some eye‑witnesses the trial Court shall be at liberty to consider the bail matter of respondent Muhammad Asghar. N.H.Q./364/S.C.A. Bail cancelled.