ASLAM RIAZ HUSSAIN, J.-Through this application under Order XXIII, rule 2 of the Supreme Court Rules, read with Order XXXIII of the said Rules the applicant seeks extension of time and permission to refile the petition for Special 1-eave to Appeal against the judgment of a Division Bench of the High Court dated 29-8-1979, confirming the sentence of death in a case under section 302, P. P. C..
2. Facts giving rise to the petition are that Ali Ahmad Sabri was tried alongwith 2 others, namely Muhammad Din alias Daddu and Muhammad Salim for the murder of one Sher Muhammad which took place on 10-8-1976, on a public thorough fare in Sahiwal. The learned trial Court acquitted Muhammad Saleem but convicted the petitioner and his co-accused, Muhammad Din, and sentenced both of them to death under section 302, P. P. C. They fled an appeal in the High Court against their conviction and sentence. The matter was also referred to the High Court under section 374, Cr. P. C. For confirmation of the death sentence.
3. During the pendency of the appeal, the petitioner applied for bail on the ground that he was suffering from a serious disease of the ear which required surgery urgently and - on the basis of medical report confirming this plea he was granted bail on 29-8-1977. On 2-12-1980, the High Court dismissed the appeal of both the accused but while he reduced the sentence of Muhammad Din alias Daddu (co-accused) to imprisonment for life he confirmed the de4th sentence of the petitioner.
4. Feeling aggrieved the petitioner filed petition for special leave to appeal before this Court through an A. O. R. Whom he had given a duly executed power of attorney. The petition was, however, returned by the office to the A. O. R., vide letter dated 7-6-1981, on the ground that he had failed to surrender as required by rule 8 of Order XXIII of the Supreme Court Rules, 1980, therefore, his petition was not entertainable. After a period of more than 300 days the petitioner sought to file another petition for leave to appeal, and since it was time-barred, he made the present application for condonation of delay and extension of time for filing the petition.
We have heard the learned counsel for the petitioner and that of complainant/caveator.
5. Learned counsel for the petitioner submitted that the petition had been made under great mental agony during the protracted trial and since he was facing death sentence he had become frustrated and bad lost his balance of mind. He stated further that the petitioner had been wandering around visiting the shrines of various Peers in the provinces of Sind and Punjab. He argued that, as such the petitioner's disappearance was neither intentional nor wilful and he should, therefore, be permitted to refile his petition for leave to appeal.
6. The learned counsel for the complainant/caveator on the other hand submitted that the petitioner had misused the concession of bail and was fugi--tive from justice. He relied on Hayat Bakhsh v. The State (PLD 1981 SC 265) to urge that a fugitive from justice is not entitled to any such concession and can even be denied a hearing through a counsel. He also pointed out that after obtaining bail the petitioner had not surrendered himself but had been arrested by the police in Sahiwal on 6-11-1981, while going on a motor cycle and on his personal search he was found in possession of '32 bore revolver ; 23 bullets and currency notes worth Rs. 3,000.
In the answer the learned counsel for the petitioner submitted that the case in law was distinguishable from that of Hayat Bakhsh. In the present case the petitioner was merely seeking the extension of time for filing his petition for leave to appeal and was not asking for `hearing'. We have considered the facts narrated above and the contentions raised by the learned counsel for the petitioner. We are of the view that the petitioner was indeed fugitive from justice and was also guilty of misuse of the concession of bail granted to him by the Court. He was aware of the dismissal of his bail by the High Court and had engaged an A. O. R. And given him a duly executed power of attorney for filing a petition for leave to appeal. Obviously he deliberately failed to surrender as required by the Rules and has put forward lame excuses of condonation of delay for obtaining permission t file a petition for Leave to Appeal after so much delay. We are of the view that being a fugitive from justice he is not entitled to this concession. The petition is therefore dismissed as being without merit.