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Criminal Procedure Code (V of 1898)-

-- S. 497-Penal Code (XLV of 1860), S. 307-Bail, grant of Accused party heavily armed, outnumbered complainant and fearing intervention from any quarter yet, refraining from repeating attack on him-Only applicant allegedly firing at complainant, hitting him on his right thigh and injury caused by such firing declared as simple-Applicant contending to be sick and hospitalized on day of occurrence, and medical certificate in support of such alibi duly produced by him-Admittedly only one attempt was made to arrest applicant and there was no order of Court declaring him as absconder or instituting any proceedings under S. 87 or S. 88, Cr. P. C. against him, forthcoming-Mere fact that applicant was arrested after six months of occurrence, held, would not necessarily show that he was absconding, in absence of any positive evidence-Applicant allowed bail, in circumstances.

1987 P Cr. L J 1014 ; 1987 P Cr. L J 1033 ; 1986 P Cr. L J 2742 ; 1986 P Cr. L J 1821 ; Awal Gul v. Zawar Khan and others P L D 1985 S C 402 ; Ibrahim v. Hayat Gul 1985 S C M R 382 ; Muhammad Sadiq v. Sadiq and others P L D 1985 S C 182 and Bacha Said v. The State P L D 1978 S C 102 ref.

Habibullah Shaikh for Applicant.

Syed Zawar Hussain Ja furl, A. A.-G. for the State.

Abdul Ghani Shaikh for the Complainant.

This bail application is moved on behalf of the applicant who is facing trial before Sessions Court, Sukkur for the offences punishable under sections 307/34 and 114, P. P. C. read with section 13(d) Arms Ordinance.

The facts of the case against the applicant in brief are that, there are some matrimonial differences between the applicant and the complainant. On 6th April 1986 at about 8 a. m., complainant Ubdullah was going to his shop, when near Public School, Panoakil, he was waylaid by the present applicant along with co-accused Abdul Kadir, Abdul Samad and Abdul Majid. Co-accused Abdul Kadir had revolver, Abdul Samad had hatchet while Abdul Majid and present applicant had guns. On the instigation of co-accused Abdul Majid, the present applicant is alleged to have fired at the complainant, which hit him on his right thigh. The incident was witnessed by Khalil Ahmad brother of the complainant and Ghulam Muhammad relation of complainant who came on the cries. The complai nant went and lodged complaint at Panoakil Police Station on the same day at 8-20 a. m.

The learned counsel for the applicant has urged the release of the applicant on bail on the following grounds:

(1) That the co-accused have-been released on bail by the Court.

(2) That on the day of incident, the applicant was under treatment of Medical Officer, Ratodero as he was suffering from typhoid fever. In support he has produced a certificate issued on I1-4-1986 by Afzal Hussain Abro, Physician, Ratodero to the effect that the applicant was under his treatment as a case of typhoid fever from 3-4-1986 to 10-4-1986.

(3) That the prosecution story is not believable as the applicant, who is an old man would not have fired at the complainant when his son who was also armed with revolver was present.

It is further contended that the injury has been declared by Medical Officer to be simple caused on lower part of the body and, therefore, is not dangerous to the life of the injured. It is also contended, that if the intention of the accused party had been to murder the complainant, they would not have been content with one shot on non-vital part of the body of the complainant when three of then are said to be armed with revolver and guns while the fourth had hatchet. It is, therefore, urged that it is a case for further inquiry as the Court has yet to determine as to whether the applicant had intention to commit murder.

The bail application is opposed by learned A. A.-G. and Mr. Abdul Ghani Shaikh appearing for the complainant on the ground, that the applicant had caused injuries by fire-arm, which shows, that he had inten tion to commit murder of the complainant and further that the applicant was absconding.

It is an admitted fact, that out of four persons implicated in the F. I.R. only the applicant is alleged to have fired from his gun only once, which hit the complainant on right thigh and which injury has been declared by the Medical Officer to be simple. Mr. Habibullah Shaikh for applicant has cited number of case law in his support. In case reported in 1987 P Cr. L J 1014 learned Single Judge of this Court granted bail to the applicant, accused under section 307, P. P. C. where the injuries or the person of the injured were simple and there was admitted enmity, coupled with the fact, that the incident was over without intervention from any one and, therefore, it was considered a case for further inquiry. Similar view was taken it: the case reported in 1987 P Cr. L J 1033 by Single Judge of this Court and bail was granted to the applicant accused under section 307, P. P. C. where the injuries sustained by the victim were simple.

Mr. Abdul Ghani Shaikh for complainant has, however, relied upon 1986 P Cr. L J 2742 (1) where the High Court refused to interfere when the Additional Sessions Judge refused bail to the applicant, who was accused of firing three shots causing simple injuries on non-vital part, but directed the trial Court to dispose of the case within four months. He also relied on 1986 P Cr. L J 1821 wherein it is held: -

"The names of both the applicants are given in the F. I. R. which lodged without any loss of time. The allegation is that applicant Abdul Kadir was armed with revolver and caused injuries to com plainant. This version gets support from the medical evidence as injury No. 3 has been caused by fire-arm. The allegation against Javaid is that he caused injuries to complainant with knife. The medical certificate shows that injury No. 1 was caused with sharp edged weapon The applicants are also vicariously liable for the alleged offence and there is direct evidence of causing fire arm and knife injuries. The injured also sustained injures Nos. 2 and 4 by blunt and hard substance. The intention is gathered from the circumstances. There are reasonable grounds to believe that applicants are not guilty for the offence punishable with imprison ment for life. Hence this application is dismissed."

Words "further inquiry" have been enunciated by their Lordships of Supreme Court in case of Ibrahim v. Hayat Gul 1985 S C M R 382 wherein it is held as under:---

"Section 497, Cr. P. C. does not leave it to the discretion of the Court to withhold bail to a person accused of non-bailable offence. It has to be allowed to him as of right under this provision if an im portant prior condition is fulfilled, namely, that the officer in charge of Police Station or the Court taking cognizance of the matter comes to a definite conclusion on consideration of the entire material that "there are no reasonable grounds for believing that the 'accused has committed a non-bailable offence." Without such finding by such officer or the Court the co-accused would not be released on ground of further inquiry under subsection (2). And similarly if such a finding is recorded the accused cannot be denied the right of bail granted to him by the same provision. In the present case neither the officer nor the Court concerned recorded the prerequisite finding that being so the accused could not be released on bail on ground of so-called further inquiry under sub section (2) of section 497, Cr. P. C.

In the instant case when we take entire material available before this Court in consideration, it is seen, that there are simple injuries on the person of the injured caused by gunshot. The offence would fall under section 324, P.P.C. which is bailable offence, unless it is proved, that the applicant bad intention to commit murder. The contention of the learned counsel for applicant is, that if the intention of the applicant on his accomplices had been to commit murder, they would not have fired only one shot, when they out-numbered the complainant and were also heavily armed and there was no intervention. This contention does require con sideration by the Court, while forming the opinion as to intention of the assailant. Furthermore, as already pointed, there is also medical certificate issued by doctor, who has also filed affidavit to the effect that on the day of incident the applicant was under his treatment. Considering all these facts it can be said that it is a case for further inquiry, as there arc reasonable grounds to believe that the accused has not committed a non bailable offence.

However, it is an admitted fact, that the F. I. R. was lodged on 6-4-1986 but the applicant was not arrested. He applied for bail before arrest before Sessions Court, on 13-9-1986 which application was dismissed on 9-10-1986. Applicant was arrested by the police afterwards, but it is contended, that the applicant himself surrendered after his application for bail before arrest was rejected. The challan was submitted in the Court after the arrest of the applicant.

The co-accused, who have been released on bail are closely related to the applicant and, therefore, it cannot be said, that he bad no knowledge of the case. It is contended by applicant, that he had gone to the S. P. and had shown him the medical certificate, which subsequently instructed the S. H. O. not to arrest him and make proper investigation. However, there is no evidence to this effect apart from the word of the applicant. It is submitted by his counsel, that very fact, that the applicant was not arrested for such a long time, though he was available in his house and village is a circumstances which supports the contention of the applicant, that he had shown the medical certificate to the S. P. Be that as it may, it is admitt ed by the learned A.A.-G. that only one attempt was made by the police to arrest the applicant, that was on 7-4-1986. The applicant has produced the medical certificate to show, that he was at Ratodero on this date.

The effect of abscondence has been considered by the Supreme Court in number of cases. In case of Awal Gul v. Zawar Khan and others (PLD 1985 SC 402) it is held as under :-

"It is now well-established law and Courts lose some of the normal rights granted by the procedure as also substantive law. It is also a well-established proposition that unexplained noticeable abscon dence disentitles a person to the concession of bail notwithstanding the merits of the case. The principle being that the accused by his conduct thwarts the investigation qua him in which valuable evi dence (like recoveries etc.) is simply lost or is made impossible to be then seek a reward for such a conduct (in becoming fugitive from law)."

In case of Ibrahim v. Hayal Gul (1985 SCMR 382) their Lordships have observed as under: -

"It may straightaway be remarked, that long abscondence would not become irrelevant merely because the co-accused of the accused concerned have, during his abscondence been acquitted on consideration of the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf. However, it is correct, that in some rare cases, notwithstanding abscondence, 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 sec tion 497, Cr. P. C. and/or the so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence.

In the case of Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) it is observed:

"But as regards the other question viz. the effect of abscondence of the accused for a period of six months on their right to obtain bail, we feel, that this question has not been given due attention by the learned Judge in his order. The effect of abscondence as explained by this Court in its two recent judgments, is that the person becom ing a fugitive from law loses some of the normal rights granted to accused persons by the procedural as also substantive law and disentitles himself to the concession of bail, unless he can satis factorily explain the period of his abscondence."

However, every case is to be decided on its own merits. It is con tended by the learned counsel for the applicant that in this case the alleged abscondence of the applicant has not thwarted investigation in any way, as the gun with which he is alleged to cause injury has been recovered from him, which is his licensed gun. It is admitted by the A. A: G. that it has not been sent to the ballistic expert, because no empties were recovered from the scene of offence. It is further submitted, that before a person can be punished for alleged abscondence, there should be some evidence to show that he had absconded. 1t was not obligatory for the applicant to have himself voluntarily gone to the police station to offer his arrest, but the prosecution should show that attempt was made to arrest him, but the accused evaded such an arrest. In the instant case as already pointed, admittedly only one attempt was made to arrest the applicant on 7-4-1986 and applicant has explained his absence on that date by producing medical certificate and the trial Court has yet to decide as to whether to believe this certificate or to disbelieve it. Admittedly no challan was submitted before the Court before the arrest of the present applicant in spite of the fact, that three co-accused had been arrested six months earlier. Admittedly there is no order of the Court declaring the applicant as absconder or instituting any proceedings under section 87 or 88, Cr. P. C. It is submitted that the mere fact, that the applicant was arrested after six months, would not necessarily show, that he was absconding in absence of such positive evidence. In the case of Bacha Said v. The State (P L D 1978 S C 102) their Lordships have discussed as to what is abscondence'. Their Lordships have observed: -