2005 P Cr (PLP)

Petitioner is charged vide F.I.R. No.36, dated 2-2-2003 for committing an offence punishable under sections 302/324/148/149/427, P.P.C. registered at Police Station Umarzai District Charsadda. On his arrest the petitioner applied for post-arrest bail to the learned Judicial Magistrate which was dismissed through order dated 13-1-2005. The petitioner also failed to succeed in getting the concession of bail from the Court of learned Sessions Judge, Charsadda when his petition for bail was dismissed vide order, dated 29-1-2005. The petitioner has approached this Court with the bail petition in hand.

2. Petitioner along with his sons namely Shakeel and Mansoor, Riaz Khan son of Aminullah, Masood Khan son of Qayum and Nasir son of Dr. Younis were charged for the murder of Ayaz Khan and causing injury to the complainant Alamzeb, Farmanullah and Sajid constable, gunner of the complainant and ineffective attempt at the life of Azim and Mudassar. Co-accused of the petitioner were tried and ultimately granted acquittal through order dated 25-5-2004. The acquittal was questioned through Criminal Appeal No.452 of 2004 which was dismissed in limine by a Division Bench of this Court through order, dated 24-11-2004 and now Criminal P.L.A. 8 of 2005 filed by the complainant Alamzeb is till pending for hearing before the august Supreme Court of Pakistan.

3. I heard the learned counsel for petitioner who contended the sole ground for grant of bail that co-accused of petitioner have been granted acquittal ultimately and their acquittal was also not interfered with by this Court. Acquittal of the co-accused has brought the case of petitioner within the ambit of further inquiry. Keeping the petitioner behind the bars will serve no purpose as the same evidence has already been discarded by the trial Court as well as by this Court. The abscondence of petitioner cannot become hurdle in releasing the petitioner on bail because mere abscondence will not warrant the conviction of petitioner. In support of his submissions he relied upon State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322, unreported judgments of this Court in Criminal Miscellaneous No.181 of 1999, decided on 10-6-1999, Criminal Miscellaneous No.1157 of 2000, decided on 2-10-2000, Criminal Miscellaneous No.1033 of 2002 decided on 1-11-2002 and Criminal Miscellaneous No.249 of 2003 decided on 30-4-2004.

4. The learned counsel for complainant while refuting the contention of counsel for petitioner submitted that acquittal of co-accused has no bearing on the case against petitioner as the trial Court has observed in the acquittal order that prima facie the petitioner who was then absconding accused is connected with the commission of offence and declared him proclaimed offender. Though mere abscondence for a short period or ignorable for reasons would not be taken for adverse inference against the absconding accused but wilful unexplained abscondence will certainly have a bearing effect on the disposal of bail petition. It has repeatedly been observed by this Court as well as by the august Supreme Court of Pakistan that wilful abscondence will deprive the accused from the concession of bail. It is not universal that in all cases of abscondence fate of the accused for the purpose of bail would be considered on the basis of material placed before the Court and factum of abscondence would not be hurdle in granting bail to such an accused. In support of his submissions he relied on Rais Khan v. Said Hanif and another 1979 SCMR 90, Jan Muhammad v. The State 1978 SCMR 287, Ibrahim v. Hayat Gul and others 1985 SCMR 382, Sardar v. The State PLD 1979 Pesh. 16, Muhammad Imranullah Khan v. The State 1995 PCr.LJ 167; 1999 YLR 2245, and unreported judgment of this Bench in Criminal Miscellaneous No.1114 of 2204 decided on 8-11-2004.

5. The learned Deputy Advocate-General adopted the arguments of counsel for complainant and prayed for dismissal of this petition. He submitted that this bench while disposing of bail cancellation application No.876 of 2004 decided on 7-2-2005 has observed that absconding accused could not be allowed to get premium of his wilful abscondence from the acquittal of co-accused.

6. The petitioner had moved B.B.A. No.338 of 2002 soon after registration of the case and he was granted ad interim bail but the opted for abscondence and did not turn up for confirmation with the result that the said petition for bail before arrest was dismissed. No justifiable reason for his non-appearance in the trial of his co-accused has been furnished by the petitioner. The petitioner surrendered himself only after recording acquittal of co-accused. The order of acquittal of co-accused was concluded with the following finding qua the petitioner:-- However, a strong prima facie case exists against the absconding accused Bashir Khan and he is declared as proclaimed offender. Perpetual warrant of arrest be issued against him through S.H.O. concerned with the direction that his name be enlisted in the register of proclaimed offenders. The case property be kept intact till the arrest and trial of the absconding accused.

7. The evidence recorded in absence of an accused could not be used against him and fate of such an accused is to be decided on the evidence recorded in his presence. When the evidenced recorded in absence of an accused cannot be used for his conviction the same can also not be used for the benefit of that accused. In this regard the case of Sardar v. State PLD 1979 Pesh. 16 can advantageously be reproduced as below:-- Accused petitioner remaining outlaw after occurrence for about eight years and his trial to be held independently of previous trial resulting in acquittal of his co-accused

Contention that other accused in case having been acquitted and evidence being same in both cases, petitioner exonerated from charge of murder

Held: Not correct

Acceptance of contention amounts to examining of witnesses in petitioner s case as a matter of mere formality or there being no need to examine such witnesses for reason of such evidence having already been taken into consideration in previous case and such course not permissible in law

Bail application rejected.

8. The abscondence may be either deliberate or due to lack of knowledge about the registration of the case or may be due to the fear of Investigating Agency or for any other just cause. The superior judiciary has time and again considered the factum of abscondence in a number of cases. There are cases wherein concession of bail is refused to an absconder when the Court arrived at a conclusion on tentative assessment from the available record that abscondence was wilful and noticeable, however, there are cases wherein the accused are allowed bail on making tentative assessment of the prosecution evidence and ignoring the factum of abscondence for reasons. This practice that an accused went in deliberate abscondence to wait for the result of co-accused trial and surrender only when under-trial co-accused earned acquittal is highly deplorable and cannot be allowed, the concession of bail which shall amount granting permission on the mockery of law. Allowing concession of bail to a wilful absconder would create a sense of insecurity among the people and disturbance in the society and offenders shall prefer abscondence after the commission of offence and shall surrender only when acquittal of an under arrest accused is recorded. No outlaw deserves the concessionary relief which could be extended to those who surrender before law.

9. The case-law cited by both the parties on the point under consideration need not be discussed in detail due to distinguishable features. However, the case of State v. Malik Mukhtar Ahmad Awan 1991 SCMR 322 is relied upon by both the parties, therefore, the conclusion drawn in the said judgment is reproduced below:-- "It is unnecessary to examine the contentions raised by the learned Advocate-General at any length, for, in view of the finding of the High Court that there were no reasonable grounds for believing that the respondent has committed the offences of which he was being accused, they amount to nothing more than mere technicalities. It may, however, be observed that it is not an absolute rule that a fugitive should under no circumstances be enlarged on bail although, it may be added, abscondence does constitute a relevant factor when examining the question of bail. It is matter essentially of propriety and not of law that a person accused of an offence should in the first instance move the Court of Session for pre-arrest bail before approaching the High Court. Considering the circumstances of this case it is not possible to hold that the High Court made an error, requiring interference by this Court, in directly entertaining the application of the respondent. The petition is dismissed."

10. The aforesaid dictum reveals that it is not universal rule that either a fugitive from law should be enlarged on bail or he should be refused bail in all circumstances. The Court while considering the grant of bail should keep in mind the overall circumstances brought on record and if an absconder is found not reasonably connected with the commission of offence could be extended the concession of bail irrespective of his abscondence or acquittal of co-accused but if prima facie an absconding accused is found reasonably connected with an offence punishable for capital sentence the abscondence can be taken into account as additional ground for refusal of bail. The evidence recorded in the earlier trial of the co-accused can be utilized for confronting the witnesses at the trial of absconding accused who surrenders himself subsequently. In the case in hand learned counsel for petitioner did not refer at all to the case of prosecution except the grant of acquittal to the co-accused probably the learned counsel were clear in their mind that on that score the petitioner cannot be granted the concession of bail and agitated the sole ground of acquittal of co-accused but the same in my humble view is of no use for the petitioner at this stage. In Muhammad Sadiq s case PLD 1985 SC 182 it was held as follows:-- Abscondence of accused for a period of about six months

Effect of abscondence on bail

Fugitive from law and Court, held, 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 case

Notwithstanding abscondence, accused might be released on bail when accused is a woman, a child or a sick and infirm person or when accused otherwise becomes entitled to bail as of right under S.497(2), Cr.P.C. and or abscondence is satisfactorily explained by accused so as to establish that in reality it did not amount to abscondence.

11. The case of Raees Khan v. Said Hanif and others 1979 SCMR 90 directly reflects upon the question involved herein. Four brothers were charged for the murder and there was a counter-version as well. One of the accused was tried for the offence and earned acquittal while petitioner in the cited judgment went in hiding. The acquittal order was also upheld in appeal where after the petitioner therein surrendered himself and was allowed bail by the Sessions Judge on the ground of further inquiry in view of the acquittal of one of the co-accused. The bail granting order was recalled by the High Court and thus, the matter for grant of bail was agitated before the august Supreme Court of Pakistan and the following conclusion was drawn:-- The first respondent, thereupon applied in the High Court for cancellation of his bail and by order, dated 24-7-1978 his bail was cancelled as it was of the opinion that the acquittal of the co-accused was not a valid reason to allow him bail considering that he was charged in the dying declaration of Imran, that he had absconded for many years and lastly that there was ocular evidence implicating him. In seeking leave to appeal the same ground was urged as was taken before the learned Sessions Judge for allowing him bail but this ground cannot, in our opinion, be pressed in to service as the acquittal of the co-accused would not be a bar for the trial Court to reappraise the evidence led before it by the prosecution. On this view of the matter the High Court was correct in cancelling the bail on the ground aforementioned.

12. In identical circumstances this Bench has observed in Criminal Miscellaneous No.l114 of 2004, decided on 8-11-2004 as follows:-- The petitioner deliberately avoided his arrest, although he was well-aware of the charge against him as his father and Riaz Hussain co-accused were arrested and put on trial. The petitioner was waiting for the result of the trial of his co-accused and when they earned acquittal the petitioner surrendered himself. The conduct of petitioner speaks of his guilty mindedness and he cannot be given benefit of his abscondence on the sole ground of acquittal of the co-accused.

13. This Bench once again examined the principle for grant or refusal of bail to an accused who was guilty of deliberate abscondence and surrendered only after the acquittal of co-accused and was allowed bail by the learned Sessions Judge. It was held that unexplained deliberate prolonged abscondence would disentitle an accused for the concession of bail irrespective of acquittal earned by the co-accused and the bail granted by the lower Court was recalled and the accused was taken into custody to face the trial.

14. In view of the aforesaid discussion I find the petitioner not entitled for the grant of bail. This petition for bail is, therefore, dismissed. H.B.T./328/P Bail petition dismissed.