KHAWAJA MUHAMMAD SAEED, J.---This criminal appeal is directed against the judgment of the Shariat Court dated 12-6-2002, whereby the bail allowed to the appellants by the District Court of Criminal Jurisdiction, Pallandri on 20-11-2001 was cancelled and they under the orders of the Shariat Court were taken into custody.
2. The facts relevant for the decision of this appeal precisely stated are that appellants herein are involved in a case registered against them besides some other accused persons under sections 302/324, A.P.C. According to the F.I.R. lodged by complainant, Iftikhar Hussain, who is arrayed in the present appeal as respondent, Muhammad Yunus, the accused-appellant raised 'Lalkara' while Muhammad Nawaz another accused person (not before us in the present case) fired with 'Kalashinkov' upon Mulazam Hussain who fell on the ground and subsequently died. It is alleged that other accused persons humiliated the dead body as they started beating it with kicks and lathi blows. Appellant No.1 after the occurrence for the first time surrendered himself before the Shariat Court alongwith his application for pre-arrest bail on 14-9-2001. He contended in his application that a false case has been registered against him out of enmity and that police has cordoned off the premises of the Court of District Court of Criminal Jurisdiction, Pallandri and has made it impossible for him to approach the said Court for availing the remedy of pre-arrest bail. In order to provide him time to move the said Court the Shariat Court admitted him to bail in the sum of rupees two lac with one surety iri'the like amount to the satisfaction of any Magistrate 1st Class Mirpur or Pallandri. The bail was granted to him up to 17-9-2001, up to this date he was directed to move the District Court of Criminal Jurisdiction, Pallandri for bail if so advised. Appellant No.2 after occurrence for the first time surrendered before the Shariat Court and moved an application for pre-arrest bail. In his application he contended that he being a respectable citizen his opponents have involved him in a false case in order to get him arrested by the police for the purpose of his humiliation in society. He also claimed that the local police has barricaded the premises of the District Court of Criminal Jurisdiction, Pallandri so that he may not be able to approach the said Court. In order to enable him to move the District Court of Criminal Jurisdiction Pallandri for bail he was provided bail up to 18-6-2001 by another Bench of the Shariat Court. Both the appellants thereafter moved the District Court of Criminal Jurisdiction, Pallandri and obtained pre-arrest bail orders in their favour which were confirmed by the said Court vide orders dated 6-6-2001 and 20- 11-2001. The legality and correctness of these orders were challenged before the Shariat Court by complainant, Iftikhar Hussain. The learned Chief Justice of the Shariat Court while relying upon an authority of this Court in a case titled Alam Zaib v. Haji Muhammad Ramzan and another 2000 MLD 178 recalled bail order of the accused-appellants on the ground that after the occurrence both of them had absconded. Appellant No.1 surrendered almost after six months, whereas appellant No.2 after three months of the occurrence. Thus they were not entitled to claim bail before arrest on account of this sole reason. This judgment of the Shariat Court has been assailed in the present appeal.
3. Sardar Abdul Hameed Khan Advocate, while arguing the case on behalf of the appellants, argued that at bail stage the role attributed to the accused persons is to be determined by making tentative assessm ent of the material on record by the Court. According to him, in the present case if the version contained in F.I.R. is treated as sacrosanct even then no active role is attributed to his clients. In the F.I.R. appellant No.1 Muhammad Yunus is stated to have raised `Lalkara' directing Nawaz to bring kalashinkov and fire upon the members of the complainant party. According to the learned counsel in the F.I.R. it is not mentioned that Muhammad Yunus used any type of fire-arm, which caused death of Mulazam Hussain. Death of Mulazam Hussain is attributed to accused Nawaz that he used kalashinkov and caused his death whereas the other appellant is stated to have kicked and beaten the dead body with kicks and the lathe he was carrying with him.
Therefore, no effective role is attributed to appellants and their arrest is not necessary for the investigation of the case as challan is almost complete. The learned counsel further argued that both the appellants are real brothers. They have been implicated in the case along with their third brother in order to deprive them from the liberty to defend the case fabricated against them.
According to the learned counsel accused Muhammad Yunus who has been involved in the case on the pretext of 'Lalkara' was not present on spot. He further submitted that police made it impossible for his clients to seek remedy of pre-arrest bail from the District Court of Criminal Jurisdiction Pallandri as the said Court was practically barricaded by the local police with the connivance of complainant party. His clients, in these circumstances, were compelled first to approach the Shariat Court in order to enable them to move the District Court of Criminal Jurisdiction, Pallandri for obtaining concession of bail. In the given circumstances the abscondence of his clients after the occurrence was justified in law.
4. Raja Ibrar Hussain, the learned Advocate-General and Sardar Mushtaq Hussain Khan, Advocate for the complainant party, on the other hand argued that soon after the occurrence the accused appellants absconded from the scene of occurrence. One of the accused persons namely Masood is still fugitive from law. Both these accused persons remained at large for pretty long time and they appeared before the Shariat Court after a lapse of considerable period. According to them, Muhammad Yunus raised `Lalkara' and asked his brother Nawaz to bring 'Kalashinkov' and kill all the members of the complainant party. At his instigation his brother Nawaz brought out `Kalashinkov' from their common house and caused death of Mulzama Hussain. Later on the accused party nominated in the F.I.R. kicked the dead body of Mulazam and also beat the same with lathies. According to the learned counsel appellant No.1 instigated his brother for the death of Mulazam Hussain. All the other accused-appellants by their presence at the spot also contributing in the death of Mulazam Hussain. The learned counsel for the complainant relied upon the judgment of this Court reported as Alam Zaib v. Haji Muhammad Ramzan and another 2000 MLD 178 wherein it is laid down that an absconder is not entitled to the concession of pre-arrest bail. The learned counsel for the parties also referred some other authorities, which need not be in this judgment.
5. We have considered the respective arguments of the learned counsel for the parties. We agree with the learned counsel for the appellants that the matters relating to bail are to be decided in the light of the material collected by the police during the investigation of the case. The bail matter is not to be decided in vacuum. In the present case the occurrence took place on 26-3-2001 at 8-00 a.m. The matter was reported to the police on the same day at 9-55 a.m. and a case under sections 302/334 and 337, A.P.C. on the basis of the report was registered against the accused persons mentioned in the F.I.R. including the present appellants. Soon after the occurrence both the accused persons managed to escape in order to avoid their arrest by the police. Muhammad Yunus surrendered before the Shariat Court after 171 days of the occurrence whereas appellant No.2 surrendered after 80 days. None out of them has explained his period of absconsion. The excuse which they pleaded in their applications moved by them before the Shariat Court was that the local police had cordoned off premises of the District Court of Criminal Jurisdiction, Pallandri and thus had made it impossible for them on account of this reason to avail remedy of pre-arrest bail from the said Court. It was never pleaded by them that even the Shariat Court was barricaded by the police as such they could not approach the Court on account of said reason. This Court after discussing law laid down by the Superior Courts in a case reported as Alam Zaib v. Haji Muhammad Ramzan and another 2000 M LD 1718 had laid down that bail after arrest or pre-arrest can be refused to an accused person who was guilty of absconsion. In the present case period of absconsion has not been explained by the accused-appellants, therefore, the learned Chief Justice of the Shariat Court was justified in law in recalling the order of bail allowed to the appellants on their application of pre-arrest bail by the District Court of Criminal Jurisdiction, Pallandri.
In view of the above this appeal having no force is dismissed. However, the accused-appellants who are presently in the custody of police since June, 2002 may renew their prayer for bail after arrest before the District Court of Criminal Jurisdictional Pallandri.