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Bail Application No.38 of 1986, decided on 21st April, 1986.

-----S. 497 (1), proviso 3--Penal Code (XLV of 1860), S. 419/420/468/471--Bail, grant of--Statutory delay--Accused, a previous convict- Continuously committing similar offences year after year and likely to repeat offences against Banks--Accused remained absconding for 31 years and remaining fugitive from justice for more- than one year- Accused, being hardened and dangerous criminal and previous convict, third proviso to S.497 (1). Cr.P.C.: held, would not be applicable to him by force of a proviso to said third proviso--Accused was, therefore, not entitled to grant of bail notwithstanding his continuous detention for more than one year.

---S. 497--Penal Code (XLV of 1860), S.419/420/468/471--Bail--Mere fact that co-accused of accused/ petitioner is on bail, held, no ground for grant of bail to him.

Muhammad Iqbal v. State P L D 1963 Lah. 279 ref.

Mushtaq Raj for Petitioner.

Mian Qamar-uz-Zaman and Nazir A. Ghazi, Public Prosecutor for the State.

This is the third application by accused-petitioner Samual Shad, for the grant of bail. His first bail application in this case, B.A. 36/85, was dismissed by me by my order dated 1-4-1985 on the ground that on evidence collected during investigation, there appeared reasonable grounds to believe that he was guilty of scheduled offence of making a false document with the intention of deceiving the bank in this case and subsection (6) of section 5 of the Offences in Respect of Banks (Special Courts) Ordinance, 1984 (IX of 1984) provides a definite prohibition against grant of bail to such persons. His second bail application, B.A. 71/85, was dismissed by me by my order, dated 7-4-1985 on account of his having remained fugitive from justice for a number of dates, in. this case when it was pending in the predecessor. Court of a Magistrate and on account of his having been changing his addresses to avoid his apprehension in this and other cases. He has now filed this third application for the same relief.

2. The main point on which the present bail application has been filed is that the accused petitioner has been in detention for a continuous period of more than one year but his trial has not yet been concluded. According to slip saza attached to the challan he was arrested on 16-8-1983 but the police report under section 173 Cr.P.C. which was prepared on 17-8-1983 shows that he was on bail on that day. However, the accused did not appear and remained absent from the predecessor Court of Magistrate. On 9-7-1984, the case was ordered to be sent to this Court for trial. In this Court from 29-7-1984 onwards various processes were issued but he could not be apprehended. Finally it was on 16-1-1985 that he could be traced out by the police, arrested and produced in this Court. He is in detention since then.

It is, therefore, true that accused-petitioner has been in detention continuously for a period of more than one year without his trial having been concluded without any fault on his part and the third proviso to subsection (1) of section 497 Cr.P.C. provides that such an accused person shall be granted bail. However, a proviso was added to the said third proviso by means of Code of Criminal Procedure (Second Amendment) Ordinance (XXXII of 1983), dated 26-12-1983. It reads as below:-

Provided further that the provisions of the third proviso to this subsection shall not apply to a previously convicted offender or to a person who in the opinion of the Court, is a hardened, desperate or dangerous criminal.

Abdus Satter S.I. has placed on record certificate from Police Station, Civil Lines, Lahore to the effect that the accused petitioner was challaned in F.1.R. No. 275/82, dated 26-11-1982 of P.S. Civil Lines, Lahore for offences under section 420/468/471/109, P.P.C. and was tried and convicted by Summary Military Court No.29, Lahore and sentenced to 6 months R.I. Accused-petitioner or his counsel have not controverted it. The accused is, therefore, established to be a previously convicted offender.

Furthermore, in my opinion, he is also a hardened criminal inasmuch as, besides the above case, in which he was convicted and sentenced, there are three cases against him. One of them is the present case arising out of F.I.R. No. 11/80, dated 11-3-1980 for offences under section 419/4201407/468/471, P.P.C. The other is case No.131/84 arising out of F.I.R. No. 538/75 dated 3-7-1975 of P.S. Old Anarkali, Lahore for offences under sections 420/468 and 471, P.P.C. The third, case against the accused is case No.149/84 arising out of F.I.R. No.57179 dated 31-3-1979 of F.I.A., Lahore for offences under sections 109/420/468 and 471, P.P.C. Thus the first case against him is of the year 1975, the second of the year 1979, the third (the present one) of the year 1980 and 4th of the year 1982. That prima facie shows that case in hand is not a stray isolated incident in the life of the petitioner who is continuing to commit offences year after year as and when he gets an opportunity to do so and his mind has hardened and commission of offences does not now prick his conscience at all.

5. Apart from that, in my opinion he is a dangerous criminal too. The three cases against him pending in this Court are of offences in respect of banks. Abdul Setter, S.I., F.I.A. states that F.I.R. No.275/82 for offences under sections 420/4681471 and 109, P.P.C. in which the accused was convicted and sentenced by the Military Court to 6 months R.I. also related to banks. In the F.I.R. of this case, dated 11-9-1980 it is recorded that accused Gulzar Ahmed and Shahzad Tabassam Bhatti when apprehended alongwith furniture (purchased with the forged cheque) on the railway station, Lahore disclosed that they were members of a gang headed by Dr. Samoel Shad alias Dr. Khan and another. Prima facie, therefore, if the accused is released on bail, he being one of the two heads of the gang, would again commit offences in respect of the banks, the field in which he is alleged to have committed offences at four different times already. He is, therefore, a danger to the banks which are national institutions and serve the society. He is thus a danger to the society itself and is accordingly a dangerous criminal.

6. Since the accused as shown above is a previously convicted person and in the opinion of this Court is also a hardened and dangerous criminal, by the force of above quoted proviso to third proviso to subsection (1) of section 497 Cr.P.C., the said third proviso is not applicable to his case. He is not, therefore, entitled to grant of bail notwithstanding his continuous detention for a period of more than one year.

7. Mr. Mushtaq Raj learned counsel for the accused has next submitted that the two co-accused of the petitioner in this case named Shahzad Tabassam Bhatti and Gulzar Ahmed are on bail and, therefore, the accused should also be granted bail. In my opinion, the mere fact that co-accused of the accused-petitioner are on bail is not ground for grant of bail to him. Case of each accused is to be dealt with on the basis of facts attributed to him in the prosecution case. It is true that when other accused persons have already been' granted bail, their co-accused is granted bail on the basis of the principle of consistency in making orders or passing of judgments by the Courts. However, the principle of consistency depends for its application to similarity of roll attributed to the said accused in the prosecution story to the role found to have been played by the accused who have already been granted bail. Learned counsel has not shown that the acts alleged in the prosecution story to have been committed by the accused-petitioner are the same as have been or are similar to those attributed to Shahzad Tabassam Bhatti and Gulzar Ahmed. The argument, therefore, fails and is accordingly rejected.

8. The tendency of an accused person to escape from the scene of occurrence and, making himself scarce thereafter and the act of his changing his place of residence after his release on bail and not becoming available thereafter in order to stand his trial is another circumstance which has got to be kept in mind while considering the question of grant or refusal of bail to him. It is recorded in the F.I.R., dated 11-8-1980 of this case that co-accused Gulzar Ahmed and Shahzad Tabassam Bhatti who were apprehended on the Railway Station, Lahore, alongwith furniture purchased with the forged cheque disclosed that Dr. Samuel Shad alias Dr. Khan had become alert and run away from the Railway Station. According to the record, as already stated, originally the accused-petitioner could be arrested only on 16-8-1983 in this case which related to the occurrence dated 11-3-1980. In other words he could be apprehended by the police after a period of three years and about five months after the occurrence. Then after grant of bail when the case was before the predecessor Court of Magistrate, his attendance was sought to be procured by means of various processes for about 13 dates from 19-12-1983 to 17-6-1984. On 9-7-1984, the case was sent to this Court but the accused could not be apprehended in spite of issuance of warrants of his arrest. It was on 16-1-1985 that he could be traced out and arrested by the police and thereafter brought to this Court. Thus besides his abscondance for about 3 years after the alleged commission of the crime, the accused remained fugitive from justice from 19-12-1983 to 15-1-1985. The address of the accused shown in the challan and conviction slip attached to the challan is Samuel Shad son of Miraj Din caste Christian resident of Younus Abed, Ferozepur Road near Glaxo Factory, Lahore. The warrants of arrest of accused Samuel Shad issued on his said address in this case were returned with the report that he was not living on this address and that he abandoned his place of residence four years ago and shifted to some other place and it was not known where he was at present living. After his re-arrest, in his bail application B.A.71/85, he showed his address Samuel Shad son of Miraj Din, caste Christian, resident of 96-Gulshan Block, Allama lqbal Town, Lahore. However, in case No.149/84 relating to F.I.R. No.57/1979 his address given in the challan was Samual Shad son of Miraj Din resident of House No.10, street No.3, Akram Park, Gulberg No. III. Lahore. Thus a year earlier to the registration of the present F.I.R. No.11/80, he had a totally different address. In case No.131 of 1984 of this Court, relating to F.I.R. No.538175, his address given in the challan is Samuel Shad eon of Miraj Din caste Bhatti Christian residence of Jhugian Shah Jamal, Police Station, Ichhra, Lahore. Thus four/five years earlier to the registration of F.I. R. No.11/80 of the present case, his resident was at an entirely different place. It, therefore, appears that he has no fixed place of residence and he continues to change his places of residence to unknown places to avoid apprehension. His propensity to move from one place to another facilitates him in his abscondance and in remaining fugitive from justice. If, therefore, the accused petitioner is released on bail, he is likely to abandon his said residence and shift to an unknown place and thus defeat the inquiry into the offence alleged to have been committed by him. It is laid down in Muhammad Iqbal v. State P L D 1963 Lah. 279 that the process by which guilt of a person is to be found and in case that, guilt is established, he is to be brought to punishment must not be allowed to be defeated. If the accused is granted bail, he will become scarce and would not be available to stand his trial. Furthermore, in view of the fact that all the four cases against him are offences committed in respect of banks, he is likely to repeat offences in respect of or in connection with the business of the banks. It is well established that such- a person should not be released on bail.

For the foregoing reasons, I reject this application of the grant of bail.

I may, however, add that to relieve the accused of the hardship involved in the situation, I have already made an order for commencement of the trial of the accused in this case out of turn and have for that purpose already summoned the other accused in this case for 11-6-1986.

S.A. Petition dismissed.

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