1. The relevant facts giving rise to this bail application are that FIR Bearing No. 11/1998 was lodged at P.S. Gulab Leghari, by complainant Gul Muhammad Khan, on 1.7.1998, alleging commission of offences punishable under Sections 324, 430/34 PPC, against accused Zafar Ali, Mukhtar Ali, Munawar Ali and Mumtaz Ali, all sons of Abdul Rauf Leghari. The allegations in the FIR were that the complainant was flowing water in the land of his uncle when the accused persons arrived there and expressed that they will divert the flow of water for filling their water reservoir. The complainant did not allow them to divert flow of water on which the accused persons threatened the complainant and ultimately fired with armed weapons at the complainant with the intention to commit his murder. However, the complainant took shelter behind a Babool tree with the result that all the fires were ineffective. No injury was sustained.
2. Accused Mumtaz Ali, Mukhtar Ali and Munawar Ali submitted an application for bail before arrest before the learned Sessions Judge Badin, who granted pre-arrest bail to the applicants for the reason that no injury was caused to any person and the parties who were related to each other were not on good terms. The bail was granted on 5.8.1998.
3. Thereafter, all the accused persons including the present applicant attended the proceedings in the trial Court but on 13.11.1998 the applicant Mumtaz Ali remained absent whose absence was condoned. The applicant remained absent even thereafter and therefore on 12.12.1998 bail granted to the applicant Mumtaz Ali was cancelled. After a protracted proceedings the applicant was declared absconder on 21.11.2002. He was re-arrested on 22.4.2006.
4. 'Co-accused who are brothers of the present applicant were tried by the learned trial Court and vide judgment dated 27.4.2005, learned Assistant Sessions Judge Matli to whom the case was transferred by the learned Sessions Judge Badin held that the offence under Section 430 read with Section 34 PPC was proved and therefore, three co-accused persons were convicted for the commission of offence under Section 430 read with Section 34 PPC and were sentenced to undergo R.I. for 3 years. Benefit of doubt was extended to all the three accused persons in respect of offence punishable under Section 324 PPC and they were acquitted of the said charge.
5. 'The convicted accused persons preferred appeal against their conviction before the learned Sessions Judge Badin. According to Mr. M. M. Aqil Awan, learned counsel for the applicant, the complainant did not file any appeal challenging acquittal of the three convicts for the offence punishable under Section 324 PPC, but submitted revision application praying enhancement of the sentence.
6. 'The father of the accused persons submitted application for transfer of appeal from the Court of Sessions to the High Court for the reason that his brother is an influential person and is exerting his influence on the Appellate Court. The appeal was therefore, transferred to the Circuit Bench of this Court at Hyderabad. Subsequently, revision application was also transferred to the Circuit Bench Hyderabad. The appeal and revision were subsequently transferred to the principal seat at Karachi.
7. 'After his arrest the present applicant Mumtaz Ali on 22.4.2006 submitted bail application before the learned trial Court which was dismissed on 12.7.2006, mainly for the reason that the applicant was granted bail before arrest but he mis-used the concession and jumped' over the bail inspite of being aware of the proceedings and did not surrender before the trial Court. While rejecting the bail application the learned Assistant Sessions Judge Matli further observed that the applicant is prima facie connected with the commission of offence and the offence for which accused is facing trial hits the prohibitory clause to Section 497 Cr.P.C.
8. 'After the dismissal of bail application by the learned trial Court the applicant submitted bail application before the Circuit Bench of this Court at Hyderabad on 17.8.2006'hich was subsequently transferred to the principal seat at Karachi.
9. 'I have heard Mr. M. M. Aqil Awan, learned counsel for the applicant, Mr. Haider Shaikh, learned State Counsel and Mr. Shahadat Awan, learned counsel for the complainant. Mr. Shahadat Awan has raised preliminary objection to the submission of bail application before the High Court. He has submitted at the bail application was rejected by the trial Court presided over by an Assistant Sessions Judge and according to him if an Assistant Sessions awards sentence up to 4 years, then the appeal lies to the Sessions Judge and not to the High Court. The appeal shall lie to the High Court in case an Assistant Sessions Judge passes a sentence of imprisonment for a term exceeding 4 years. He has submitted that on the same analogy in case of rejection of bail by an Assistant Sessions Judge which amounts to decide a case, the bail application should be submitted before the Sessions Judge, and thereafter, if there are any circumstances warrarnting transfer of the case from Sessions Court to the High Court, an application may be submitted in that behalf which can be considered by the High Court. He has therefore, submitted that the submission of bail application directly before the High Court is not maintainable. However, Mr. Shahadat Awan, has conceded that under the law, the High Court is empowered to proceed with any criminal case which is within the competence of subordinate Courts and in appropriate cases the High Court can entertain and decide the cases directly.
10. Mr. M. M. Aqil Awan, has submitted that under Section 6 of Cr.P.C. besides the High Court two other Courts are envisaged. The first category is Court of Sessions and the second is Court of Magistrate.
11. He has further stated that under' Section 9 Cr.P.C, the Provincial Government, may also appoint Additional Sessions Judges and Assistant Sessions Judges to exercise jurisdiction of the Sessions Court. He has next submitted that under Section 193(2) Cr.P.C., Additional Sessions Judges and Assistant Sessions Judges shall try such cases only as the Provincial Government by general of special order may direct them to try, or as the Sessions Judge of the division, by general or special order, may make over to them for trial. He has submitted that in this case the learned Sessions Judge transferred the case initially to the learned IInd Additional Sessions Judge and subsequently to the Assistant Sessions Judge Matli. He has further submitted that under sub-section (3) of Section 31 an Assistant Sessions Judge may pass any sentence authorized by law, excepting the sentence for death or imprisonment for life or of imprisonment for a term exceeding seven years.
12. He has next argued that under Section 408 Cr.P.C. the conviction awarded by an Assistant Sessions Judge may be assailed in the appeal before the Court of Sessions subject to the condition that when in any case an Assistant Sessions Judge passes sentence of imprisonment for a term exceeding four years, the appeal hall lie to the High Court.
13. He has maintained that in view of the above provisions, the Assistant Sessions Judge is a part of the Sessions Court and the cases tried by him are the Sessions trial, therefore, judgment/orders passed by the Assistant Sessions Judge shall be treated as judgments/orders passed by the Sessions Court The normal course is that in case of judgment of conviction and sentence the appeal shall lie before the High Court and in case of rejection of the bail application by the Sessions Court the accused person is to submit bail application before the High Court. The only exception being that in case of sentence below the period of four years, the appeal shall lie to the Sessions Judge.
14. He has next submitted that in addition to the above contention the High Court is empowered to try any case which is in competence of the subordinate Courts and the High Court may even try a Sessions case on original side. He has submitted that in the present case there are special circumstances to the effect that there is admitted enmity between two brothers. Sons of one brother are involved in the case. Three of whom have been convicted and the applicant Mumtaz Ali has not been tried so far. The other brother is an influential person and for that reason the appeal at the instance of three convicted co-accused and the revision application at the instance of complainant were first transferred from the Court of Sessions Judge, Badin to the Circuit. Bench at Hyderabad, and thereafter on submission of transfer application by the convicts, the appeal and revision application were transferred from Circuit Bench at Hyderabad to principal seat at Karachi.
15. The two learned judges sitting at Hyderabad declined to proceed with the present bail application and consequently, the bail application was also transferred to the principal seat at Karachi by the Hon'ble Chief Justice. He has, therefore, submitted that since the appeal and revision application are being heard at, principal seat at Karachi and a learned single Judge of this Court has suspended the operation of sentence awarded to three co-accused and they have been released on bail, it would be appropriate if the present bail application is also heard by the High Court at principal seat at Karachi.
16. 'The learned State counsel has supported the objection raised by Mr. Shahadat Awan and has submitted that in the ordinary course the bail application ought to have been submitted before the learned Sessions Judge Badin and thereafter if any transfer application was submitted by any party the same could be transferred to the High Court.
17. 'I have carefully considered the contentions raised by the .learned advocates for the parties and peculiar facts and circumstances in this case.
18. The trite law pertaining to procedure is that the procedural technicalities technicalities should not be stretched to the extent, which may cause miscarriage of justice. Procedural laws are meant for advancing interest of justice and hyper technicalities should not be acted upon in a manner, which may thwart the dispensapon of justice.
19. 'In the peculiar facts and circumstances in this case the appeal at the instance of three convicted accused (brothers of applicant. Mumtaz Ali) and revision at the instance of complainant have been transferred first from Sessions Judge, Badin to the Circuit Bench at Hyderabad and thereafter from Circuit Bench Hyderabad to the principal seat at Karachi. The two learned Judges of this Court sitting singly at Circuit Bench Hyderabad have declined to hear the present bail application. The admitted position of law is that the High Court has the jurisdiction to try any case which is within the competence of subordinate Courts if the circumstances so require. I am of the considered opinion that in the facts and circumstances of the present case it would be appropriate to hear the bail application by this Court, without going into the technicalities particularly for the reason that it would not amount to wrong exercise of jurisdiction by this Court for commission of any illegality or commission of any irregularity causing miscarriage of justice. Since this Court has the jurisdiction to hear the bail application, therefore, the objection is overruled.
20. 'This brings me to the merits of the case.
21. 'Mr. M. M. Aqil Awan, has submitted that the application for pre-arrest bail on behalf of all the four accused persons was initially considered by the learned Sessions Judge Badin before whom the application was submitted and on consideration of merits he granted bail to all the four accused persons including present applicant Mumtaz Ali. He has submitted that so far, the merits are concerned, it already stands decided that the applicant was entitled to be released on bail. He has further pointed out that an application for cancellation of bail to all the four accused was submitted by the complainant but neither the learned Sessions Judge Badin nor the transferee Court deemed it fit to cancel the bail.
22. 'He has further submitted that the uncle of applicant being a very influential person was causing harassm ent by filing false FIRs at short intervals therefore, the applicant Mumtaz Ali absconded in order to save himself. He has pointed out that on 1.7.1998 the FIR in this case being Crime No. 11/1998, P.S. Gulab Leghari was registered. Another FIR were registered on similar set of facts on 27.10.1998 being Crime No. 21/1998 at the same P.S. The third FIR was registered on 1.11.1998 being Crime No. 22/1998 at the same P.S. on the identical allegations. He has further submitted that the applicant was granted bail on merits and after re-arrest he has remained in custody for about 5 months and 15 days which is a sufficient punishment for absconding. In support of his contention he has placed reliance on a single bench judgments of this Court in the case of Dosoo v. State, 2003 P.Cr.L.J. 933.
23. In the cited case the applicant was granted bail on merits on 5.9.1996. He jumped over the bail on 19.7.1999 and remained fugitive from law up to 12.4.2002. The learned Single Judge of this Court granted bail for the reason that he remained in jail for about 8 months after this arrest and thus, he was sufficiently punished. It would be appropriate to observe here that the learned single judge who granted bail in the cited case is one of the persons who in this case is alleged to be supporting the complainant party being retired judge of this Court and near relative of another retired judge of this Court who was Sessions Judge at the time of lodging of FIR and was subsequently elevated to this Court. He has further submitted that although the abscondence by an accused person takes away some of his rights in the matter of bail but the rule is not absolute as it is not a rule of law but a rule of prudence on the principle that a person misusing concession of bail must normally be dis-entitled for the concession, for second time. He has, however, submitted that the abscondence is of two types one is the abscondance with guilty conscience and the other is abscondence of innocent person in order to save himself from the excess of investigation agencies because of lack of confidence in such agencies or to face the ordeal of criminal trial. In this regard he has placed reliance on a D.B. judgment of this Court in the case of Abdul Wahab v. The State, 2003 Y.L.R. 1915, wherein after examination of various judgments of the Hon'ble Supreme Court it was observed that in a situation where there is simple abscondence of an accused it should not come in the way of grant of bail to him as the said person would be entitled to bail under Section 497(2) Cr.P.C. as a matter of right and not as a matter of concession. The learned D.B. placed reliance in this behalf on the judgment of Hon'ble Supreme Court in the case of Sher Ali alias Sher v. The State 1998 SCM R 190.
24. 'On the other hand, Mr. Shahadat Awan learned counsel for the complainant has vehemently argued that abscondence of an accused person after the grant of bail, dis-entitles him from further indulgence. He has placed reliance on the following judgments by the Hon'ble Supreme Court:-- 1.Jan Muhammad v. The State, 1978 SCM R 287.
25. 2.Rais Khan v. Said Hanif, 1979 SCM R 90.
26. 3.Ibrahim v. Hayat Gul, 1985 SCM R 382.
27. 'He has further placed reliance on a single bench judgment of this Court in the case of Shakeel Ahmed vs. The State 2000 P.Cr.L.J. 116.
28. 'In the case of Jan Muhammad (supra) the facts were that the petitioner Jan Muhammad was named in FIR for committing murder.
29. 'Applicant absconded and was arrested subsequently. In the meanwhile his father was tried and acquitted by the Sessions Judge. The Additional Sessions Judge Peshawar granted bail to Jan Muhammad on the ground that co-accused was acquitted. The granted of bail was challenged before the High Court and Peshawar High Court cancelled the bail. The Hon'ble Supreme Court held that the trial against the petitioner's father was not relevant as the quality of evidence has to be judged independently of the previous findings. It was also observed that, as the matters stand, the fatal shot has been attributed to the petitioner by the prosecution".
30. 'In the case of Rais Khan v. Said Hanif, the relevant facts were that deceased person charged his father and three paternal uncles alongwith the petitioner for having fired at him and his maternal relations. Three persons expired in the incident. The petitioner absconded and co-accused Dolas Khan was tried and acquitted. The petitioner surrendered after dismissal of acquittal appeal and the petitioner was then granted bail by We Sessions Judge for the reason that the co-accused Dolas Khan was acquitted. The bail was cancelled by the High Court for the reason that in the dying declaration the petitioner was specifically charged with the commission of offence and he had absconded for many years. The Hon'ble Supreme Court refused the leave to appeal. The petition was dismissed.
31. 'In the third judgment i.e. Ibrahim v. Hayat Gul, the petitioner absconded after commission of offence, and surrendered after the co-accused was tried and acquitted. The learned Sessions Judge refused bail for the reason that he was directly charged by the deceased person in his dying declaration as a main culprit who shot at him. The High Court granted bail for the reason that co- accused was acquitted and therefore, the applicant was entitled to grant of bail and that the abscondence of accused could not be considered as an impediment in this behalf. The Hon'ble Supreme Court cancelled the bail granted by the High Court. Mr. Shahadat Awan, has placed reliance on the following passage from the judgment of Hon'ble Supreme Court:- "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 evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave any thing 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 woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under sub-section (2) of Section 497 and/or so called abscondence is satisfactory explained by the co-accused so as to establish that in reality it did not amount to abscondence."
32. In the last judgment by learned single Judge of this Court, it was held that the accused was fugitive from law for a long period without any explanation and therefore, the concession of bail could not be extended to him. It was further observed that the abscondence dis-entitles an accused of concession even if his case does not fall within the prohibitory clause to Section 497 Cr.P.C.
33. 'The learned State Counsel has adopted arguments addressed by Mr. Shahadat Awan, learned counsel for the complainant.
34. 'I have carefully considered entire facts and circumstances of the case, the contentions raised by the learned advocates for the parties and the judgments on which they have placed reliance.
35. 'I am persuaded to agree with the submission of Mr. M.M. Aqil Awan, that there are two categories of abscondence as fully explained by the learned D.B. of this Court in the case of Abdul Wahab v.
36. The State (Supra). The first category where an absconding accused destroys the prosecution evidence or conceals or allows any valuable evidence to dis-appear, such as discovery of weapon, blood-stained clothes, discovery of dead body or place of incident, reducing the value of identification test and so also for the abscondence is more grievous and would lead to adverse inference against such accused perron. However, if the abscondence falls in the second category whereby the prosecution has not been affected and where there are circumstances in which the accused has absconded to save himself from further harassment, the gravity is less and in such cases the bail is not to be withheld in all cases as an absolute rule. In the cases where the bail plea is considered for the first time after arrest of an absconding accused person the factum of abscondence can be considered alongwith the merits of the case and if the accused is not found entitled to be released on bail the factum of abscondence shall further diminish the possibility of relief of bail to such accused persona However, if as in this case, the accused was already granted bail on merits then were abscondence would not operate as absolute rule for refusal of bail. In all the cases on which Mr. Shahadat Awan has placed reliance, I have found that the absconders absconded at the very initial stage and their bail applications were not considered on merits prior to their arrest and almost, all such persons were attributed fatal shot or main role of the commission of offence. In two cases such accused persons were implicated in the dying declaration by the deceased persons. At this stage, it would be appropriate to reiterate the law of precedent pertaining to the criminal cases, that the judgments in criminal cases shall not be taken as precedent in all the cases except where a principle of law is enunciated or the facts of the two cases are identical, which is seldom in criminal cases. In all the judgments which have been relied upon by the learned advocates the principles of law enunciated are, first, that there are two categories of abscondence. The one in which the absconder destroys the prosecution case/evidence and the other one in which there is no such effect but the accused on account of certain circumstances or to save himself from harassment,resorts to abscondence.
37. 'In first category, the abscondence shall always adversely affect the grant of bail, while in the second category the case is to be considered in the light of facts and circumstances prevailing therein. The second principle has been laid down by the Hon'ble Supreme Court that the abscondence dis-entitles a person from grant of bail but the rule is not absolute and there are exceptions, one of which is that if an accused is entitled to grant of bail as a matter of right then it is not to be refused. I am of the considered opinion that rule of refusal of bail on account of abscondence is not a rule of law, but a rule of prudence, discipline and propriety. It is not absolute but relative. The grant or refusal of bail is to be considered in the light of facts and circumstances in each case, depending on merits.
38. 'Examining the present case in the light of the law laid down in the judgments cited at bar I, find substance in the contention of Mr. M.M. Aqil, that since in a span of four months three FIRs were lodged against applicant Mumtaz Ali on similar set of facts, he had apprehension that if he will remain on surface, many other FIRs may follow and therefore, he went underground. In addition, the applicant was found entitled to bail on merits by the learned Sessions Judge and the application for cancellation of bail remained unattended by the trial Court. The accused has already remained in jail for a period of 5 months and 15 days after his arrest and the punishment provided under Section 430 Cr.P.C. is 5 years or fine or both. A perusal of Section 430 P.P.C. shows that it is provided that who ever commits mischief by doing any act which causes or which he knows are likely to be caused, diminution of the supply of water for the agriculture purposes or for food or drink for human beings or for animals which are property, or for cleanliness or for carrying on any manufacture; shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. The expression mischief is defined in Section 425 PPC, to the effect that who ever within intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits 'mischief'.
39. 'In explanation 1, the legislature has provided that it is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrongful loss or damage to any person by injuring any property, where it belongs to that person or not. Thus, the condition precedent for causing mischief is to cause injury to such property by destruction or change or diminishing its value or utility. In the present case, according to FIR there was only an attempt to divert the water. There is no allegation that any injury was caused to the property meaning thereby the drain through which the water was flowing. Thus, looking to these facts also the applicant appears to be entitled to the grant of bail.
40. 'In the above circumstances, the accused who has already remained in jail for a months and 15 days is granted bail in the sum of Rs. 1,00,000/-(Rupees One Lac) with P.R. bond in the like amount to the satisfaction of the learned trial Court.
41. 'Before parting with this order I would like to clarify that all the observations made in this order are tentative in nature and shall not affect at all the trial Court in deciding the case of applicant after recording of evidence and shall have no bearing on the merits of the appeal and revision pending before this Court and no advocate shall place reliance while arguing appeal/revision pending before trial Court on the observations contained in this order.