' The instant bail cancellation petition filed by the widow of deceased Amir Rehman against the order of Additional Sessions Judge Bannu, dated 15-11-1997 whereby Noor Nawaz alias Noor Niaz was allowed bail in Case F.I.R. No,234 registered on 23-3-1993 for committing an offence punishable under section 302/34, P.P.C. Of Police Station Saddar Bannu.
2. Facts in brief are that Rabnawaz complainant (now dead) has lodged the report regarding the murder of his son Amir Rehman, wherein.Aurangzeb, Jehanzet, brother interest and accused/respondent Noor Nawaz were charged for the said murder, as per contents of F.I.R.
Aurangzeb was attributed the role of command to the co-accused to kill deceased while Jahenzeb and Noor Nawaz were attributed the role of effective firing through pistols at the deceased. The motive behind the occurrence was disclosed that few days before the occurrence the accused had beaten the deceased.
3. All the accused nominated in the F.I.R. Absconded immediately after the occurrence and they were proceeded under section 87/204, Cr.P.C. A challan under section 512 was submitted on 28-5- 1993. Subsequently Aurangzeb accused was arrested on 3-4-1994 and he was put on trial. At the conclusion of trial he was granted acquittal by giving him the benefit of doubts in the prosecution case vide order, dated 23-2-1995 of the Additional Sessions Judge, Bannu in Sessions Case No,50 of 1994..
4. Jehanzeb accused is still absconder in the case while Noor Nawaz accused/respondent was arrested on 26-10-1997. On his arrest he applied for bail to the Court of Additional Sessions Judge, Bann, which was allowed to him vide impugned order referred to above.
5. The learned counsel for the widow of deceased contended that the accused/respondent is charged for effective firing at the deceased in broad daylight. There is ocular evidence supported by the medico-legal report and recoveries of two empties of .30 bore pistols from the spot. The conduct of accused/respondent who remained absconder for about 4 years and 7 months also corroborates the prosecution case. Also contended that the learned Additional Sessions Judge has given the benefit of judgment in the case of acquitted co-accused Aurangzeb and has ignored the unexplained prolong ascendance of the accused/respondent and has over looked the role attributed to the accused/respondent.
6. Malik Hamesh Gul, Advocate, learned counsel for the State supported the contentions of the learned counsel for the complainant party and argued that the accused/respondent made he available for the arrest after the acquittal of the co-accused Aurangzeb. The ascendance of accused/respondent has damaged the prosecution case.
7. The learned counsel for the accused/respondent contended that once a bail granted could not be lightly be interfered unless it is shown that the bail granting order is perverse or the accused has misused the concession of bail. Further submitted, that the prosecution evidence already disbelieved in the case of acquitted accused Aurangzeb could not be improved in the trial of the accused/respondent. Added that the motive has been attributed to the co-accused and there was no motive for the accused/respondent to commit the "murder of deceased Amir Rehman. Further submitted, that accused/respondent was a Junior Clerk in C&W Department and due to involvement in the present case he has already suffered a lot. Further submitted, that the case against accused/respondent is of further enquiry as there is a conflict between the medical evidence and the ocular evidence of ground that the inlet wounds 1.5 and 8 on the person of deceased were found with blackening marks while the accused were shown at a distance of two paces and the victim could not receive an injury with blackening marks from such a distance if fired through a pistol.
8. I have heard the learned counsel for the parties and have gone through the record.'
9. Admittedly, the accused/respondent and the absconding accused Jehanzeb are charged for effective firing at the deceased Amir Rehman through pistol. As per medical report the deceased had received a number of inlet wounds. During the spot inspection two empties of .30 bore pistol were also recovered from the place closed to the point where from the accused/respondent allegedly fired at the deceased. The accused/respondent remained absconder for about four years and seven months with no plausible explanation. The learned Additional Sessions Judge has considered the delay in lodging the F.I.R., the relationship of the eye-witness with the deceased, suspected the presence of Abdul Nawaz, an eye-witness on the ground that he did not accompany dead body to the Hospital, one of the injury was not caused through fire-arm and the blackening around some of the injuries on the person of deceased and non-recovery of weapons of crime from the accused/respondent.
10. The impugned bail granting order is perverse because it amounts to rejection of the prosecution case in the disposal of bail application which is not permissible in law. The Courts can make a tentative assessm ent of the available record to arrive at a conclusion that where reasonable grounds exist to believe that the accused petitioner has committed the alleged offence but deep appreciation of the prosecution case is not permissible under the law for disposal of "bail petition".
Since the learned Additional Sessions Judge has discussed the prosecution case in a great depth and has not considered the prima facie nature of the prosecution case, therefore, in my view, the impugned order is perverse and the accused/respondent is prima facie reasonably connected/involved in the commission of offence which is punishable for Qisas or Diyat amounting to transportation for life.
11. The accused/respondent in his bail petition before the lower Court has conceded that he though aware of the charge could not surrender due to fear and torture of police and other miseries likely to be faced by him. He has also alleged plea of alibi. Had he been falsely charged, he should have surrendered before the Investigating Officer and could produce official record of his attendance at the relevant time. This is also a fact that though a civil servant in C&W Department he opted of ascension at the cost of his service which is unusual for an innocent person. He made himself available only when Aurangzeb a co-accused was granted acquittal. In these circumstances, accused/respondent could. Not be granted the benefit of bail as bonus for his ascension. The prosecution has failed to effect the recovery of crime pistol due to ascendance of the accused/respondent immediately after the occurrence and it has been observed in Muhammad Sadiq v. Sadiq PLD 1985 SC 182 and Irshad and others v. The State 1996 PCr.LJ 719 that absconder loses some of normal rights granted by procedural and substantive law and noticeable ascendance disentitles the absconder to the concession of bail notwithstanding merits of the case.
12. In the present day society, it has been noticed that in a number of cases the culprits abscond after the occurrence and surrender in peace meal. An accused having been attributed a lesser role in the commission of offence always surrenders first and on getting acquittal, paves way for other co-accused having been assigned majored role, as happened in the present case. By adopting such techniques the culprits pressurize the victim's family to patch up the matter with them or persuade influence or threaten not to depose against them. Due to fear even the close relative feel hesitation in deposition in Courts against fugitive from law and fugitive from law always succeeds in getting benefit from his such conduct, resultantly, people never come forward in the help of those who are subjected to aggression and number of crimes are increasing day by day and people are losing confidence over Courts of justice. The tendency to avoid arrest is needed to be checked and fugitive from the law, who deliberately avoids to face the investigation should not be granted bail liberally.
13. There is another aspect of the present case, the bail petition was moved before the Additional Sessions Judge on original side without applying to the Magistrate for bail, although the Court of Sessions can only take cognizance under section 193 if the case is sent by the Magistrate.
14. these circumstances of the case, I set aside the impugned order, dated 15-11-1997 and the bail granted to him is recalled. The accused/respondent, present in Court, is taken into custody and be produced before the Trial Court on 1-4-1998.
15. The challah against the accused/respondent has already been prepared. The prosecution is directed to ensure the submission of challan to the Court of competent jurisdiction forthwith so that it should be available before Trial Court on 1-4-1998 and the Trial Court is directed to expeditiously dispose of the case against the accused/respondent within period of three months.
Order accordingly.
1999 13 Cr. L J 620 [Karachi] Before Rasheed A. Razvi, J THE STATE through Assistant Director (Legal)/Public Prosecutor of F.I.A., Hyderabad-Appellant versus LESLIE FREDRICKS---Respondent Criminal Acquittal Appeal No,199 and Miscellaneous Application No,747 of 1995, decided on 28th September, 1998.
Penal Code (XLV of 1860)--- ----Ss. 409 & 471-Prevention of Corruption Act (II of 1947), S.5(2)---Limitation Act (IX of 1908), Art.157---Pakistan Criminal Law Amendment Act (XL of 1958), S.10(2)---Appeal against, acquittal-- -Trial Court having been established under the Pakistan Criminal Law (Amendment) Act, 1958, appeal against acquittal of accused was to be treated as an appeal filed under S.10(2) of the said Act---No period having been specified for filing an appeal against an order of acquittal in the Act, reasonable time for filing such appeal must have been within six months as provided by Art.157 of the Limitation Act, 1908--- Delay of ten months and five days in filing the appeal had not been explained by the prosecution-- -Conduct of the appellant (prosecution) even after filing of appeal was very much deplorable as they had taken more than three years to argue the appeal at the Katcha Peshi stage---Even otherwise, F.I.A. Had no powers to file an appeal against acquittal of acctised and the appeal filed by an Assistant Director (Legal), F.I.A. Under the instruction of Director, F.I.A. Was not competent and was liable to be dismissed on this ground as well---Appeal was dismissed in limine accordingly.
[p. 624] A, B, C, D & E Ashiq Muhammad and another v. Khuda Bakhsh and 5 others PLD 1998 Pesh.
68; The State v. Shoukat Ali 1998 PCr.LJ 1503; The State v. Raja Khan PLD 1964 (W.P.) Lah. 253; Des Raj v. The Emperor AIR 1934 Lah. 264; The State v. Dr. Abdul Fateh 1968 PCr.LJ 874; State v. Zahid Hussain 1990 SCMR 164 and State v. Muhammad Akram PLD 1985 FSC 416 ref. Ch. Muhammad Yousuf, Inspector (Legal.), F.I.A. For the State. Respondent in person. ORDER ' This is a criminal acquittal appeal filed under section 417, Cr.P.C. Read with section 10(2) of the Pakistan Criminal Law (Amendment) Act, 1958 against the judgment, dated 20-12-1994 passed by the Special Judge (Central), Hyderabad acquitting the respondent from the charge under section 409/471, P.P.C. Read with section 5(2) of the Prevention of Corruption Act, 1947 arising out of Crime No,43 of 1977, F . I . A. Hyderabad. The respondent/accused was acquitted through the impugned judgment against which the instant criminal acquittal appeal has been filed. In fact, this appeal is to be treated as an appeal filed under section 10(2) of the Pakistan Criminal Law Amendment Act, 1958, (hereinafter referred as to the Act, 1958), since the general provisions of section 417, Cr.P.C. Are excluded. It was held in the case of Ashiq Muhammad and another v. Khuda Bakhsh and 5 others PLD 1998 Pesh. 68 that appeal, revision and transfer of cases are governed by section 10 of the Act, 1958. For convenience sake, section 10(2) of the Act, 1958 is reproduced as follows:- "10(1) ......................................................................................
(2) Notwithstanding the provisions of section 417 of the Code of Criminal Procedure V of 1898 in a case tried by a Special Judge appointed by Central Government under section 3 in which such Special Judge has passed an order of acquittal the Central Government may direct the Public Prosecutor to present an appeal to such Court as aforesaid.
(3) .
(4) .
2. Office of this Court raised a preliminary objection to the maintainability of this criminal acquittal appeal on the ground of delay. Admittedly order of acquittal was passed by the Special Judge (Central), Hyderabad on 20-12-1994 and the instant appeal was filed on 28-11-1995 after lapse of more than eleven months. Appellant had applied for certified copy of judgment on 20-12-1994; cost was paid on the same day, copy was made ready on 23-1-1995 and was delivered on the same day. Therefore, the appellant is entitled for exclusion of this period which comes to about one month and three days. Instant appeal was filed after a delay of eleven months eight days and if the period of one month and three days are excluded, the appellant is still required to explain the delay caused in filing this criminal acquittal appeal after a lapse of nearly ten months and five days. It is regretted to note that this appeal is pending at the stage of Katcha Peshi for nearly three years but the appellant is not in position either to argue this appeal or to engage a lawyer. He was asked to explain his status and authority to file this appeal, to which he replied that he was instructed by the Director (F.I.A.), Karachi to file appeal against the order of acquittal. On 15-7-1998 following order was passed by this Court:-- .. Inspector F.I.A. Named above has moved an application for adjournment on the ground that appointment of an Advocate has been requested but so far the Federal Government has not appointed any law officer to conduct this matter as such adjournment is sought.
' 'This criminal acquittal appeal was filed on 28-11-1995 and still it is pending for Katcha Peshi hearing as time and again adjournments have been sought by the appellant. Let the copy of this order be forwarded to the Director-General, F.I.A., Islamabad as well as to Secretary, Ministry of Law, Justice and Human Rights at Islamabad.
' Notice of this appeal may also be sent to Deputy Attorney-General-I, Government of Pakistan at Karachi. In view of the adjournment application, this case is adjourned to a date in office."
3. On the last date of hearing, notice was directly issued to the Director F.I.A., Crime Circle, Karachi, under whose instructions this criminal acquittal appeal was filed, to come and argue this acquittal appeal, but nobody has come forward either from the office of F.I.A. Nor the Federal Government has engaged any law officer to look after their cases at Hyderabad Circuit Bench of the Sindh High Court. In such circumstances, I have proceeded to examine the case. The point which I intend to deal first is about the authority of the appellant. This question was recently considered by a Division Bench of this Court in The State v. Shoukat Ali 1998 PCr.LJ 1503 where, after reference to section 4-A of the Central Law Officers Ordinance (VII of 1970), it was held, inter alia, as follows:-- "By virtue of insertion of new section 4-A in the Central Law Officers Ordinance, 1970, Additional Attorneys-General, Deputy Attorneys- ' General and Standing Counsel have been notified to be Public Prosecutors who have been authorized to institute, file and conduct any proceedings including appeal, revision for and on behalf of Federal Government before any Court or Tribunal including a Special Court constituted under any law. In the instant case, Syed Tariq Ali has rightly conceded that memo. Of this appeal has not been filed by any of the Law Officers notified in the above said Act No,XVII of 1985. On perusal of the memo. Of this appeal, it would appear that same is not signed by any one of mentioned' Law Officers for or on behalf of appellant/Federal Government but has been signed by someone as State' through Public Prosecutor F.I.A. Karachi Zone, Karachi, but no notification has been filed that the person who has filed and signed appeal was Law Officer within the meaning of newly-inserted section 4-A of Central Law Officers Ordinance VII of 1970. As this appeal has not been filed and signed by any of the Law Officers authorized under the law, therefore, the appeal cannot be said to have been legally filed hence the appeal is held to be not maintainable in law.
The plea raised is answered in the affirmative holding that the appeal is not maintainable in law. ....
"
4. I am also conscious of the rule -laid down by a Division Bench of Earstwhile High Court of West Pakistan in the case of The State v. Raja Khan PLD 1964 (W.P.) Lah. 253, where it was held, inter alia, while following the rule laid down in the case Des Raj v. The Emperor AIR 1934 Lah. 264 that there is no period fixed for filing a revision against an order of acquittal. It was further held that the interests of justice demand that it should be filed within a reasonable time which will of course depend on the circumstances of each case. In another case The State v. Dr. Abdul Fateh 1968 PCr.LJ 874, it was held by a learned Single Judge of this Court that under section 10 of the Pakistan Criminal Law (Amendment) Act, 1958 no period has been fixed for an appeal or a revision. This leads me to examine Article 157 to the first schedule of the Limitation Act, 1908 which reads as follows:-- 157.-- Under the Code of six months. The date of the order Criminal Procedure, 1898 appealed from."
(V of 1898) from an order of acquittal.
' Indeed there is no period prescribed for filing a criminal acquittal appeal against the order of acquittal passed by a Special Judge constituted under the Criminal Law (Amendment) Act, 1958.
Under Article 157, of the Limitation Act the State is permitted to file appeal within six months. In the case of Shoukat Ali (supra) the period of limitation for filing appeal against the order of acquittal was taken to be six months as provided in Article 157. In the case State v. Zahid Hussain 1990 SCMR 164 the question before the Shariat Appellate Bench of the Supreme Court of Pakistan was whether in an appeal against acquittal filed against the order of Federal Shariat Court it is Rule 18 of the Federal Shariat Court (Procedure) Rules, 1981 which is attracted or whether it will be controlled by section 417 of the Code of Criminal Procedure read with Article 157 of the Limitation Act. Reference was made to the case State v. Muhammad Akram PLD 1985 FSC 416 where after it was held, inter alia, as follows:-- "9. These provisions of the Limitation Act make it clear that where a Special Law or a local law provides a period of limitation different from that of the-Limitation Act then the period so prescribed prevails over that of the Limitation Act. In case of conflict on the express words, the Limitation Act yields. If there is any inconsistency, as there appears to be, then the Rules framed by the Federal Shariat Court will prevail provided they are found to be intra vires."
5. Article 157 of the Limitation Act provides period of six months for filing an appeal under the Code of Criminal Procedure, 1898 from an order of acquittal within six months. In the instant case, the Trial Court was established by the Criminal Law (Amendment) Act, 1958 and, therefore, for all legal intent and purposes this appeal against acquittal is to be treated an appeal filed under section 10(2) of the Act, 1958. No period has been specified for filing an appeal against order of acquittal.
Therefore, in my considered view the reasonable time within which such appeal against an order of acquittal is to be filed must be within six months as provided under Article 157 of the Limitation Act.
In delay, as of the instant case which is spread over a period of ten months and five days, the appellant is required to make some plausible and convincing explanation for not filing of this appeal within a reasonable time. Even after filing of this appeal, the conduct of the appellant is very much deplorable in that they have taken more than three years to argue this appeal at the stage of Katcha Peshi.
6. Before parting with this order, I would like to observe that in the entire scheme of the Federal Investigation Agency Act, 1974, nowhere it is provided that the officers of the Agency are competent and authorized to file any appeal. Instant appeal has been filed by an Assistant Director, Legal, F.I.A.
And as reported, under the instructions of a Director, F.I.A. This Act was promulgated to constitute F.I.A. For the purpose of investigation of certain offences as mentioned in the Schedule of the Act, 1974 and committed in connection with matters concerning the Federal Government. The powers of the members of F.I.A. Have been defined in section 5 of the F.I.A. Act, 1974, which mainly deals with the arrest, seizure, inquiry, investigation and temporary attachment of properties, etc. Etc. No role is assigned to the F.I.A. In so far as conducting a trial or filing of an appeal is concerned. This appeal is liable to be dismissed in limited on this ground as well.
7. As a result of above discussion, I am of the view that since this appeal has been filed after substantial delay and in view of the conduct of the appellants ' That they are not serious in prosecuting the same, I uphold the office objection and dismiss this appeal on the grounds discussed hereinabove.