2005 P Cr.L J 748

[Peshawar]

Before Shah Jehan Khan, J

BASHIRKHAN—Petitioner

versus

THE STATEthrough Advocate-General N.-W.F.P. and another—Respondents

CriminalMiscellaneous No.96 of 2005, decided on 21st February

2005.

Criminal Procedure Code (V of 1898)—

—-S.497—Penal Code (XLV of 1860), Ss. 302, 324, 427, 148 & 149—Bail,refusal of—Accused was granted ad interim bail, but he opted for abscondenceand did not turn up for confirmation of ad interim bail granted to him andconsequently said petition for bail before arrest was dismissed—Nojustifiable reason for his non-appearance in the trial of his co-accused hadbeen furnished by accused—Accused surrendered only after recording acquittalof his co-accused—Evidence recorded in absence of accused could not be usedagainst him and fate of such an accused was to be decided on the evidencerecorded in his presence—When evidence recorded in absence of an accusedcould not be used for his conviction, same could also not be used for thebenefit of that accused—Abscondence of accused could be either deliberate ordue to lack of knowledge about the registration of the case or could be due tothe fear of Investigating Agency or for any other just cause—Concession ofbail could be refused to an absconder when Court arrived at the conclusion ontentative assessment from available record, that abscondence was wilful andnoticeable—Accused could be allowed bail on making tentative assessment ofprosecution evidence and ignoring factum of abscondence for certainreasons—Practice of accused to abscond to wait for the result of co-accused strial and surrendered only when under trial co-accused earned acquittal, washighly deplorable—Such accused should not be allowed concession of bail whichwould amount to put premium on the mockery on law—Allowing concession of bailto a wilful absconder would create a sense of insecurity among people and causedisturbance in the society—No outlaw deserved concessionary relief whichcould be extended to those who surrendered before law—No universal ruleexisted to the effect that either a fugitive from law should be enlarged onbail or he should be refused bail in all circumstances—If an absconder wasfound not reasonably connected with commission of offence he could be extendedconcession of bail irrespective of his abscondence or acquittal of co-accused,but if prima facie an absconding accused was found reasonably connected withthe offence for capital sentence, abscondence could be taken into account as additional ground for refusal of bail—Accused, in the present case, did not refer at all to case of prosecution except grant of acquittal of co-accused which was of no use for accused—Accused was not entitled for grant of bail, incircumstances.

States. Malik Mukhtar Ahmad Awan 1991 SCMR 322; Rais Khan v. Said Hanif and another1979 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; MuhammadImranullah Khan v. The State 1995 PCR.LJ 167; 1999 YLR 2245 and Muhammad Sadiq s case PLD 1985 SC 182 ref.

MuhammadZahoorul Haq and Muhammad Anwar for Petitioner.

Muhammad Ayaz A.A.-G. for the State.

M.Mohibullah Kakakhel for the Complainant.

Date of hearing: 21st February 2005.

JUDGMENT

Petitioners charged vide F.I.R. No.36, dated 2-2-2003 for committing an offense punishable under sections 302/324/148/149/427, P.P.C. registered at PoliceStation Umarzai District Charsadda. On his arrest, the petitioner applied for post-arrest bail to the learned Judicial Magistrate which was dismissed through an 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. Petitioneralong with his sons namely Shakeel and Mansoor, Riaz Khan son of Aminullah, MasoodKhan 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 Sajidconstable, gunner of the complainant, and ineffective attempt at the life of Azim and Mudassar. Co-accused of the petitioner was tried and ultimately granted acquittal through an 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 still pending for hearing before the august Supreme Court of Pakistan.

3. I heard the learned counsel for the petitioner who contended the sole ground for grant of bail that co-accused of the petitioner has 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 the 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 absconding of the petitioner can not become a hurdle in releasing the petitioner on bail because mereabscondence will not warrant the conviction of the 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 MiscellaneousNo.1157 of 2000, decided on 2-10-2000, Criminal MiscellaneousNo.1033 of 2002 decided on 1-11-2002 and CriminalMiscellaneous No.249 of 2003 decided on 30-4-2004.

4. The learned counsel for a complainant while refuting the contention of counsel for the petitioner submitted that acquittal of-accused the 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 the absconding accused is connected with the commission of the offence and declared him proclaimed offender. Though mere abscondence for a short period or ignorable reasons would not be taken for adverse inference against the absconding accused but wilful unexplained absconding 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 absconding willdeprive the accused from the concession of bail. It is not universal that in all cases of abscondence fate of the accused of the purpose of bail would be considered on the basis of material placed before the Court and the factum of abscondence would not be a hurdle in granting bail to such an accused. In support of his submissions, he relied on Rais Khan v. Said Hanif and another 1979 SCMR90, Jan Muhammad v. The State 1978 SCMR 287, Ibrahim v. Hayat Gul and others1985 SCMR 382, Sardar v. The State PLD 1979 Pesh. 16, Muhammad Imranullah Khan. The State 1995 PCR.LJ 167; 1999 YLR 2245, an 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 the 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 thatabsconding 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 of2002 soon after registration of the case and he was granted ad-interim bail but the opted for absconding and did not turn up for confirmation with the result that the said petition for bail before the arrest was dismissed. No justifiablereason for his non-appearance in the trial of his co-accused has been furnished by the petitioner. The petitioner surrendered himself only after recording the 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 asproclaimed offender. A perpetual warrant of arrest is issued against him throughS.H.O. concerned with the direction that his name be enlisted in the registerof proclaimed offenders. The case property is kept intact until the arrest and trial of the absconding accused.

7. The evidence recorded in absence of an accused could not be used against him and the fate of such an accused is to be decided on the evidence recorded in his presence. When the evidence recorded in absence of an accused cannot be used for his conviction the same can also be used for the benefit of that accused. In this regard the case of Sardarv. 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 a 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 the charge of murder—Held: Not correct—Acceptance of contention amounts to examining of witnesses inpetitioner s case as a matter of mere formality or there being no need to examine such witnesses for the reason of such evidence has already been taken into consideration in the previous case and such course, not permissible inlaw—Bail application rejected.

8. The abscondence may be either deliberate or due to lack of knowledge about the registration of the case or maybe due to the fear of Investigating Agency or for any other just cause. The superior judiciary has time and again considered the factum of absconding 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 ofthe 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-accusedearned acquittal is highly deplorable and cannot be allowed, the concession ofbail which shall amount granting permission on the mockery of the law. Allowingconcession of bail to a wilful absconder would create a sense of insecurity among the people and disturbance in the society and offenders shall prefer abscondenceafter the commission of offence and shall surrender only when acquittal of under arrest accused is recorded. No outlaw deserves the concessionary relief which could be extended to those who surrender before the law.

9. The case-law cited by both the parties on the point under consideration need not be discussed in detail due to to distinguishable features. However, the case of State v. Malik Mukhtar AhmadAwan 1991 SCMR 322 is relied upon by both the parties, therefore, theconclusion drawn in the said judgment is reproduced below:–

“Itis unnecessary to examine the contentions raised by the learnedAdvocate-General at any length, for, in view of the finding of the High Courtthat there were no reasonable grounds for believing that the respondent has committed the offenses of which he was being accused, they amount to nothing more than mere technicalities. It may, however, be observed that it is not anabsolute rule that a fugitive should under no circumstances be enlarged on bailalthough, it may be added, abscondence does constitute a relevant factor whenexamining the question of bail. It is matter essentially of propriety and not of law that a person accused of an offense 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, indirectly entertaining the application of the respondent. The petition is dismissed.”

10. The aforesaid dictum reveals that it is not a 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 ofoffence could be extended the concession of bail irrespective of hisabscondence or acquittal of co-accused but if prima facie an absconding accusedis found reasonably connected with an offense punishable for capital sentence the abscondence can be taken into account as an 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 the 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 petitionercannot 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 heldas 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 the normal rights granted by procedural as also substantive law—Unexplained noticeable abscondence of accused, therefore, disentitles him to the concession of bail notwithstanding merits of case—Notwithstandingabscondence, 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 offense and earned acquittal while the petitioner in the cited judgment went in hiding. The acquittal order was also upheld inappeal where after the petitioner therein surrendered himself and was allowedbail by the Sessions Judge on the ground of further inquiry in view of theacquittal 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:–

Thefirst respondent thereupon applied in the High Court for cancellation of his bail and by order, dated 24-7-1978 his bail was canceled as it was of the opinion that the acquittal of the co-accused was not a valid reason to allowhim bail considering that he was charged in the dying declaration of Imran, that he had absconded for many years and lastly that there was ocularly evidenceimplicating 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 into 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 canceling the bail on the ground aforementioned.

12. In identical circumstances, this Bench has observed in Criminal MiscellaneousNo.l114 of 2004, decided on 8-11-2004 as follows:–

The petitioner deliberately avoided his arrest, although he was well-aware of thecharge 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 hisco-accused and when they earned acquittal the petitioner surrendered himself.The conduct of the petitioner speaks of his guilty mindedness and he cannot be given the benefit of his absconding on the sole ground of acquittal of the theco-accused.

13. ThisBench once again examined the principle for grant or refusal of bail to an accused who was guilty of deliberate absconding and surrendered only after the acquittal of co-accused and was allowed bail by the learned Sessions Judge. Itwas held that unexplained deliberate prolonged abscondence would disentitle anaccused for the concession of bail irrespective of acquittal earned by the theco-accused and the bail granted by the lower Court was recalled and the accusedwas 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 Bailpetition dismissed.