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Criminal Bail Application No. 952 of 1986, decided on 28th October, 1986.

‑‑‑Ss. 497 &498‑‑Penal Code (XLV of 1860), S. 307/34‑‑Bail, grant of‑ Fugitive from law and Courts loses some of normal rights granted by procedural as also substantive law‑‑Unexplained noticeable abscondcnce of accused, held, would disentitle him to concession of bail notwithstanding merits of case.‑ ‑[Abscondence].

1986 S C M R 166 and Bacha Said v. The State P L D 1978 S C 102 ref.

‑‑Ss. 497 & 498‑‑Penal Code (XLV of 1860), S. 307‑‑Bail, grant of‑ Applicant fired only once thereby causing injuries to the victim of assault on non‑vital part of body‑‑Applicant allegedly absconding yet no proceedings under Ss. 87 & 88, Cr.P.C. initiated ‑against him‑‑Short abscondence of applicant, held, not proved to the extent of disentitling him from benefit of bail to which he was entitled on meri:s‑‑Ad interim pre‑arrest bail confirmed, in circumstances.‑‑ [Abscondence].

1976 S C M R 168; 1986 S C M R 166 and Bacha Said v. The State PLh 1978 SC 102 ref.

Shaikh Ajaz for Applicant.

Zawar Hussain Jafri, A.A.‑G. for the State.

Date of hearing: 28th October, 1986.

This application for bail before arrest is moved on behalf of the applicant against whom challan has been submitted in the Sessions Court, Sukkur for the offence punishable under section 307 read with 34, P.P.C.

The brief facts leading to this application are that on 2‑7‑1986 about 6‑00 p.m. complainant Bahadur was standing in his land bearing survey number 414 alongwith his brother Mahmood Ali, when the present applicant armed with gun and co‑accused Younis armed with Lathi came there. This land was jointly owned by the present applicant and the complainant but they had privately partitioned the land. However, the applicant claimed the land to be his and abused the complainant and his brother and when the complainant protested, the applicant fired at him which struck him on the arm and hand. On the cries of complainant P.Ws. Rehmatullah and Allahwasayo came and saw the applicant, who then ran away. The complainant went and lodged complaint at 7‑00 p.m. at Ubauro Police Station on the same date.

The main contention of the learned counsel for the applicant is, that the injuries on the person of complainant are not dangerous. The fact that he was able, to cover 10 miles to lodge the complaint showed that the injuries were not dangerous. Furthermore, the injuries were on non‑vital parts of the body and the applicant is alleged to have fired once only. It is further contended that even in the F.I.R., it is not alleged, that the applicant fired at the complainant with intent to commit his murder. It is further contended, that though the medical officer has shown one injury to be grievous, but he has not shown the reason on the basis of which he held injury to be grievous. However, it is argued by learned A.A.‑G., that as the injury is grievous the offence under section 326, P.P.C. would be made out which itself comes within the prohibitory clause of section 497, Cr.P.C.

The learned counsel for the applicant has relied on 1976 S C M R 168. In the reported case the petitioner was challaned under sections 307, 148, 365, 506 and 149, P.P.C. Medical evidence in that case disclosed that there was fracture on the left forearm of the injured. The injured had himself gone to lodge the F.I.R. It was held therein:‑------

"We do not wish to make any observation as to the merits of the case one way or the other, lest it should prejudice either side in these proceedings, but the medical report does not, in our view, disclose that any of the injuries was either such as would be likely to result in death in usual course of nature or such as can be said to be so imminently dangerous as to be likely to cause death. Whether the accused persons had the intention or knowledge necessary to constitute an offence under section 307, P.P.C. will, of course, depend upon the evidence that may be adduced in the case. For the purposes of this bail matter, however, we do not consider it advisable to go into these allegations in any detail by it will be sufficient to say that prima facie, on the basis of the material now on the record, no clear case under section 307, P.P.C. has been made out. It will of course, depend upon the evidence which might be adduced in the case and we do not wish in any way to influence the Court, which will be trying the accused persons. It will be free to decide according to the evidence without being influenced by any observation in this order"

We are also unable to agree that what has been done by the High Court, namely, importing a new offence with which the accused persons had not been charged, was proper. In our view, the case as laid down in the F.I.R. does not come within the mischief of subsection (1) of section 497, Cr.P.C.

It is also contended by the learned counsel that the applicant was undergoing medical treatment in Rojhan in Punjab on the relevant date and has produced certificate of doctor of Rojhan that he was under his treatment from 30‑6‑1986 to 5‑7‑1986. However, alibi on the basis of this certificate cannot be accepted as the certificate purports to have been issued on 30‑6‑1986 showing therein that the applicant was under treatment from 30‑6‑1986 to 5‑7‑1986. Thus, if the certificate is to be believed the applicant was under treatment for six days even after the issue of certificate which makes the certificate unworthy of any credit or reliance.

It is further contended by learned counsel that the applicant has been involved due to enmity over elections with Jam Munir, with whom S.H.O. Ubauro is on friendly terms. It is further contended that police would arrest the applicant with intent to humiliate and torture him to confess his guilt. It is further contended that the applicant, who is a student, would suffer irreparable loss if he is arrested as his entire future will be marred by this stigma of arrest.

The learned A.A.‑G. has opposed the bail application on the ground that the applicant was absconding. In the instant case the offence is alleged to have been committed on 2‑7‑1986 whereas the challan was submitted on 26‑7‑1986. The applicant applied to Sessions Court for bail before arrest on. 23‑8‑1986. No doubt a fugitive from law and Courts loses some of normal rights granted by procedural as also substantive law. Unexplained noticeable abscondence of accused disentitles him to concession of bail notwithstanding the merits of the case. However, as the dates would show, there is no long abscondence in this case and abscondence appears to have been partly explained by the applicant, when it is contended that at the instance of Jam Munir the police would torture him to confess his guilt. Furthermore, there is no evidence that any proceedings under sections 87, 88 and 204, Cr.P.C. had been taken against the applicant. In 1986 S C M R 166 their Lordships refused to grant leave for appeal where the High Court had released the accused on bail in spite of long abscondence on the ground that no proclamation was made under sections 87, 88 and 204, Cr.P.C. and no search was made, thus leaving the abscondence of accused in doubt. Their Lordships have further referred to the observations made in case of Bacha Said v. The State P L D 1978 SC 102 to the following effect:‑---

"The term 'abscondence' with its derivatives is not defined in the Code of Criminal Procedure, although it occurs in sections 87, 90‑A and 512 of the Code and also in section 172 of the Penal Code. In this connection section 87(1) 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 so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and time before it."

It is contended by the learned counsel that the facts of the case of the applicant are identical to the facts of the case reported in 1976 S C M R 168 and the applicant is entitled to bail. It is further contended that applicant has alleged mala fide against the police and has also been able to show irreparable loss that he will have to suffer if arrested. It is also contended that the prosecution has not been able to prima facie prove that the applicant had absconded as there were no proceedings under sections 87 and 88, Cr.P.C. against the applicant. There appears to be some force in the contentions raised by the learned counsel for the applicant.

Considering all the facts discussed above, in my opinion the abscondence of accused is not proved to the extent to disentitle him from the benefit of bail to which the applicant appears to be entitled on merits. I accordingly confirm the interim bail before arrest granted to the applicant. However, if the evidence on record so, warrants, the trial Court is at liberty to cancel bail of the applicant.

S.G.D./M‑25/K Bail allowed.

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