CH.QAISAR A-HAMIDI, J. - This is an application for bail made on behalf of applicant Nizam-ud-din, who is facing trial before learned VII Additional Sessions Judge (East) Karachi, in Sessions Case No. 472 of 1990, (Crime No.34 of 1990) Malir Extensions P.S., under section 307-302/34 P.P.C. The bail applications made on his behalf were rejected earlier by learned Additional Sessions Judge.
2. Complainant Muhammad Saleem, a resident of Noor Afshan Colony, Malir Extension, Karachi, was present in his house on 8.2.1990, when at about 8- 40 A.M., he heard gun-shot reports. At that time his wife Mst. Jamila Begum, wife of his brother-in-law Mst. Anwari Begum and wife of one Siddique were present in front of the house. The shots were being fired from the house of one Noor Muhammad Naik and it is alleged that on account of this firing Mst. Jamila Begum and Mst. Anwari Begum were injured. They were taken to Jinnah Post Graduate Medical Centre, Karachi, where they were pronounced dead. On the same day at 10-10 A.M., the concerned police was informed about the arrival of Mst. Jamila and Mst. Anwari. The police-officer who had reached to Jinnah Post Graduate Medical Centre recorded the statement of complainant Muhammad Saleem under section 154 Cr.P.C, at 4-45 P.M., which was incorporated in 154 Cr.P.C, book at 6-10 P.M.
During the course of investigation, the police officer examined Muhammad Mustaqeem, Abdul Rafiq, Muhammad Siddique and Zahid Ali, who implicated the present applicant for the first time on 4.3.1990 as one of the culprits. On 12.3.1990 Muhammad Mustaqeem, Abdul Rafiq and Muhammad Siddique were produced before a First Class Magistrate, who recorded their 164 Cr.P.C, statements.
Since the applicant was not traceable, he alongwith others were sent up in absentia under section 512 Cr.P.C. On 23.7.1990, Ali Muhammad H.C., who is process -server in this case was examined on oath and thereafter order for the issuance of proclamation under section 87 and 88 Cr.P.C, was passed by the learned Additional Sessions Judge with the direction that the prosecution may produce evidence to be recorded under section 512 Cr.P.C. No evidence was, however, recorded under section 512 Cr.P.C, and on 30.7.1990, the case against the applicant and other accused was kept on dormant file. On 10.4.1990, the applicant was arrested and the proceedings against him revived. The applicant made applications for bail before the Addl:Sessions Judge, but without success. It is in these circumstances that he has approached this court with the same prayer.
3. I have heard Mr. Khawaja Sharf-ul-Islam, learned counsel for applicant and Mr. Shoukat H.
Zubedi, learned counsel for State. The latter has raised no objection to the grant of bail to applicant.
4. The bail was refused to applicant mainly on the ground that he was fugitive from law and in view of the rule as laid down by the Supreme Court that an absconder loses some of the normal rights granted by procedural as also substantive law, this concession was refused to him. The cases reported as Ibrahim vs. Hayat Gul and others (1985 S.C.M.R.382) and Muhammad Sadiq vs. Sadiq and others (P.L.D.1985 S.C.182) are leading judgments on this point. However, before denying the concession of bail to an accused person on this ground there should be sufficient material to indicate that the accused person was in fact a fugitive from law. The perusal of the record shows that the applicant was not an absconder. Ali Muhammad, H.C., who is the processerver in this case has testified in clear terms that the applicant, who had gone to perform Hajj, had not returned. As observed in the case of Fazal Rahim vs. Emperor, reported in A. I.R.1934 Peshawar 70, it is incumbent on the prosecution to prove that the accused was present in the village where the offence took place before the occurrence and that he disappeared after it had taken place and merely showing that he had become outlaw after the offence is not sufficient. The word absconded' was further defined in the case of State of Mysore vs. Sanjeeva. Reported in A.I.R.1956 Mysore 1, and it was held as under:_ "The word 'absconder' is not defined in the Code of Criminal Procedure. It occurs in other provisions of criminal law e.g. Sections 87 and 90 (a), Cr.P.C, and Section 172 I.P.C. From the context and object of these provisions an absconder may be said to be one who I intentionally makes himself inaccessible to the processes of law. Hence it is not enough if it is shown that it was not possible to trace him soon after the occurrence."
5. This question was also considered by the Supreme Court of A.J.K, in the case of Qurban vs. The state, reported in N.L.R. 1980 SCJ 385, and it was observed that the proof as contemplated by section 512 Cr.P.C, is a condition precedent for holding that the accused is an absconder.
6. Rules 1 and 2 of Part F-I, Chapter VI of the Federal Capital and Sind Courts Criminal Circulars lay down the procedure for taking proceedings against absconders. Rule 2 is relevant and for the sake of convenience is reproduced in extenso:- "No proclamation can issue under section 87 unless a warrant has issued in the first instance and the Court has reason to believe that person against whom it was issued has absconded of is concealing himself so that such warrant cannot be executed. The proclamation must fix a date for the appearance of the person at a specified place and that date must be not less than thirty days from the date of the publication of the proclamation. The proclamation must be published in the manner specified in sub-section (2) of section 87, and the Court should be careful to record the statement as regards the due publication of the proclamation as required by sub-section (3) of that section. The Court has the discretion to issue an order for attachment of property simultaneously with the issue of a proclamation. Section 88 (as amended in 1923) now provides for the summary investigation of claims of objectors to the attachment by Magistrates. The decision of the Magistrate can be challenged by a civil suit within a year."
7. As indicated above there was no material on record to even faintly suggest that the applicant has absconded. The statement of the process-server made on oath makes it clear that the applicant had gone to perform Hajj and has not returned from there. The proclamation under section 87 Cr.P.C. was issued on 23.7.1990, but without waiting for the expiry of a period of 30 days as required by law and without recording the statement of any of the prosecution witnesses under section 512 Cr.P.C,' the learned Addl. Sessions Judge has ordered that the case be kept on dormant file. This procedure is unwarranted by law and any order passed on the basis thereof has got no legal sanctity.
8. Besides the above legal infirmity the applicant has placed on record the affidavits of Muhammad Hussain, Hamid and Murad Khan, who have testified that the applicant had all along remained in his village and he had not absconded at any time. There is nothing in rebuttal to disprove this fact. On the contrary, the learned A.A.G, has conceded by stating that the proclamation issued against the applicant under section 87 Cr.P.C, was not valid. In view of this position when there is nothing on record to show that the applicant had in fact absconded, he cannot be denied the concession of bail on the strength of the rule as laid down by the Supreme Court. It may also be added that in the case of Malik Mukhtar Ahmad Awan vs. The State, reported in 1991 S.C.M.R. 322, the Supreme Court has made it clear that there was no absolute rule that a fugitive should under no circumstances be enlarged on bail.
9. Coming on merits it must straightaway be conceded that the case against the applicant needs further inquiry within the meanings of sub-section (2) of section 497 Cr.P.C. The incident took place at 8-40 A.M. The concerned police was informed by the Medical Officer about the arrival of both Mst. Jamila and Mst. Anwari at 10-10 A.M., but still the 154 Cr.P.C, statement of complainant Muhammad Saleem was recorded at 4-45 P.M., why?, nobody knows. The name of the applicant does not find place in the F.I.R, and the persons who figure as witnesses in the F.I.R, have not implicated him. He was implicated for the first time on 4.3.1990, when the statements of Muhammad Siddique, Muhammad Mustaqeem, Abdul Rafiq and Zahid Ali were recorded under section 161 Cr.P.C, followed by their 164 Cr.P.C, statements recorded on 12.3.1990. There is no explanation worth consideration to satisfy this Court about this abnormal delay in recording their 161 Cr.P.C, statements. Rab Nawaz, Inspector, who is the I.O. In this case was in fact called in court to clarify this position but he too was of no assistance. He has simply stated that due to ethnic tension which was prevalent in the area during those days, Muhammad Saleem did not produce the witnesses although various approaches were made to him. It may be noted that in F.I.R, there was specific allegation that the firing was being made from the house of one Noor Muhammad Naik.
The prosecution, however, changed the entire case after about one month of the incident and involved a different set of accused persons with the help of the witnesses named above.
10 Having regard to the above factual and legal position, I am in agreement with the view taken by learned A A.G. That the case against the applicant needs further inquiry within the meaning of sub- section (2) of section 497 Cr.P.C. Accordingly bail is granted to applicant in the sum of Rs.100,000/- (Rs. One lac only) with P.R. Bond in the hie amount to the satisfaction of the trial Court.