1995 P Cr (PLP)

A.D.J.I (Central) 17(3), E.H.O. 181/93 Clifton (C.I.A.) A.D.J.I (South) 399/402, P.P.C. 185/93 Clifton (C.I.A.) J.M.II (South) 13‑D, A.O. 96/94 Aram Bagh A.C.M. (C.I.A.) 13‑D, A.O. 333/93 N.Nazimabad A.C.M.11(C.IA.) 14, E.H.O. This detail was shocking for me because I had been given an impression of only three cases pending against the accused. (b) The Investigating Officer of the cases, Inspector, Malik Rab Nawaz, disclosed that the present applicant and co‑accused Raees had absconded from police custody on 1‑12‑1993 when they were brought from Central Prison, Karachi to attend cases in the City Courts. He produced the copy of F.I.R. No.184/93, dated 1‑12‑1993 under sections 224‑225, 225‑A, P.P.C. lodged by S.I. Muhammad Sharif, Incharge Lock‑up City Court with charge‑sheet No. 96/93, dated 18‑12‑1993, according to which P.C. Syed Zahoorul Hassan No.4292 and P.C. Ikramullah No.6291 were arrested and challaned due to absconding of the accused. The record produced by the Jail authorities also confirmed this reality that the applicant was sent from Central Prison, Karachi on 1‑12‑1993 to the City Courts but was not brought back to the prison on that day as he was reported to have absconded. According to the statement of Investigating Officer the accused/applicant was re‑arrested on 11‑7‑1994 i.e. after about 7 months but the co‑accused Raees was still absconding. It has been alleged verbally by the Investigating Officer that according to the information of the police the absconding accused, Raees is very active in committing different offences and in spite of their hectic efforts, he has not been apprehended till date. (c) The diary sheets received from the Court of 1st Additional Sessions Judge, Karachi clearly show that the Court sent orders to the Jail authorities and even the show‑cause notice to produce accused/applicant, as the Court had no knowledge of abscondence but the Jail authorities remained enjoying their sound sleep shamelessly and kept every thing hidden from the Court about absconding of the accused. It was after the arrest of the applicant that he was produced in the Court on 18‑7‑1994 and was remanded to Jail custody with order of his production on 2p‑7‑1994 i.e. after two days but in spite of such order he was never produced by the Jail authorities in the Court except on 22‑9‑1994. It is notable that the matter was adjourned by the trial Court after 18‑7‑1994 on different dates for about nine times during the period starting from 18‑7‑1994 and ending on 22‑9‑1994. The trial Court went on sending the letters to the Jail authorities for the production of the applicant but the Jail authorities continued disrespecting the orders of the Court. This shocking conduct of the Jail authorities cannot be and should not be ignored by any Court, It was on account of the unappreciable conduct of the Jail authorities that the Court could not start any proceeding against the accused/applicant. It would have been most appreciable if the Court had taken every serious possible action permitted by law against the Jail authorities on account of ignoring the orders of the Court under their routine pretexts that they had no escort and prison van. Such pretext could be believed true for one or two hearings, but its continuation for more than 9 dates was sufficient to presume that the Jail authorities were telling lies.

4. The prosecution stories as narrated by the complainants in all the three bail applications can be summarised as under:‑‑ Bail Application No.765 of 1994: (a) This application is related to a case arising out of an F.I.R. No.214/1993 registered at Police Station North Nazimabad on 19‑6‑1993 lodged by Syed Tahir Sajjad who stated that at about 16‑00 hours (day time) he was sleeping in his house alongwith his family members when three persons, all armed with pistols entered his house. They confined the members of the family in a room and after taking the keys from his son Sajjad robbed the house by taking away valuable articles. The details of those articles as well as the descriptions of the accused persons has been mentioned in detail as stated by the complainant in the F.I.R. The complainant also stated that the accused can be identified by his son Muhammad Sajjad, driver Syed Kamal and his Cook Shafiq too. Bail Application No.766 of 1994: (b) This application is related to a case arising out of an F.I.R. No.315/1993 registered at ' Police Station North Nazimabad on 23‑9‑1993 lodged by Haji Ferozuddin who stated that he, alongwith his son Dr. Nisar and nephew Muhammad Aamir, was present in his house on 23‑9‑1993 when at about 12‑20 hours (day time) four persons armed with weapons entered into his house and after threatening them to remain silent, broke open almirah and robbed the house by taking away valuable articles. Description of the accused persons has been mentioned in detail by the complainant with this claim that the accused could be identified by the family members. The articles taken away by the accused persons were consisting of gold ornaments, prize bonds and cash but the detail was stated to be submitted later on. Criminal Bail Application No.767 of 1994: (c) This application is related to a case arising out of an F.I.R. No.232/1993 registered at Police Station North Nazimabad on 8‑7‑1990 lodged by Muhammad Sikandar Ali who stated that at about 14‑15 hours (day time), when he reached his house he found Maroof Ali and his brother‑in‑law Asif Malik standing at the gate of his house. They informed that dacoity was committed in his house and the whole house had been robbed. The complainant entered his house and found his wife, sisters and sisters‑in‑law weeping. They informed that at about 13‑00 hours, when they were taking meal in the drawing room, four armed persons armed with pistols or revolvers climbed over the walls of the bungalow. One of them kept the family members silent on the point of his weapon and the remaining three collected all the valuable articles of the house. The detail of the robbed articles as well as descriptions of accused was described in detail in the F.I.R. It is thus evident from the F.I.Rs that all the incidents took place during day time in similar manner. The descriptions of accused persons is quite similar. The incidents took place in the same area i.e. within the jurisdiction of North Nazimabad Police Station successively in the months of June, July and then in September, 1994. The present accused/applicant, after his arrest, was shown accused in all the three heinous crimes detailed above.

5. The learned counsel argued all the three bail applications of the accused mainly on the following grounds:‑‑ (i) Two co‑accused namely Nizam Shafi alias Sohail, Obaidullah alias Irfan were granted bail by this Court. As the case of the applicant is on better footing, hence he is also entitled to be released on bail. (ii) The allegations of abscondence against the accused is totally baseless because he never absconded during his custody. (iii) Even if it is presumed that the accused had absconded it does not deprive him from being released on bail because abscondence is not a ground to refuse bail in each and every case. Besides the abovementioned submissions, the learned counsel for the applicant tried to give a political cover to the cases of the applicant by stating in the applications that: "It appears that on some political pressure, the applicant was implicated".

6. Before taking the main grounds urged by the learned counsel, I would like to deal with the last contention relating so‑called alleged political pressure. It must not be out of memory of the learned counsel that there was no politically sound established Government in Pakistan from the months of June, 1993 till September, 1993 during which the incidents of dacoity took place and the applicant was alleged to be involved in these cases. It is important to note that the complainant Haji Ferozuddin had identified the photographs of the applicant as one of the robbers at the time of lodging F.I.R. in the months of September, 1994 when the country was being ruled by an imported Prime Minister namely Mr. Moeen Qureshi. Under such circumstances only those people can take such stand who have no knowledge of political history. Even otherwise such political worker blamed with such allegations cannot be embraced by the political party unless such party or organisation believes in terrorism. Hence painting the character picture of such accused with political colours by an advocate of such experience cannot be appreciated by the Court. If the accused is personally known to the learned counsel, as one of the activists of any organisation, then such person can get benefit when such organisation shares powers with some undemocratic Government for establishing dictatorship with such workers. On account of these reasons, I have no reason to believe that the political plea taken by the learned counsel has any sound footings.

7. Apparently weighty averments advanced by the learned counsel for the applicant in support of his other grounds proved feeble when weighed in the balance of admitted realities. On 12‑9‑1994 when the present applications were fixed for hearing, the learned counsel had alleged that the police had misappropriated the property owned by the accused after the same was taken away from his house under section 550, Cr.P.C. hence an impression was given to me that the police robbed the house of a citizen by levelling false allegations against the applicant to treat him a dacoit. Nothing was mentioned by the learned counsel on that day about the abscondence of the accused from police custody. On 13‑9‑1994, when the Investigating Officer of the cases, Inspector Malik Rab Nawaz, disclosed that the applicant had absconded on 1‑12‑1993 alongwith co‑accused Raees and was rearrested after about seven months, it was only then that the learned counsel stated that he had mentioned this fact in the bail applications. The perusal of the applications brought into light only the following three lines:‑‑ "That although the applicant was falsely shown to have absconded but even then he has already been admitted to bail in that case." Except these three lines, no other detail was given about the abscondence of the applicant in any of the bail applications. However, the order of the Court, as mentioned in the above‑quoted lines, was not brought on record, if the applicant was granted bail by any Court in that case. In spite of such way of arguments advanced by the learned counsel by not disclosing the fact of abscondence in detail, I would not like to discuss the details of the cases because it may damage the case of the prosecution or of the applicant at bail stage to prejudice the cause of justice. However, even the tentative assessment of the cases is also not possible to be determined in vacuum unless the submissions made by the learned counsel are taken into consideration. The fact of abscondence is reflected from the record available before This Court with the following backgrounds. (a) After the arrest of the applicant alongwith three others accused namely Nizam Shafi alias Sohail, Obaidullah alias Irfan and Raees, bail applications were moved before the trial Court in all the three cases but the same were rejected in November, 1993. After this rejection, the applicant and co‑accused Races absconded on 1‑12‑1993 when they were brought from the Central Prison to City Courts. On account of their abscondence, S.I. Muhammad Sharif, Incharge, Lock up City Courts lodged an F.I.R. No.184/93 on the same day at Risala Police Station under sections 224, 225, 225‑A, P.P.C. and two Police Constables, Syed Zahoorul Hassan and Ikramullah were arrested and challaned. The record produced by the Jail authorities also confirmed the reality of abscondence. In spite of these facts on record, the learned counsel for the applicant states that the applicant/accused never absconded and the story of abscondence is a concocted story. If it had been so the learned counsel would not have mentioned in the present applications in the three quoted lines that "he has already been admitted to bail in that case". (b) After rejections of the bail applications in November co‑accused Syed Nizam Shafi alias Sohail moved Bail Application No.45 of 1994 before the High Court of Sindh and bail was granted to him on 6‑2‑1994 on the point that no property was secured at his instance. After his release, another co‑accused Obaidullah alias Irfan approached the High Court with his Bail Application No.189/1994 on the same grounds and the High Court granted to him bail on 6‑3‑1994. If the applicant and co‑accused had not absconded on 1‑12‑1993, they would have certainly moved their bail applications before the High Court after the release order of co‑accused Nizam Shafi and of Obaidullah on 6‑2‑1994 and 6‑3‑1994 respectively. Hence it can be presumed with certainty that the applicant and co‑accused Races were not in custody at that time and the allegation of abscondence seems to be based on truth. It is notable that the police constables were arrested and challaned on account of the abscondence of the applicant and the co- accused Races who is still at large. If the applicant had not absconded, then it could be claimed by the learned counsel that accused Races had also not absconded, but the learned counsel did not like to touch the question of abscondence of co‑accused Races. According to the prosecution the applicant was arrested on 11‑7‑1994 and fresh (2nd) bail application were moved on/about 16‑8‑1994 i.e. after about one month of his arrest, in all the three cases. Copy of one of the applications moved before the trial Court is on the record which shows that the facts of abscondence and its denial was not mentioned therein. But the order of rejection passed by the trial Court shows that the learned A.P.P. had vehemently opposed the said bail application by disclosing the details of abscondence of the applicant and the learned 1st Additional Sessions Judge rejected the bail application after mentioning this important aspect of the case regarding the conduct of the accused. Perhaps it was the reason that the fact of abscondence was given in the bail applications moved before the High Court but without any detail. In the light of all these facts, which remained un-rebutted on the face of the record, it was astonishing for me to hear from the learned counsel that the accused had never absconded. Lodging of the F.I.R. in Risala Police Station, arrest of the police constables submission of challan against those constables, confirmation of abscondence from Jail record, avoiding to move applications for bail before the High Court after the release of two co‑accused (if the applicant had not absconded), abscondence of co‑accused Races till date etc. are the pieces of evidence about the abscondence of the applicant and 8 the learned counsel for the applicant was unable to shatter any of the same. The learned counsel, then changed his stand and urged that the bail was granted to the applicant in that case and moreover an accused cannot be deprived of the right of bail on the ground of abscondence. No doubt an absconding accused may not be, refused bail in certain circumstances. For example if an accused remains absent in any case from the very first day of an incident and after his arrest he establishes that he had no knowledge about the case or he had knowledge but it was beyond his control to appear before the Court as he was under arrest in any other case or was out of country or was under preventive detention or there were other reasons on the basis of which he could not be considered absconder, then such accused must not be refused bail due to the so‑called abscondence. Similarly the principle of "refusing bail C to the absconder" may not be applied strictly in the case of all those persons who are mentioned in the first proviso of section 497(1), Cr.P.C. Even if the case of an accused is such that there are not reasonable grounds to believe that the accused has committed the non‑bailable offence and there are sufficient grounds for further inquiry into his guilt, then in such case the principle of abscondence should not be applied strictly to refuse bail to an accused because bail becomes a right of an accused under section 497(2), Cr.P.C. in such circumstances. But the case of the present applicant is dark on this point. He was already in custody of the police. His bail application had been rejected. He was rearrested after about 7 months. The co‑accused Races, who absconded with him, is still at large. The other two co‑accused, who were granted bail also absconded after their release. It is now settled law that noticeable abscondence of a person disentitles the person to concession of bail notwithstanding the merits of the case because a fugitive from law and Courts loses some of the normal rights granted by the procedural or substantive law. Reference, in this context, can be made to a series of cases reported in 1979 S C M R 90; P L D 1981 SC 93; P L D 1981 SC 265; 1983 S C M R 978; P L D 1985 SC 402; PLD 1985SC182;1985 SCMR 382;1985 SCMR1166and1991SCMR322.

9. The next contention of the learned Advocate for the applicant is that the co‑accused was granted bail by the High Court, therefore, the present applicant is also entitled to the concession of bail because his case is on better footing than the cases of Nizam Shafi and Obaidullah. I have no doubt in my mind that the contention of the learned counsel is totally misconceived. No doubt the bail was granted to the two co‑accused but they had not absconded at that time. They disappeared after they were released while the present applicant had approached the trial Court as well as the High Court after committing the offence of abscondence especially from police custody due to which the police constables were booked to face trial. Similarly the names of those two co‑accused were not mentioned in the F.I.R. while the complainant Haji Ferozuddin had identified the photograph of the present applicant at the time of lodging F.I.R. No.315/93 on 23‑9‑1993 by saying: Besides the above pieces of evidence the alleged stolen property was recovered from the house of the applicant while the order passed by the High Court clearly mentions that no case property was recovered at the instance of those co‑accused who were granted bail by the High Court. Even otherwise the acquittal of any co‑accused cannot be a ground to grant of bail to the other co‑ G accused because the case of each accused has to be judged on the merits of evidence collected against each accused.

10. Lastly, the learned counsel has stressed that no case was fixed before any Court on 1‑12‑1993, hence it cannot be presumed that the applicant was brought from the Central Prison, Karachi to the City Court on that date. I think that the learned counsel being an ex‑Sessions Judge, is fully aware of the reality that, on account of corruption prevailing in different corners of our judicial systems, several accused are brought to the City Court daily without hearing of their cases while large number of poor accused are not produced in the Court in spite of the orders of their production which are sent by the Court to the Jail authorities. The stand taken by the learned counsel is sufficient to expose the Jail authorities. Because if the accused absconded on 1‑12‑1993, as claimed by the Jail authorities, although he was not required to be produced in any Court, as claimed by the learned counsel, then there remains no doubt in my mind that the accused absconded on that day in connivance with the Jail authorities. On account of the allegations levelled by the learned counsel, I have been left with no other alternative but to order the D.I.‑G., Prisons to hold inquiry on this issue and submit his report on or before 15th of November, 1994 before this Court without fail. The copy of this order be sent to the D.I.‑G., Prisons for this purpose.

11. In presence of the reasons listed above and keeping in view all the facts and circumstances, the request of the applicant for releasing him on bail cannot be acceded to with the result that the bail is refused to him in all the three cases. N.H.Q./M‑1997/K Bail refused.