Find a Lawyer

Bail Application No. 1499 of 1986, decided on 8th March, 1987.

(a) Criminal Procedure Code (V of 1898)------

---S. 498--Penal Code (XLV of 1860), Ss. 302, 307, 324 a 34--Pre-arrest bail--Accused absconding for more than two years--No ulterior motive or mala fide proved against prosecution--Interim bail granted to accused recalled.

1987 P Cr. L J 1050; N L R 1984 Cr. L J 496; Muhammad Sadiq v. Sadiq and others P L D 1985 S C 182; Awal Gul v. Zawar Khan PLD 1985 S C 402; Murad Khan v. Fazal Subhan P L D 1983 S C 82; Zisul Hassan v. The State P L D 1984 S C 192; Nasreen Akhtar v. Fateh Sher 1987 P Cr. L J 458 and Criminal Petition No. 86-K of 1987 ref.

(b) Criminal Procedure Code (V of 1898)----

---S: 498 & 512--Penal Code (XLV of 1860), Ss. 302, 307, 324 34--Bail before arrest--Accused shown absconder in challan--Trial Court while recalling order of bail before arrest has to remand accused to custody--Held, though normally while considering bail before arrest applicants are not remanded to custody with a view that probably accused may not be challaned but when it was clear that accused was absconder and fugitive from law and challan had been submitted and proceedings under S. 512, Cr.P.C. were taken, he should be remanded to custody to face the trial.

Sadiq Ali v. The State P L D 1966 S C 581 ref.

Muhammad Jamil for Applicant. Rashid Tariq Khan for the State.

This is an application for anticipatory bail on behalf of applicant Abdul Qayyum son of Abdul Razak in case registered under sections 302, 307, 324/34, P.P.C. on 18-9-1983 at Police Station Soldier Bazar, Karachi.

Briefly the prosecution case is that on 18-9-1983 at 10-30 p.m., complainant Abdul Rehman was standing at the gate of his building. He saw Sheeraz and Majid alongwith their small children standing, near the election office of Nooruddin Natha. There, came Hanif, Javed, Qayyum and one person. It is alleged that Hanif and Javed had knives (Churris), Qayyum had hatchet while fourth person was armed with Danda. They attacked Sheeraz and Majid. Hanif also shouted and instigated his companions and stated that these are contesting election against them. On this, all of them attacked Sheeraz and Majid with Churris, hatchet and Danda. In the meanwhile on the cries Aslam, servant of Sheeraz and other persons came. Aslam was also given Chhuri injuries. This incident was witnessed by Shaikh Abdul Latif, Mushtaque and other people of the Mohallah. Injured were taken to the hospital where Majid died.

Applicant was granted interim bail before arrest by the learned Sessions Judge (East) Karachi, on 5-1-1986. He re-called his earlier order and rejected the bail application of Abdul Qayyum. Being aggrieved with the order he moved an application for bail before arrest in this Court and was allowed interim bail by Acting Chief Justice Mr. Justice Abdul Qadeer Chaudhary on 12-10-1986.

I have heard Mr. Muhammad Jamil Advocate. It is contended by the learned counsel that co-accused Muhammad Javed and Saleem have been granted bail by this Court and case of applicant is also identical to the case of co-accused. It is argued that applicant had never absconded and was present before learned Sessions Judge since September, 1985. He has referred to the case reported in 1987 P. Cr. L J 1050, 1984 NLR Cr. L.J. 496. It is further argued that deceased Majid died due to Churri injuries while applicant was armed with hatchet.

Mr. Rashid Tariq appearing for the State has opposed the bail and submitted that there is specific allegation against the applicant that he caused hatchet injuries to Majid and Sheeraz. It is argued that applicant after the incident absconded therefore, he is not entitled to bail before arrest.

According to F.I.R. it is clear that all the accused armed with Churris, hatchet and Dandas attacked Majid and Sheeraz. It is alleged that Aslam was also given Churri injuries. Co-accused Javed was granted bail after arrest on the consideration that accused Hanif who also caused Churri injuries to the injured was not challaned by the police. Being the case identical to that of Hanif, Javed was allowed bail. The case of Saleem was distinguishable as no Danda injuries were found on the deceased or the injured. It is clearly stated in the F.I.R. that Majid died due to the injuries, caused by weapons. The applicant is specifically named and there is direct allegation of causing hatchet injuries. The incident took place in September, 1983 and after one and half years after the incident he was granted interim bail by Sessions Judge. He was absconding for 11 years, therefore, in view of case in Muhammad Sadiq v. Sadiq and others P L D 1985 S C 182, the accused, who are fugitive from law and Court loses some of normal rights granted by a procedural and also substantive law. It has been further held by their Lordships that unexplained absconsion disentitles to concession of bail notwithstanding merits of the case.

In the present case applicant has not explained his long absconsion properly. The explanation has not been accepted by the learned Sessions Judge. He was declared absconder and proceedings under section 512, Cr.P.C. were taken. The learned Sessions Judge has stated in his order that co-accused were granted bail after arrest therefore, the case of applicant for pre-arrest bail was not considered. In case of Awal Gul v. Zawar Khan reported in P L D 1985 S C 402, the same view has been taken. Moreover, his bail before arrest application was dismissed by Sessions Judge on 5-1-1986 but after lapse of about 9 months he moved High Court for which it is clear that after order he again was absconding for 9 months knowing by that case is against him.

With regard to the bail before arrest the law is very clear and it has been held by the Supreme Court from time to time that pre-arrest bail could only be granted when arrest is with ulterior motive such as humiliation and unjustified arrest is shown. On this I refer to the cases of Murad Khan v. Fazal Subhan reported in P L D 1983 S C 82, Ziaul Hassan v. The State reported in P L D 1984 S C 192, Jamaluddin v. The State reported in 1985 S C M R 1949 and case of Nasreen Akhtar v. Fateh Sher reported in 1987 P Cr. L J 458. I also refer to an order of the Supreme Court passed in Criminal Petition No. 86-K of 1987 an 19th January, 1987 where bail before arrest granted by this Court was cancelled.

For the reasons stated above and case-law I am of the view that applicant is not entitled to pre-arrest bail on the ground that no ulterior motive or mala fide has been proved and there is absconsion A for more than 1 and half years and subsequently for 9 months on his part, therefore, he deserves no concession of anticipatory bail. His application is, therefore, dismissed, and order by which he was granted interim bail on 12-10-1986 is re-called.