' Applicant Muhammad Ramzan (hereinafter referred to as the complainant/applicant) has moved an application under section 497(5), Cr.P.C. To seek cancellation of bail granted to an accused Taj Muhammad.
2. Facts leading the application are that the complainant had lodged an F.I.R. No,30/93 at Police Station Saddar, Jacobabad on 9-5-1993 registered under section 302, Qisas and Diyat Ordinance read with section 449/34, P.P.C. And 13-D, Arms Ordinance against (i) Dur Muhammad, (ii) Taj Muhammad, (iii) Yar Muhammad, (iv) Saleh Muhammad, (v) Doda Khan and (vi) Muhammad Sadiq. The charge-sheet in this case was .Submitted on 4-7-1993. Accused Saleh Muhammad and Muhammad Sadiq were put in column No,2 of the charge-sheet; Dur Muhammad, Taj Muhammad and Yar Muhammad were shown as absconders while Doda Khan was the only one who was shown arrested at the time of submission of the said charge-sheet. The present respondent/accused namely Taj Muhammad (hereinafter referred to as respondent Taj Muhammad ) was arrested on 12-11-1994 i,e, after about six months of the date of incident. The allegations against all the accused persons, as unfolded by the F.I.R., are that they had entered the complainant's house armed with guns/fire-arms. They wanted to kill one Ahmad Khan on account of some matrimonial dispute. Absconding accused Yar Muhammad is alleged to have fired two shots from T.T. Pistol at Ahmad Khan which hit at his head. He fell down and died at the spot due to fire-arm injuries sustained ,by him. The complainant party could not come forward to save his life due to fear.
3. After submission of the charge-sheet arrested accused Doda Khan was granted bail on 28-7- 1993, respondent Taj Muhammad moved his bail application after his arrest on 8-12-1994. The learned Sessions Judge, Jacobabad also granted him bail on 20-12-1994 on the principle of consistency by treating the case of respondent Taj Muhammad to be identical to the case of accused Doda Khan. Shocked by that order the complainant moved the present application under section 497(5), Cr.P.C. For cancellation of bail granted to respondent Taj Muhammad only on the ground that respondent Taj Muhammad was an absconder and, therefore, his case could not be treated similar to the case of arrested accused Doda Khan for the purpose of granting him bail.
Other grounds such as mention of the accused in the F.I.R. Or common intention attracted by section 34, P.P.C. Were luke-warmly argued, rather not pressed. Hence the only question before this Court is whether bail granted by the Sessions Judge in murder case to an absconding can be cancelled by the High Court on the point of abscondence. As large number of applications for cancellation of bail are moved before the High Court by now and then, hence, I consider it necessary to deal this issue to some extent in detail.
4. Granting of bail in a non-bailable offence to an accused by any Court is a concession. An application under section 497(5), Cr.P.C. Moved before the same Court or before any higher forum cannot be treated an appeal to go through it from every angle. However, the higher forum can exercise its revisional jurisdiction to cancel bail granted to any person by any subordinate Court after notice to the person concerned provided the said forum comes to a conclusion on the face of the record of the subordinate Court that there was sufficient material not to justify the Court to grant that bail. But, at the same time, it may not be out of place to mention that an impression has deepened its roots for the last so many years that granting of bail is a discretion of the Court, therefore, the higher forum should refuse to interfere with that discretion. This impression is totally unfounded because the discretion to be exercised by a judicial mind must possess characteristics of judicial discretion and it must not be equated with the discretion which is usually exercised by the dictators, Martial Law Authorities during their regimes (not Governments) or by any other non- judicial mind. If any subordinate Court fails to exercise its judicial discretion properly and grants bail to any person to whom it should not have been granted on the face of the record or in violation of the principles laid down by the Superior Courts then the higher forum would not hesitate to cancel that bail granted to an accused by the said subordinate Courts.
The Superior Courts have laid down several guiding principles for the subordinate Courts to cancel bail granted to an accused if--
(i) bail was granted by a Court having no jurisdiction to grant it;
(ii) the accused on bail, commits the same offence for which he is being tried or has been convicted;
(iii) the accused on bail hampers the investigations;
(iv) the accused on bail tampers with the evidence;
(v) the accused absconds after grant of ail;
(vi) the accused got bail on the basis of false averments regarding his age or illness etc.
(vii) the accused was implicated as the principal offender in several cases which badly affect the society at large such as in the cases of heroin smuggling;
(viii) granting of bail to an accused has become a foundation of revenge against the complainant party, prosecution or the witnesses;
(ix) bail order of the subordinate Court was devoid of reasoning while granting bail and facts of case were fully implicating the accused or attracting section 496(1), Cr.P.C.
' These are general propositions where even a trial Court having jurisdiction to entertain an application under section 497(5), Cr.P.C. May exercise its powers to cancel bail granted to an accused. And if the trial Court refuses to cancel that bail then the higher forum can be moved to exercise the same powers in its provisional jurisdiction.
6. So far as cancellation of bail on the ground of ascendance is concerned, I have no ambiguity in my mind that if an accused absconded after grant of bail or from custody after his arrest then granting him bail would not be proper. But ascendance cannot be valid grant to refuse bail or cancel bail in each and every case to an accused, before or after his arrest. I have discussed this point in a case reported as Muhammad Imran Ullah Khan v. The State reported in 1995 PCr.LJ 167. In the said case reference of several cases was given at the end of para. 8, but, inadvertently, those references were not correctly reported. These references contained the cases reported as (i)
Ibrahim v. Hayat Gul 1985 SCM R 382, (ii) Awal Gul v. Zawar Khan PLD 1985 SC 402, (iii) Muhammad Sadiq v. Sadiq PLD 1985 SC 182, (iv) Rais Khan v. Said Hand 1979 SCM R 90, (v) Rao Qadeer Khan v.
The State PLD 1981 SC 93; (vi) Kh. Azhar Hassan and other v. The State 1983 SCM R 978 and (vii)
Hayat Baksh and others v. The State PLD 1981 SC 265.
' It may be important to point out that Mr. Justice Muhammad Afzal Zullah (as he then was) was either the author of several judgments or the member of those benches of the Supreme Court who delivered these judgments except in the case of Rais Khan (supra) where the judgment was authored by Mr. Justice Muhammad Haleem (as he then was). The law on the principle of abscondence has been fully discussed in all these judgments and they provide unambiguous guidelines for the subordinate Courts where bail be granted to an absconder and in what circumstances the bail be refused to any such person. It is a matter of great concern that most of the subordinate Courts, while dealing with the cases of absconders and their application, usually rely upon the judgments of their own choice and prefer to keep their eyes closed regarding the principles laid down in other related judgments. This conduct leads to injustice only and, therefore, the same cannot be appreciated.
7. Mr. Abdul Sattar N. Attar the learned counsel for the applicant/ complainant, has also relied upon the case of Muhammad Imranullah Khan (supra, 1995 PCr.LJ 167) in support of his contention but the said case is totally distinguishable from the case of respondent Taj Muhammad firstly on the ground that the said case relates to grant of bail and not cancellation of bail and secondly the fact of the referred case were totally different from the facts of the case being faced by respondent Taj Muhammad. The bail in that reported case was refused to the accused on account of the reasons which are mentioned therein and read as follows:-- "He was already in custody of the police. His bail application had been rejected. He was re-arrested after about 7 months. The co-accused Raees, who absconded with hint, is still at large. The other two accused who were granted bail also absconded after their release. It is now settled law that noticeable abscondence of a person disentitles the person to concession of bail notwithstanding the merits of the case because a fugitive from law and Courts loses some of the normal rights granted by the procedural or substantive law."
' These were the reasons that bail was refused to the accused in that case but it is an admitted position that the case of respondent Taj Muhammad has no similarity with the case referred by the learned Advocate for the complainant.
' At this stage Mr. Ghulam Sarwar Korai, the learned counsel for respondent No,2 (the State) and Mr. Qutubuddin I Thahim, the learned counsel for respondent Taj Muhammad drew my attention to the propositions laid down in the same judgment and which read as under:-- " an absconding accused may not be refused bail in certain circumstances. For example if an accused remains astir in any case from the very first day of an incident and after his arrest he establishes that he had no knowledge about the case or he had knowledge but it was beyond his control to appear before the Court as he was under arrest in any other case or was out of country or was under preventive detention or there were other reasons on the basis of which he could not be considered absconder then such accused must not be refused bail due to the so-called ascendance. Similarly the principle of refusing bail to the absconder' may not be applied strictly in the case of all those persons who are mentioned in the first proviso of section 497(1), Cr.P.C. Even if the case of an accused is such that there are not reasonable grounds to believe that the accused has committed the non-bailable offence and there are sufficient grounds for further inquiry into his guilt, then in such case the principle of abscondence should not be applied strictly to refuse bail to an accused because bail becomes a right of an accused under section 497(2), Cr.P.C. In such circumstances."
8. If the case of respondent Taj Muhammad is tested on the anvil of these propositions then there appears no justification to cancel his bail grant by the learned Sessions Judge because:
(i) No overt act has been attributed against him to kill the deceased;
(ii) bail granted to the co-accused Doda Khan has neither been cancelled nor challenged and the case of respondent Taj Muhammad is undoubtedly on the same footing;
(iii) principle of consistency left no other alternative for the learned Sessions Judge but to provide him the concession of bail as a right;
(iv) even no allegations of tampering evidence, or false averments or any other ground as mentioned in para.3 above for cancellation of bail has been made the part of the application moved before this Court for the said purpose. Hence this application is liable to be rejected on this score alone.
9. In the light of this discussion and on the face of the facts on record feel that application moved under section 497(5), Cr.P.C. Against respondent Taj Muhammad for cancellation of his bail is intended merely to harass him and, therefore, I have no hesitation to hold that the learned Sessions Judge, Jacobabad was fully justified in exercising his discretion to grant bail to the respondent.
These were the reasons for dismissing the application for cancellation of bail on 6-3-1996 by my short order.