P L D 1989 Peshawar 10 (PLP)

Awal Gul v. Zawar Khan PLD 1985 SC 402 ref. Attaullah Khan for Petitioner. Q.M.Anwar for Accused‑Respondent. Mian Muhammad Ajmal, Additional, A.‑G. for the State. Date of hearing: 26th October, 1988. On the report lodged by the petitioner Mst. Zarizadgai on 1‑6‑1987 at 1215 hours with police station Suburb Peshawar, a case was registered vide F. I. R No.159 under section 302, read with 148/149, P.P. C. against the two respondents herein and three other accused namely one Jalat and his two sons Saifullah and Javed for the murder of Azad Khan decease by firing at him. In the course of Investigation, the accused‑respondents were not traceable on their en addresses. Consequently warrants of arrest under section 204, Code of Criminal Procedure were issued but were returned unserved with the report that the accused have gone into hiding and to evade their arrest were not traceable in their villages. The learned Magistrate Ist Class Peshawar there recorded the statement of Bakhtaj Khan, D. F. C., Police Station Suburb on oath and ordered to initiate proceedings under section 87, code Criminal Procedure against the accused including the respondents. This order presumably was passed on 5th July, 1987. 2‑ While the remaining three accused are still fugitive from law, the two respondents applied for their bail before arrest which was rejected and the accused were taken into custody on 15‑7‑1987.

3. The respondents, thereafter approached the local Magistrate Ist Class with a prayer to be released on bail which was declined on 20‑7‑1987. Their application to the learned Additional Sessions Judge, Peshawar however found favour with him and the accused‑respondents were released on bail vide his order dated 27‑7‑1987_ This application is filed by the petitioner to question the release of the respondents on bail with a prayer to recall the order of the learned Additional Sessions Judge.

4. I have heard Mr. Attaullah Khan, learned counsel for the petitioner, Qazi Muhammad Anwar, advocate, learned counsel for the respondents as also Mian Muhammad Ajmal, Additional Advocate‑General for the State.

5. On behalf of the petitioner it is urged that the accused respondents have been charged in the F.I.R. lodged in the Police Station with promptitude; that the prosecution witnesses, at least, support the prosecution version to the extent that the respondents armed with fire‑arm were present at the spot at the time of occurrence alongwith the absconding accused and as such have incurred vicarious liability for the commission of the offence, and lastly that the respondents have remained absconders from 1‑6‑1987, the date of occurrence, till 17‑7‑1987 and as such are not entitled to the concession of bail.

6. For the respondents, the learned counsel urged that the powers of Court under section 497 Code of Criminal Procedure are discretionary and unless an order is found to be illegal, improper or perverse, it will not merit interference with. He also submitted that applicability of the principle of vicarious liability of the accused‑respondents cannot be determined at the bail stage inasmuch as it is likely to prejudice the defence of the accused‑respondents and that the case of Awal Gul v Zawar Khan as reported in P L D 1985 S C 402, would not be applicable in the case of the respondents. They cannot be dubbed as absconders for the reason that within thirty days of the order of proclamation made under section 87 Code of Criminal Procedure, the respondents surrendered and, as a consequence of rejection of their bail application, they were arrested.

7. I have gone through the record of the case with valuable assistance of the learned counsel for the parties. I find that although the petitioner in the F.I.R. has charged the respondents, alongwith absconding accused, without any discrimination for effectively firing at her husband Azad Khan deceased yet later she seems to have joined the two eye‑witnesses mentioned in the F. I. R. namely Salim and Sher Afzal in that at the burial of wife of one Shamshad, the witnesses were present alongwith deceased at a little distance from the grave, that the people had started reaching there after offering "nimaz e-janaza" that meanwhile Jalat, Javed and Saifullah, absconding accused, armed with fire‑arms came there, that at the instance of Jalat his two sons named above firad at the deceased effectively and that the two respondents armed with fire‑arms were present with them and thereafter all of them decamped from the spot.

8. In principle, I agree with the learned counsel for the petitioner that no embargo is put on the powers of the Courts in determining the constructive liability of an accused person even at the bail stage A and on the basis of material placed before them, the Courts can justifiably go into the question whether case of constructive liability is made out or not. Reference may be made, in this behalf, to the cases Manzoor v State P L D 1972 S C 81, Nazar Muhammad v . State P L D 1978 SC 236 and Muhammad Rashid v State 1979 SCMR 92.

9. In the instant case as well, on the material placed on the record I am inclined to agree with the view that prima facie the principle of vicarious liability is attracted to the case of the accused respondents.

10. Next falls for consideration the question of abscondence, if any, and its entailing effect. I have given my serious thought to the respective submissions made by the learned counsel for the parties and, having gone through the relevant law as embodied in sections 204 and 87 Code of Criminal Procedure. I find that the word "abscond" or, for that matter, "abscondence", is not defined in the Code. According to Webster's New International English Dictionary, abscond means: (I) "to hide, withdraw, or be concealed", (2) "to depart clandestinely, to steal off and secrete one's self" It also means "hidden; concealed; secluded". Its etymological and ordinary sense is "to hide oneself" In either case he is stated to abscond.

11. The question as to from which point of time, after the occurrence, abscondence of the accused commences, section 87 (I) of the Code lays down that if any Court has reason to believe that any person against whom a warrant has been issued by it has "absconded" or is concealing himself or that the warrant cannot be executed, such Court may publish a written proclamation requiring, him to appear at a specified place and time before it. From this, it is evident that the proclamation is issued only if the Court has reasons ‑to believe, after issuing a warrant under section 204 of the Code and taking such evidence as is required to prove that the warrants so issued could not be served for the reason of an accused person's non‑availability and his evasion thereof; that he has absconded or was concealing himself with a view to avoid his arrest. In this context, it appears that the term "abscond" has been used in section 87 Code of Criminal Procedure in ordinary sense and not in any technical sense. It would, therefore, follow that in the event of a warrant under section 204 of the Code having been issued and the evidence having been recorded to the effect that the accused is concealing himself with the purpose of avoiding the service of such warrant, the accused shall be deemed to be an absconder in the eye of law.

12. From the record of this case, it is evident that a warrant under section 204 of the Code was issued against the respondents and the evidence of the search warrants revealed that they were not available on their given address and avoiding the service of the warrant. So it can be said with certainty that their conduct as such does fall within the mischief of the word "abscondence". This view finds support from cases reported in O . V . Forbes v . Emperor A I R (30) 1943 Oudh 325, State v. Girasia Bachubha A I R 1954 Saurashtra 39 and Bacha Said v. State P L D 1978 S C 102.

13. Viewing the matter in this context and applying the principle as enunciated in Awal Gul v . Zawar Khan reported in P L D 1985 SC 402, I have no hesitation in holding that the accused‑respondents, having become fugitive from law, had lost their normal rights granted F by procedural as also substantive law and their unexplained noticeable abscondence disentitled them to the concession of bail, notwithstanding the merits of their case, if any.

14. In the result I recall the order dated 27‑7‑1987 of the learned Additional Sessions Judge, Peshawar and cancel the bail granted to the respondents. They are present in Court, are taken into custody and sent to face their trial which shall be concluded as early as possible and preferably within a period of four months. M.A.K./648/P Bail cancelled.