Applicant Abdul Latif alias Kitto is facing trial in a case arising out of an F.I.R. No.330/92 registered at Police Station Aziz Bhatti lodged by complainant Gul Hassan on 1-1-1992 under section 324, Qisas and Diyat Ordinance read with section 34, P.P.C. As the injured namely, Hassan A.I succumbed to his injuries on 20-3-1993 (i.e. After about four months and ten days of the incident), hence charge was amended by inserting section 302, Qisas and Diyat Ordinance into it. s
2. Complainant Gul Hassan, who is brother of deceased Hassan A.I, had narrated in the F.I.R. That his deceased brother and he himself were sitting on a Pan-shop when Muhammad Hanif and three other persons, known by their faces but not by names, reached there and objected on raising construction by the complainant. It was further alleged in the F.I.R. That Muhammad Hanif took out a pistol and started firing upon the complainant and his brother. The complainant was saved but one bullet struck his brother Hassan A.I on the right side of his neck. Other accused started firing in the air so none dared to come near to them and all the four accused ran away after firing.
Investigation was completed and four accused namely, Abdul Latif (present applicant), Pervaiz (already granted bail), Arif and Muhammad Hanif were canllaned. In the charge-sheet, Muhammad Hanif had been shown in custody while the remaining three as absconders.
3. Accused Pervaiz and present applicant were arrested on 5-4-1994 and on 16-4-1994 respectively. Pervaiz was granted bail by Incharge Sessions Judge (Mrs. Qaiser Iqbal), Karachi
(East) on 9-6-1994 by taking into consideration several points including the following:
(i) His name was not mentioned in the F.I.R. Besides this reality that the complainant or the deceased had never disclosed his name as an accused.
(ii) No description of the accused was mentioned either in the F.I.R. Or in the statement of any witness.
(iii) The injured died in Jinnah Hospital on 20-3-1993, thus he was no more in this world to implicate the accused.
(iv) No incriminating weapon used in the commission of the offence was recovered from possession of the accused after his arrest, and
(v) Even after his arrest, he had not been put to identification parade through the prosecution witnesses.
Regarding abscondence of the accused, the learned Incharge Sessions Judge had observed that: "The material available on the record against the applicant is absconcion, which is not coupled with any incriminating evidence."
Note.---I could not find out the word "absconcion" in any dictionary.
These were the reasons due to which the learned Judge granted bail to accused Pervaiz.
4. Bail application for present applicant was moved before the trial Court where it was urged by the learned Advocate that as the case of applicant Abdul Latif was on the same footing, as that of Pervaiz, therefore, he was also entitled to be released on bail on the principle of consistency. An additional ground was also put before the trial Court that as per F.I.R., all the three unnamed accused had fired in the air and no specific role had been attributed to the present applicant which could attract any of the sections mentioned in the F.I.R. But the learned VIth Additional District and Sessions Judge (Mr. Sirajuddin Quraishi) Karachi (East) dismissed his bail application on 27th day of October, 1994, hence present bail application was preferred before this Court.
5. The learned Advocate for the applicant, contended, rather complained, that the conduct of the trial Court could not be appreciated, from any angle whatsoever, because such conduct was a dangerous blow to the "principles of consistency in the field of justice". It was urged by the learned Advocate, that the order of trial Court had nothing in it to distinguish the case of the present applicant with the case of Pervaiz who was at liberty on account of bail granted by the Incharge Sessions Judge. This stand of the learned Advocate forced me to find out the actual facts because, apparently, there was no difference between the case of the present applicant, who was refused bail, and the case of co-accused Pervaiz, who had been enlarged on bail. Although, the learned A.D.J. Had tried to justify his order, dated 27th day of October, 1994 yet there was nothing in it to show any difference between the cases of the two accused.
6. If, any subordinate Court passes any Judicial order or gives Judicial findings with certain Judicial observations, then neither the Advocates nor the Superior Courts are justified to criticize such conduct of the Courts. Even if the Superior Courts reach any definite conclusion contrary to the conclusion reached by the subordinate Court, it may not be appreciable to condemn such Court in any manner whatsoever.
However, if the Superior Courts realize that any order or finding of a subordinate Court becomes a foundation of dangerous precedent, then ignoring such conduct would not be in the interest of judiciary.
7. The learned A.D.J. Had tried to justify his order by saying that: "While arguing the bail application of co-accused Pervaiz, the learned A.P.P. Did not press the ground of abscondence before the learned Incharge Sessions Judge, while in the case of present accused, the learned A.P.P. Pressed the ground of abscondence-------hence the rule of consistency would not apply to the case of present accused."
This plea does not seem to be correct. No matter, whether the A.P.P. In the case of co-accused Pervaiz had pressed the ground of abscondence or not, the learned Incharge Sessions Judge had taken this aspect into consideration in her order by saying that "the material available on the record against the applicant is abscondence, which is not coupled with any incrimination evidence". It clearly shows that the aspect of abscondence of accused Pervaiz was before the learned Incharge Sessions Judge at the time of passing order, notwithstanding to the fact, that the same was put forward by the A.P.P. Or the learned Judge took the same into consideration of his own.
Even otherwise, the learned A.D.J. Was duty-bound to pass orders according to the material available before him and not in accordance to the stand of any A.P.P. Hence, such conduct of the learned A.D.J. Does not seem to be appreciable.
The learned A.DJ. Also refereed the case of Uris v. The State reported in 1986 PCr.LJ 1449 and reproduced one paragraph from page 1453. But the learned A.D.J. Had removed the following last three lines of the said paragraph (Headnote G): "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."'
So far as the case of present applicant was concerned, it is an admitted position that he did not say anywhere that he was hiding. It was only the presumption of the learned A.D.J. That the applicant was treated to be fugitive from law because he was the real brother of main accused.
But this fact cannot be ignored that the complainant named his brother in the F.I.R:-which shows that he knew the accused family but, in spite of the reality, he did not mention the name of the applicant. If there are two possible presumptions then the presumption which favours the accused must be followed by the Court even at the stage of bail.
The learned A.D.J. Also referred the case of Muhammad Azim v. The State PLD 1988 SC 84 and expressed his view that he was not bound to take the same view as was taken by another Judge.
Perhaps the learned A.D.J. Had not paid any attention to the following words in the same paragraph quoted by himself:--- "The mere fact that a person who has been allowed bail in the same case (who in our view should not have been allowed bail) does not justify grant of bail to a person who is otherwise not entitled to it."
The stand of the learned A.D.J. Could have been most appreciable if granting bail to Pervaiz was without merits or he should not have been allowed bail in the light of the circumstances. In absence of such findings, the conduct of the learned A.DJ. Is neither appreciable nor ignorable because such discretion, as exercised by the learned A.D.J., cannot be treated as judicial discretion and if the same is given legal cover by this Court too, then it may become the most dangerous precedent to shatter the foundation of judiciary and justice. It is necessary that the subordinate Courts should keep in view, at the time of passing any order, the observations made by their Lordships in the case of Khalil-uz-Zaman v. Supreme Appellate Court, Lahore reported in PLD 1994 SC 885.
8. In the light of what has been discussed above, I am of the view that the learned A.D.J. Was not justified at all to ignore the order of granting bail to co-accused Pervaiz at the time of dismissing the bail application of present applicant whose case was totally on similar footing and especially when the learned A.D.J. Did not point out anything distinguishable on account of which it could be presumed that Pervaiz was granted bail wrongly because certain facts were kept hidden from that Court.
9. These were the circumstances that the learned AA: G. Also conceded to the grant of bail to the present applicant after going through the record of the, case and the two orders passed by learned A.D.Js.
Above are the reasons for short order passed on 11-12-1994 to grant bail to the appellant.
The amount of surety, according to my view, must not be less than the amount of Diyat but, in the present case, evidence of complainant (brother of the deceased) and P.W. Nadeem Akhtar has been recorded by the trial Court and both of them have not supported the prosecution case against the present applicant. Due to this reason considered it proper that the applicant be released on bail on furnishing surety in the sum of Rs.1,00,000 (Rupees one lac only) and P.R. Bond in the like amount to the satisfaction of the trial Court.