1. Police Applicant Uris son of Nathoo is involved in Crime No.83/85 of Station Tando Jam, District Hyderabad, registered on 7-7-1985, respect of commission of offences punishable under sections 302 and 323 read with section 34, P.P.C. He could not be arrested during the course of investigation.
2. He appeared in the Sessions Court, Hyderabad, on 25-11-1985, and made en application for bail before arrest. His bail application was dismissed by order, dated 30-11-1985. He was arrested by the Police on the same day. He made another application for grant of bail. The second bail application was dismissed by the learned Sessions Judge, Hyderabad, by order, dated 3-12-1985. This bail application has been filed thereafter.
3. The report of the commission of crime was made by Atta Muhammad, son of Shafi Mohammad Rajput. He alleged that he was discharging functions of a starter at Shahpur, Durpur and Khatian Suzuki Stand at Tando Jam on that day, when Iqbal Chandio and Uris Mirbahar approached him, at about 5-00 p.m., for getting them a Suzuki for going to Hyderabad but he could not get them a vehicle as they had not been paying fare for the vehicles hired by them. He further alleged that the same two persons Iqbal Chandio and Uris Mirbahar returned there alongwith two other persons by names Aslam Chendio and Abdullah Mirbahar, all armed, at about 6-00 p.m., and challenged him that they would not spare him As he had refused to get them a Suzuki on hire. He attributed guns to Iqbal and Abdullah, a dagger to Aslam, and a Revolver to Uris (who is the applicant). He next alleged that Iqbal and Abdullah started striking him with butts of their guns, whereupon he raised alarm, and Abdul Jabbar, Abdul Aziz, Mohammad Farooq and Shaukat Ali went there to rescue him, and Shaukat Ali from amongst them, who was ahead of others, was shot dead by Iqbal. This report was registered at 6-30 p.m.
4. The learned counsel for the applicant has urged that no overt act has been attributed to the applicant and case against him is identical to that against cc-accused Aslam who has been granted bail by this Court, vide order, dated 12-11-1985 in Criminal Bail A. No.322/85 and he may be granted bail on the same consideration. He has further urged that even co-accused Abdullah, who is alleged to have given blows to the complainant Atta Mohammad by the butt of his gun, has been granted bail by the Sessions Judge, Hyderabad by order, dated 17-11-1985. The learned counsel has submitted that an argument was advanced that the applicant had absconded but that argument would not hold good as the applicant had taken asylum in District Dadu in order to save the honour of his womenfolk, who would have been disgraced by the Police if he had courted arrest. He has further submitted that no proceedings under sections 87 and 88 of .The Criminal Procedure Code were taken against the applicant and he voluntarily surrendered before the Sessions Court and he could not be said to have absconded. He has placed reliance on the cases reported in PLD 1969 Kar. 200; 1980 SCMR 208 and 1986 SCMR 166.
5. Mr. Aftab Ahmed Akhund Advocate who has appeared to represent the complainant in the case, has urged that the applicant had absconded after commission of the crime and he remained at large for over five months and he, being a fugitive from law, is not entitled to the grant of bail. He has placed reliance on three cases of the Supreme Court reported in PLD 1985 SC 182; PLD 1985 SC 402 and 1985 SC N1 R 382. He has also opposed the application on merits, contending that the case against the applicant is distinguishable from that against co-accused Aslam and Abdullah in as much as that he and Iqbal co accused had picked up grudge against the complainant Atta Mohammed as he had refused to get them a Suzuki on hire earlier and they had left annoyed and they returned later, 'duly armed, and brought two more persons and attacked the complainant, and Iqbal actually shot dead one of the persons who had ventured to rescue the complainant.
6. The learned A.A.-G. Has conceded that the case against the present applicant is identical to that against co-accused Aslam and Abdullah, who have been released on bail as stated by the learned counsel; but he has opposed the application, on the ground that the applicant had absconded after commission of crime and the explanation given by him is not plausible and therefore he is not entitled to release on bail in the light of the authorities cited by the learned Counsel for the complainant.
7. The case against the applicant on facts is more or less, similar to that against the co-accused Aslam and Abdullah who have been released on bail. However, the application has been mainly opposed on the ground of his abscondence after commission of the crime. It is not disputed that he had disappeared and he could not be apprehended A during the course of investigation of the crime. The incident took place on 7-7-1985 and he remained at large till 25-11-1985 when he appeared before the Sessions Court and made an application for bail before arrest. This duration covered a period of more than 4J months.
8. Grant of bail to the accused who had evaded arrest during the course of investigation of the crimes, was recently considered by the Supreme Court in the following cases: (1)Awal Gul v. Zawar Khan and others PLD 1985 SC 402.
9. (2)Ibrahim v. Hayat Gul 1985 SCMR 382.
10. (3)Mohammad Sadiq v. Sadiq & others PLD 1985 SC 182.
11. The case pt serial No. 1 was decided on 28-11-1984. Following passage from its judgment enunciates the principle to be adopted in considering grant of bail to an accused who has evaded arrest: "Unfortunately it has not been noticed in the High Court that all the accused in this case absconded. It has also been ignored that in proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye-witnesses on showing the, conduct of the accused). It has also been unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In "some recent decisions also this question has been duly highlighted. They are Rais Khan v. Said Hanif and another (1). Rao Qadeer Khan v. The State (2), Hayat Bakhsh and others v. The State and (3), Kh.
12. Azhar Hussain and another Vs. The State (4). It is now well-established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well-established proposition that unexplained noticeable disentitles a person to the concession of bail notwithstanding the merits of the case. The principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries, etc is simply lost or. Is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law). The explanation of the learned counsel for the respondents that people some time abscond from fear of being killed in retaliation is too were to be accepted. It will be only in exceptional circumstances that when whole material for such a situation is analysed and apprehension is treated as absolutely well-founded that it might be so treated. Actually (ordinarily) the arrest and custody with the law enforcing agency furnishes better chance of protection than remaining at large and making on self-available always to the adversaries. It is also no defence in the present proceedings that two of the respondents surrendered themselves for bail before arrest. They did so after an abscondence of about three months."
13. The Case at serial No. 2, 1985 SC M. R 382 was decided on 22-12-1984. Following passage from the judgment of that case further elucidates the principle of grant of bail in the case of abscondence of the accused: "Learned counsel for the respondents while accepting that abscondence for a long time has to be taken into account when considering the question of bail in cases covered by the prohibition contained in section 497 (1), Cr. P.C., has contended nevertheless that there can yet be exceptional cases in which notwithstanding long abscondence bail might be allowed. On merit c, he has contended that the mere fact that the deceased had his dying declaration charged the appellant of having effectively shot at him, should not have made any difference when the eye-witnesses who including his injured Father, the present appellant have not been relied upon in a properly held trial of the co-accused of the respondent.
14. "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 the evidence led by the prosecution. The law earlier laid down in respect of persons who become fugitive from law does not leave anything in doubt in this behalf.
15. However --it is correct that in some rare cases notwithstanding abscondenec the accused might be released on bail, for example, when --accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C.
16. And/or the so-caller; abscondence is satisfactorily explained by the accused so as t, establish that in reality it did not amount to abscondence.--- The third authority on the question of the grant of bail to an absconding accused is contained in the case at serial No. 3, PLD 1985 SC 182 This case was decided on 12-1-1985 and the earlier two cases were referred to and the principles highlighted in both the earlier cases have been summarised as under: "But as regards the other question viz. The effect of abscondence of the accused for a period of six months on their right obtain bail we feel that this question has not been given attention by the learned Judge in his order. The effect abscondenee as explained by this Court in its two recent judgments, is that the person becoming a fugitive from law loses some of the normal rights granted to accused persons by the procedural as also substantive law and disentitles himself to the concession of bail unless he can satisfactorily explain the period of his abscondence."
17. The learned counsel for the applicant has contended that the applicant has submitted satisfactory explanation regarding his remaining at large and therefore, his case is not hit by the principle laid down in the aforesaid cases of the Supreme Court regarding the abscondence of an accused. He has also contended that the question of grant of bail is not to be restricted only to the allegations of abscondence but the merits of the case also may be looked into. He has placed reliance on the observations made in the case at serial No. 2 Ibrahim v. Hayat Gul 1985 SCMR 382 and made pertinent reference to the following passage: "However it is correct that in some rare cases notwithstanding abscondence the accused might be released on bail, for example, when the accused is a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C.
18. And/or the so-called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence."
19. The principle of grant of bail in the case of abscondence of an accused enunciated in the case reported in PLD 1985 SC 402, elucidated in the case reported in 1985 SCMR 382, referred to above, stands amplified in the observations made in the case reported in PLD 1985 SC 182, reproduced above, that an accused alleged to have absconded is not entitled to the concession of bail on merits unless he satisfactorily explains his abscondence. As stated above, the explanation furnished by the applicant that he had taken asylum in District Dadu in order to save the honour of womenfolk does not seem to be satisfactory and could not be a reasonable ground for going in hiding and evading process of law for more than four months. As regards the arguments that the applicant could not be burdened with the liability of abscondence unless proceedings under sections 87 and 88, Cr.P.C. Were taken, it would be observed that those proceedings E are essentially meant for compelling a fugitive from law to submit to the process of law. The cases cited by the learned counsel for the/ applicant viz. PLD 1969 Kar. 200 1980 SCMR 208 and 1986 SCM R 166 laying down that the factum of abscondence to constitute corroborative evidence must be proved by positive evidence that the accused had remained at large despite the proclamation issued for his appearance in Court. For the purpose of consideration of accused from concession of bail in mere evasion of arrest for considerable time is a circumstance disentitling the ail in the light of the Supreme Court authorities quoted above. In the case of applicant, his own explanation is that he had gone into hiding to evade arrest and that amounted to an adverse circumstance to be taken into consideration in grant of bail.
20. For the aforesaid reasons, the application merits dismissal and is dismissed.