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Criminal Revision Petition No. 1 of 1986, decided on 21st September, 1986.

(Revision petition against the order of Shariat Court of Azad Jammu and Kashmir, dated 7‑8‑1986).

‑‑‑S. 497‑‑Bail, grant of‑‑Discretion exercised by Court in favour of petitioners, palpably erroneous and based on a fact not in existence at all‑‑ Interference by appellate. Court with such order, held, unexceptionable, in circumstance.

Ibrahim v. Hayat Gul and others 1986 S C M R 382 ref.

‑‑‑S. 497‑‑Bail, grant of‑‑Discretion exercised by Court not shown to be perverse or capricious‑‑Supreme Court, held, would not ordinarily interfere with exercise of such discretion.

Shabir Hussain Shah v. State P L D 1986 S C (A J & K) 105 ref.

Abdul Rashid Abbasi for Petitioners.

Syed Manzoor Hussain Gilani, A.‑G. for the State.

Kh. Shahad Ahmed for Respondent No. 2.

The facts which form the background of this revision petition are; that a report was lodged at Police Station Panjgran by Khani Zaman (complainant) non‑petitioner No.2 herein on 24‑7‑1986 alleging that the petitioners Arif Majeed son of Abdul Majeed and Nasir son of Ghulam Rasul identified by one Kaloo son of Abdullah Chowkidar and some others trespassed into the house of his brother Shah Zaman during the night between 21st and 22nd July 1986 and stolen various articles of the value of rupees more than 51 thousand. The stolen articles belonged to Shah Zaman the brother of the complainant. The petitioners‑accused were arrested by the police on 25‑7‑1986. They were later on released on bail by the District Criminal Court (Poonch) on 29‑7‑1986.

Khani Zaman went up in appeal before the Shariat Court. learned single Judge of the Shariat Court vide order, dated 7‑B‑1986 felt advised to vacate the order of bail granted by the District Criminal Court vide judgment, dated 29‑7‑1986.

This revision petition seeks the reversal of the said order the Shariat Court inter alia on the grounds:‑

(i) that there was no substance to interfere with the discretion, exercised by the District Criminal Court, in allowing bail to the petitioners;

(ii) that it is a case of further inquiry and the learned Judge in the Shariat Court fell in error to cancel the bail;

(iii) that despite the fact that the petitioners remained in police custody for five days no recovery was effected at their instance and, therefore, the cancellation of bail by the Shariat Court is not justified.

The learned Advocate‑General opposed the acceptance of the revision petition on the ground that the learned District Criminal Court allowed bail on misreading of the statement of Kaloo recorded by the Police under section 161, Cr.P.C. in saying that Kaloo did not recognize the petitioners while the reading of his statement shows that he recognized the petitioners through their voices. He also submits that article worth Rs.51,640, are to be recovered from the petitioners.

It is significant that after cancellation order made by the Shariat Court the petitioners‑accused had not surrendered to the investigating agency and absconded. The effect of abscondance of the petitioners accused after the cancellation of bail is that they had become fugitive from law and Court. This very conduct of the petitioners disentitle them to some of the normal rights including that of right of bail granted by the procedural and substantive law. This abscondance is unexplained. Such an unexplained noticeable abscondance disentitles a person to the concession of bail notwithstanding the merits of the case. No doubt there are some cases wherein notwithstanding abscondance the accused might be released on bail; for example when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. or the abscondance is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondance. Our view gets due support in various pronouncements of the Supreme Court of Pakistan.

In the circumstances referred to above it is not necessary for us to examine at length the arguments regarding further inquiry etc. as it might prejudice the decision of the trial Court as a result of trial which the respondent is going to face. Suffice it however, to observe that so far as the believing or not believing a certain piece of evidence is concerned the trial Court would be entitled to form its own opinion. Moreover, the possibility of additional evidence as observed by Muhammad Afzal Zullah, J. in Ibrahim v. Hayat Gul and others 1986 SCMR 382 which may be examined at the instance of the parties or the Court at the trial can also not be excluded on account of any bar by any law or principle. This factor also strengthens our view.

We also do not find any reason as to why the arrest of the petitioners‑accused was not quoted by the police after the cancellation order of the bail made by the Shariat Court. The police diaries and the other record examined by us conveys an impression that the police has shown culpable negligence in this case during the investigation and thereafter in not taking effective steps for the arrest of the petitioners. The Inspector‑General of Police, we hope will take due notice of this fact.

We have otherwise also looked into the judgment passed by the Shariat Court. The Shariat Court has exercised the discretion in a legal fashion to disallow bail which was allowed to the petitioners by the District Criminal Court on the basis of misreading of the evidence of Kaloo recorded under section 161, Cr.P.C. The District Criminal Court as said earlier opined that Kaloo did not recognize the petitioners while his statement as pointed out by the Shariat Court enters that he did recognize the petitioners. The discretion thus exercised by the District Criminal Court was palpably erroneous based on a fact which was not in existence at all Such a discretion always needs interference by the Shariat Court.

It is now settled law, as held in 'Shabir Hussain Shah v. State P L D 1986 SC (A J & K) 105, that grant or refusal of bail by the Shariat Court or the High Court is primarily in the discretion of those Courts and the Supreme Court would not ordinarily interfere with the exercise of such discretion unless it is shown that the discretion has been exercised in a perverse or capricious manner. Such a situation is not available in this case and, 'therefore, the order of the Shariat Court needs no interference.

In view of the above we see no force in this revision petition which is hereby dismissed. This order is in continuation of our short order passed on 14‑9‑1986. A copy of this Order shall be sent to the Inspector‑General of Police.

S.G.D. Revision dismissed

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