1. ' By this order, we intend to decide; whether pending adjudication of Criminal Acquittal Appeal, the accused-respondent Abdul Ali, should remain committed in prison, or he is entitled to be admitted to bail, in accordance with the provisions of section 427, Cr.P.C.?
2. ' Briefly, the facts of case are that F.I.R. No,61 of 1994, dated 7th May, 1994, registered at Police Station Chaman, respondent Abdul Ali, along with accused Gul Baran, Abdul Zahir and Allah Dad as well as others were to be responsible for causing murder of Dawood Shah and Muhammad Raza and injuring Muhammad Shah, Haji Bismillah and Obedullah. Statedly, besides respondent and other accused Gul Baran, Abdul Zahir, Allah Dad were arrested and on completion of investigation, they were tried by the Additional Sessions Judge, Pishin and ultimately accused Gul Baran and Abdul Zahir were found guilty of the charge of murder and causing injuries, while accused Allah Dad was acquitted of the charge, vide judgment, dated 22nd June, 1996. Convicts challenged their conviction by filing Criminal Appeal No,131 of 1996, whereas complainant Haji Bismillah, filed Criminal Revision No,38 of 1996, for enhancement of their sentences. He also filed Criminal Acquittal Appeal No,161 of 1996, praying for conversion of acquittal of accused Allah Dad into conviction. All the three matters were heard and vide judgment, dated 24th April, 1997, they were dismissed, upholding the judgment of trial Court and now presently the matters are pending before Honourable Supreme Court, in Criminal Petitions for Leave to Appeals Nos.19-Q, 25-Q and 26-Q, of 1997.
3. ' As far as respondent Abdul Ali is concerned, he was declared absconder, by the trial Court, vide order, dated 16th April, 1995. However, he was arrested on 8th July, 1997 from Qila Saifullah by Crimes Branch and was shifted from there to District Pishin, for trial. Accordingly after trial vide impugned judgment the respondent was not found guilty for the commission of offence as such he was acquitted of the charge on 19th October, 1998.
4. ' Complainant Haji BisMillah while filing appeal submitted instant application under section 561-A, Cr.P.C. Seeking directions to the Superintendent, District Jail, Quetta not to release the accused till decision of appeal. The appeal was admitted inter alia to examine the following considerations:-- "(i) That vide judgment, dated 26th June, 1996 on the same set of evidence accused Abdul Zahir son of Muhammad Khan and Gul Baran son of Khan Muhammad were convicted/sentenced under section 302/324, P.P.C. By the Additional Sessions Judge, Pishin. The judgment assailed by them before this Court in Appeal No,131 of 1996 was confirmed/ maintained vide judgment, dated 24-4- 1997. Now the matter is pending before Honorable Supreme Court who has been pleased to grant leave to appeal to reappraise the entire evidence and consider the question involved in the case for safe administration of justice, in a criminal case, but despite of that respondent has been acquitted of the charge.
(ii) In connection with the case referred to hereinabove original file is presently lying with honourable Supreme Court but learned trial Court without calling for original record tried the case against the respondent Haji Abdul Wali and acquitted his illegally and contrary to the evidence which was available on record.
(iii) The trial Court has not taken into consideration the strong incriminating evidence produced by the prosecution while passing the impugned judgment.
(iv) The impugned judgment also suffers from material illegalities, irregularities and deserves interference by this Court in exercise of jurisdiction under section 417(2-A), Cr.P.C. Read with the principle laid down by honourable Supreme Court in PLD 1985 SC 11.
5. ' On the application directions were made that for the time being respondent be not released and notice of the same was ordered to be issued to him.
6. ' Malik Sikandar Khan learned Advocate-General appeared for the State whereas Messrs Azizullah Memon, K.N. Kohli and Nasrullah Khan Achakzai, Advocates represented the complainant. The respondent Abdul Ali was defended by Mr. Ehsan-ul-Haq, Advocate.
7. ' On behalf of the State as well as the complainant it has been contended that respondent absconded immediately after the commission of offence in the year 1994 and has been arrested after a great deal of difficulties on 8th July, 1997 from District Qilla Saifullah, therefore, if pending decision of appeal, he is released from custody, there is very likelihood that once again he will make his escape good. Learned Advocate-General was also of the opinion that even if the respondent is released on bail, it would not serve the purpose, because he being an Afghan National, will migrate to Afghanistan. It was further contended on behalf of the State as well as complainant that there is a strong prima facie case, against the appellant, as he has been nominated in the F.I.R., wherein an overt act of firing with Kalashnikov on deceased as well as injured, has been attributed and two injured namely Haji Bismillah and Muhammad Shah as well as one eyewitness Akhtar Jan, have furnished direct incriminating evidence, involving the respondent in the commission of offence. It was further stated that co-accused Gul Baran and Abdul Zahir, have already been convicted on the same set of evidence, therefore, in view of the points, which have been raised for converting the acquittal into conviction, there is every likelihood that the respondent will be convicted. As such, in view of the principles laid down in 1971 SCM R 108 and 1980 SCMR 420, directions be issued, not to release the respondent from custody pending decision of appeal.
8. ' Mr. Ehsanulhaque, learned counsel for accused-respondent, contended that as far as the jurisdiction of this Court, to detain an acquitted person till decision of an acquittal appeal is concerned, there is no cavil with it; but such jurisdiction is to be exercised purely on judicial consideration. Learned counsel stated that in the application, though it is alleged that the respondent is a highly influential person and he has already committed thirty murders and also involved in Narcotic trade, yet to prima facie establish these facts, no documents or material has been placed on record. He further, stated that this Court under section 427, Cr.P.C. Can make directions to detain an acquitted person into custody, till pending decision of appeal, only in those cases, where a person is brought before the Court, but in the instant case, neither the respondent was arrested nor otherwise, has been brought before the Court, as he was not released after passing of impugned order, because he was wanted in another case, registered against him, at the time of his arrest, at Qilla Saifullah. Therefore, keeping in view this fact as well the discretionary jurisdiction may not be exercised in favor of prosecution, directing thereby, not to release the respondent till decision of appeal. It was also argued by the learned counsel that except one allegation, regarding ascension, there is no other reason, warranting his detention in custody.
9. According to him as far as ascension is concerned, it is always compatible with the innocence of accused. Therefore, for such sole reason, the respondent cannot be allowed to continue in custody, till disposal of appeal. In support of his argument, learned counsel, placed reliance on PLD 1962 SC 495.
10. ' We have heard the learned counsel for parties and have also gone through the F.I.R., evidence of P.Ws. Haji Bismillah Muhammad Shah and Akhtar Jan.
11. It is an admitted fact that in the F.I.R., not only the respondent has been nominated, but an overt act has also been assigned to him, for committing the crime. There is also no dispute, that respondent could not be arrested and he remained absconder till 8th July, 1997, when he was arrested at Qilla Saifullah, after a period of about three years from the date of incident. Although in view of the evidence, whatsoever produced by prosecution, the respondent has earned double presumption of innocence, in his fa3our, but the impugned order, dated 19th October, 1998, has also been found examinable, inter alia, for the considerations, reproduced hereinabove. The satisfaction of the Court in admitting the appeal, on the grounds, amongst others, noted in the admission order, itself is sufficient to hold at this stage, that respondent, prima facie, is responsible for the commission of offence, along with other co-accused out of whom, Gul Baran and Abdul Zahir, have already been convicted and their matters are pending before Honorable Supreme Court. ##TSE# In this context, reference to the statement of Haji Bismillah, Muhammad Shah and Akhtar Jan, is also very important, to prima facie adjudge; whether the respondent ultimately can be held liable for the commission of offence? These aspects of the case have been examined, notwithstanding the plea of appellant in the application namely, that respondent is an influential person, he has committed thirty murders and is involved in drug trafficking, because to prove these facts, no material is available on record. But at the same time, learned counsel has not denied that respondent was not declared as proclaimed offender, by the trial Court vide order, dated 16th April, 1995.
12. ' As regards the contention of learned counsel that at time, ascension is also compatible with the innocence, there is no cavil with this proposition but in the instant case, ascension of the accused is not to be considered independently and has to be examined in view of the evidence available on record, particularly of injured P.Ws. Bismillah and Muhammad Shah, as well as the eye-witness Akhtar Jan, coupled with the fact that on this very set of evidence, two co-accused persons namely; Gul Baran and Abdul Zahir have already been found guilty for the commission of offence and their appeal was dismissed by this Court on 24th April, 1997 and now the matter is pending for adjudication before the Honorable Supreme Court.
13. ' We are not inclined to agree with Mr. Ehsanulhaque learned counsel for respondent, that to exercise jurisdiction under section 427, Cr.P.C. It is necessary that the acquitted accused must be arrested and brought before the Court because when the appeal was filed, he was already in custody. Therefore, it would be presumed that by process of law, which has been initiated by appellant, the respondent has been brought before the Court by instituting an acquittal appeal against him. In the case of Khalid Saigal v. The State PLD 1962 SC 495 relied upon by learned counsel for respondent, following parameters, have been noted by Honourable Supreme Court, from the case of Sheo Swarup v. King-Emperor L.R. 61 I.A. 398:
(a) The views of the trial Judge as to the credibility of the witnesses.
(b) The presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial.
(c) The right of the accused to the benefit of doubt, and
(d) The slowness of an Appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
14. ' Testing the case in hand, at the touchstone of above principles, we are of the opinion that in view of the admission order of appeal, prima facie the views of the trial Judge, as to the credibility of witnesses, are not correct. As far as the presumption of innocence of respondent is concerned, that too appears to be incorrect, in view of the direct evidence of two injured HO Bismillah and Muhammad Shah. Thus, we are of the opinion, that if both these elements, discussed hereinabove are kept in mind to exercise the jurisdiction judicially under section 427, Cr.P.C., there is very likelihood that the respondent would not be entitled for any benefit and keeping in view the peculiar circumstances of the case, noted above, there is very possibility that prosecution may succeed to prevail upon the Court, that the finding', of fact recorded by trial Court, deserve to be disturbed in exercise of jurisdiction under section 417(2-A), Cr.P.C.
15. ' There are cases in which the Court while exercising discretion had refused to grant bail to an acquitted accused, if he has been brought before the Court either after causing his arrest or through process of law, as it had happened in the instant case. In this behalf, first judgment is in the case of Badsha Khan v. The State 1971 SCM R 108. Relevant para. Therefrom is reproduced hereinbelow:-- "In canvassing the petition for bail, Mr. Khalid M. Ishaque contended that the view expressed by the High Court that the earlier order for issuing non-bailable warrants for the arrest of petitioner was a bar to the maintainability of the application for bail was incorrect and drew our attention to the order of acquittal which in his opinion was well-founded. We are unable to agree with the learned counsel. The occurrence took place at 9-30 p.m. And the matter was reported to the police at 9-45 p.m. In the report the petitioner was accused of having given the fatal knife blows to the deceased.
16. Out of the four eyewitnesses examined during trial the names of three are mentioned in the F.I.R.
17. None of these witnesses had any ostensible reason to falsely implicate the petitioner. In the light of these attending circumstances the order of acquittal was open to question and the High Court is - right in refusing bail to the petitioner during the pendency of appeal."
18. ' In the case of Said Mian and another v. Mian Said Baghdad and another 1980 SCMR 420, 'the Honourable Supreme Court has observed that "if this Court after granting leave to appeal against the order of acquittal and substitute it by an order of death or sentence of imprisonment, the power to order his detention or arrest, during pendency of appeal would only be an ancillary and incidental power to facilitate the making of ultimate order that can undisputedly be made".
19. Thus, for the foregoing reasons, we are inclined to hold that respondent Abdul Ali is not entitled for his release on bail. Therefore, he is directed to bell kept in prison, till decision of instant acquittal appeal.