Applicant Munawar with his brother Ali Akbar alias Bahloo is facing trial for murder of Muhammad Iqbal son of Karamat Ali before Additional Sessions Judge, Kandiaro. Allegation against them is that due to altercations having taken place in between Munawar and the deceased in the morning over the amount outsanding against the former. The two accused both, brothers inter se chased the victim on a motorcycle and after reaching close, to his motorcycle he was fired at by Munawar.
In the result of bullet injury he expired.
2. The incident is said to have been reported to police at 5-45 p.m. On the same day i,e, 28-3-1999.
Karamat Ali, the father of eie deceased, stated in the F.I.R. that he has agency from Liver Brothers at Kandiaro which was being run by him, his two sons namely Muhammad Iqbal and Shamshad with the assistance of their employee Muhammad Ramzan. All- of them used to go from their native place Behlani on two motorcycles to Kandiaro and return from there in the evening. Munawar had taken the items for use in the house on credit basis and an amount of Rs,5,000 was oustanding against him which he was not paying. On the day of incident in the morning when he (Karamat AID and his on Muhammad Iqbal were proceeding to Kandiaro ion a motorcycle, Munawar met them at the road and Muhammad Iqbal demanded the money---over that they entered into altercations and Munawar said that he shall see him (Iqbal) as he had insulted him on the road.
Muhammad Iqbal and his father then went to Kandiaro. It is further in the F.I.R. that after closing their shop in the, evening they were returning to their native place on two motorcycles in routine.
On one Motorcycle were Muhammad Iqbal and his father Kararnat Ali and on the other Shamshad and Muhammad Ramzan. The motorcycle being driven by Muhammad Iqbal was ahead of the other motorcycle. At about 5-0, p.m. when they arrived at Mirzapur This Stop accused Ali Akbar alias Babloo and his brother Munawar were seen approaching towards them on a motorcycle in high speed. After coming close to them Munawar picked up pistol from the fold of his Shalwar and fired at Muhammad Iqbal. The latter received bullet injury on his head. He and his father fell down from the motorcycle. The incident was witnessed by Shamshad and Muhammad Ramzan who were' following the victim and his father on another motorcycle.
3. The injured was rushed to Kandiaro Hospital and given medical aid there. He, however, could not survive and succumbed to the injury at about 7-15 p.m. After that his father Karamat All went and lodged the F.I.R. at Kandiaro Police Station.
4. During investigation Munawar was arrested on 20-10-1999 whereas applicant Ali Akbar was challaned in absentia as absconder.
He was arrested nearly about one year after the arrest of Munawar i.e. 16-9-2000.
5. After proceeding under sections 87 and 88, Cr.P.C. some evidence was recorded in presence of Munawar but latter on in consequence of the order passed by this Court in Criminal Revision No.44 of 2001, the joint trial was started.
6. The bail plea of the two accused could not succeed before the trial Court, therefore, present application has been filed.
7. At the very outset, learned Advocate for the applicant did not press the application on behalf of Munawar.
8. While arguing on behalf of applicant Ali Akbar, the learned Advocate contended that as regards the absconsion that cannot be used against the applicant in view of the order of this Court in Criminal Revision No.44 of 2001. On merits, learned Advocate contended that the applicant has not been attributed any overt act. He did not cause any injury to the deceased. Therefore, he deserves the concession of bail. In support of his arguments, he relied upon 1994 SCMR 2161 and 2001 PCr.LJ 1349.
9. Learned A.A.-G. and the complainant's Advocate have opposed the bail application arguing that in view of the happening of the events section 34, P.P.C. is fully attracted. The applicant is the person who accompanied Munawar and brought him on a motorcycle to the place of incident after given chase to the victim. They have also contended that the prolonged abscontion of the applicant also cannot be lost sight of as the order of this Court in Criminal Revision No.44 of 2001 was in respect of the joint trial.
10.It must be mentioned here very clearly that the order of this Court was in respect of the proceedings under sections 87 and 88, Cr.P.C. also and not only on the point of joint trial. The proceedings under sections 87 and 88 were clearly held not to be as required by the law. However, the absconsion and the proceedings under sections 87 and 88, Cr.P.C. are two different aspects of the matter. Nowhere, in the order, it has been held that this accused did not abscond after the incident.
11. While explained the absconsion applicant's learned Advocate contended that he was not aware of the registration of case and its pendency against him. Without going very deep into the question; the explanation does not seem to be plausible in presence of the realities that real brother of this accused was arrested and the Court had issued N.B.Ws. against this accused before passing the so-called order under sections 87 and 88, Cr.P.C. Therefore, the noticeable and prolonged absconsion remains in his account at this stage for the purpose of bail.
Much was argued on the point that absconsion even if prolonged cannot be made basis of any presumption against the accused/applicant unless he is legally and validly declared proclaimed offender under section 87, Cr.P.C. I am afraid the contention cannot be agreed to. The landmark decision of the Hon'ble apex Court on this point has been reported in PLD 1978 SC 102. The decision of the Hon'ble Full Bench in the case of Bacha Saeed v. The State came on 26-4-1977. After considering the pronouncement of Sindh High Court reported in PLD 1969 Karachi 200 on the question of abscondence and detailed examination of all the relevant provisions of law specially the sections 87, 88, 512, Cr.P.C. and section 172 of P.P.C. and in the result of exhaustive discussions, pronouncement of Sindh High Court reported in PLD 1969 Karachi 200 was not approved holding that for treating an accused as an absconder for the purpose of raising any presumption of guilt against him proceedings declaring him as proclaimed offender under section 87, Cr.P.C. were not essential.
The relevant part of the judgment is reproduced hereinbelow:-- "The term 'abscond' 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. From this it is evident that the proclamation was issued only after the Court has reasons to believe, whether after taking evidence or not, that any person against whom a warrant has been issued by it has absconded or was concealing himself with a view to avoid the service of the warrant on him. In other words the opinion thus formed by the Court that person wanted by it is an absconder must proceed before any such proclamation is issued against him. Similarly under section 90(a) a Court may in lieu of the summons for the appearance of any person issue a warrant for his arrest if it sees reasons to believe that he has "absconded" or will not obey the summons. In this behalf section 512(I) also lays down that if it is proved that an accused person has "absconded" and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution and record their depositions. In this connection section 172, P.P.C. lays down that whoever "absconds" in order to avoid being served with summons, notice or other proceedings from any public servant competent in this behalf shall be punished with simple imprisonment for a term which may extend to one month or with fine up to Rs.500 or with both. It appears that in this context the term "abscond" with its derivatives has been used in its ordinary sense in the criminal law in force in this country and not in any technical sense. It means a person who is intentionally evading and avoiding service of notices, summons of warrants issued to him and intentionally makes himself inaccessible to the process of the law. It is therefore, not necessary that the proceedings for declaring the accused as proclaimed offender under section 87 of the Code should have been complied with before he could be treated as an absconder to raise any presumption of guilt against him."
12. On merits, although this accused/ applicant is not alleged to have fired at or caused any injury to the deceased but he did play very important and vital role in the incident. According to the prosecution case it was he who brought his brother duly equipped with pistol at the venue of offence and that also after giving a chase to the victim and after that also he took away his brother. In presence of these events this applicant cannot be said to be on innocent mission while being with his brother. Learned A.A.-G. has rightly contended that section 34, P.P.C. is fully attracted in the present case. The pronouncements referred to by the applicant's learned Advocate are distinguishable as in those cases the role atributed to the persons having been granted bail was not of the nature which the applicant is said to have performed.
The applicant does not deserve the concession of bail. His bail application is dismissed.