' This appeal has been directed against the judgment of the Sharait Court, dated 29-11-1999, whereby the revision petition filed by the appellant, herein, seeking the cancellation of pre-arrest bail allowed to the accused-respondent was dismissed.
2. The brief facts giving rise to the present appeal are that an F.I.R. Was lodged at Police Station, Thothal, Mirpur, on 31-8-1998 by Alam Zaib, appellant herein, alleging that he was sitting in the video shop of Ali Zaib, his brother, alongwith Ansar Mahmood and Muhammad Hanif. At about 5.30 p.m. He got up to leave the shop and had hardly travelled 15 to 20 yards from the shop when a white suzuki car was fastly driven there from Thothal's side. He looked back and saw the accused persons, Zahid and Arshad Mahmood coming out of the car alongwith three others unknown persons. It is alleged that zahid and Arshad Mahmood, accused, were armed with deadly fire-arms and started firing shots at the shop. Thereafter, Zahid, accused, entered into the shop and fired at the chest of Ali Zaib, deceased, and Muhammad Hanif. Ali Zaib expired instantaneously. It is also alleged in the F.I.R. That these offences were committed at the instance of the accused- respondent, Haji Muhammad Ramzan, who alongwith Zahid had come to the house of the complainant and deceased in the evening of 30-8-1998 and threatened that they would not spare the life of his brother, Ali Zaib, deceased. It is further alleged in the F.I.R. That Ali Zaib deceased, also told the complainant-appellant that accused, Zahid and Haji Muhammad Ramzan accused- respondent,also visited his shop at 1-1/2 p.m. On the same date and threatened him that they would put his life to an end. On this report, a case under sections 302/324, 147/148, 149/452, 337-F and 427/109, Azad Penal Code was registered against the accused persons. The other accused, except the respondent, were arrested and he was declared absconder after taking necessary proceedings under section 87, Cr.P.C. After the completion of the trial, the accused were challaned in the District Criminal Court in the aforesaid offences, the accused-respondent was mentioned in the challan under section 169, Cr.P.C., on the ground that sufficient incriminating material was not available against him. However, the trial Court rejected the plea of the accused-respondent that there being no sufficient material against him, he might be discharged. It may be observed that the complete challan was filed in the trial Court on 21-12-1998 whereas the accused-.Respondent filed an application in the District Criminal Court three days earlier, i,e,, 18-12-1998, seeking pre- arrest bail on the ground that he was out of Mirpur Town due to his business affairs and when he came back four days prior to filing of the bail application, he came to know that a false case was registered against him. The District Criminal Court allowed the accused-respondent interim bail on 18-12-1998 and confirmed the same after various adjournments on 31-3-1999. The appellant filed a revision petition in the Shariat Court alleging that the accused-respondent was an absconder and, thus, the District Criminal Court was not legally justified to extend the concession of pre-arrest bail to him in view of the dictum of the superior Courts of Azad Jammu and Kashmir and Pakistan. The Shariat Court dismissed the revision petition and upheld the order of the District Criminal Court.
Consequently, an appeal was filed to this Court against the judgment of the Shariat Court which culminated in difference of opinion between the learned members of the Bench consisting of my brothers Mr. Justice Basharat Ahmad Shikh and Mr. Justice Muhammad Yunus Surakhvi: Mr. Justice Basharat Ahmad Shaikh was of the opinion that the order extending bail in favour of the accused- respondent was not sustainable in view of the dictum of the superior Courts of the State and Pakistan, whereas Mr. Justice Muhammad Yunus Surakhvi was of the view that bail was rightly granted to the accused-respondent. Consequently, the appeal has come up for hearing and disposal before me as is envisaged under the relevant provisions of the Azad Jammu and Kashmir Interim Constitution Act, 1974.
3. Ch. Muhammad Aram Khan, Advocate, the leaned counsel for the appellant, has contended that the District Criminal Court has committed an error in extending pre-arrest bail to the accused- respondent after he had been declared as absconder by the Court. He has stressed that the trial Court has totally ignored the factum of his absconsion, whereas even in the normal circumstances pre-arrest bail is granted in exceptional circumstances; a fugitive from the justice loses the right of bail to which he may be otherwise entitled in view of the incriminating material against him. The learned counsel has submitted that the Shariat Court has also committed an error by upholding the contention of the accused-respondent that in fact he was away from his home due to his business affairs and had come to know about the registration of the case against him four days prior to making of the bail application to the trial Court. The learned counsel has contended that it is not conceivable that the accused-respondent, who claims to have his business located in Mirpur city, was unaware of the registration of case against him for a period of three months and eighteen days and that during all this period, he has been out of Mirpur and was not in touch with his family or other relative residing in Mirpur Town. The learned counsel has argued that the fact that the accused-respondent was, declared as absconder after taking appropriate proceedings under section 87, Cr.P.C., leaves no doubt that the absence of the accused-respondent from the town was not an innocent one, as alleged by him, but it was a case of abscondence to avoid the arrest in the case registered against him. The learned counsel has cited various authorities in support of his contention that leaving aside the question of absconsion, the pre-arrest bail in a heinous crime like murder is an exception and can be allowed only if it is established that the arrest of an accused seeking bail is motivated by ulterior motives by falsely implicating him in the offence with which he was charged; the learned counsel for the appellant has further submitted that the Shariat Court was not justified in taking into consideration the merits of the case against the accused- respondent because the bail to the absconder is to be refused on the sole ground of his absconsion; a fugitive from justice loses the normal right of bail to which he may be otherwise entitled on merits, The learned counsel has further submitted that the Shariat Court was also not justified in taking into consideration the other fact, namely, that some of the accused persons have already been released on bail and, thus, the principle of 'equality' necessitates to allow the concession of bail to the accused-respondent. The learned counsel has submitted that the accusaed-respondent being fugitive from justice was not entitled to pre-arrest bail merely because in the estimation of the trial Court and the Sharait Court, his case falls within the ambit of 'further inquiry'. The learned counsel has submitted that the question of further inquiry is not relevant in case of pre-arrest bail, especially in case of an absconder. The learned counsel has submitted that the trial Court and the Shariat Court while passing the relevant orders in favour of the accused-respondent have disregarded the principle which has been laid down by this Court in a number of cases. The learned counsel has cited following authorities in support of his contentions:- ' In a case reported as Khushi Muhammad v. Muhammad Hanif (1980 SCM R 616), the pre-arrest bail was refused to the accused-petitioners on the ground that they were absconders and proceedings under sections 87 and 88 of the Cr.P.C. Were initiated against them. It was further observed that the mere fact that the absconding accused had appeared before the Magistrate at one stage was not a mitigating circumstances to justify pre-arrest bail to the accused persons who subsequently absconded.
' In a case reported as Khurshid Ahmad v. Muhammad Ilyas (1994 SCR 136), it was observed that the dictum laid down in Murad Khan v. Fazal-e-Subhan (PLD 1983 SC 82), which was followed by this Court in case entitled Basharat Khan v. Sher Muhammad Khan (Criminal Appeal No.7 of 1992), the pre-arrest bail should not be allowed as a matter of routine and exceptional circumstances must be shown to exist in favour of the accused indicating that his arrest was actuated by ulterior motives. It may be observed that in this case, there was no accusation of absconsion against the accused-respondents whose bail was sought to be cancelled.
' In a case reported as Muhammad Sadiq v. Sadiq (PLD 1985 SC 182), it was observed that the abscondence of an' accused person destroyed his right of bail, irrespective of the other merits of the case; a fugitive from justice loses the right of bail, until aryl unless he explains the period of his abscondence to the satisfaction of the Court. It may be observed that this was not a case of pre- arrest bail but despite that the order. Allowing bail to the accused persons by the Sessions Judge and confirmed by the High Court was set aside on the sole ground of their abscondence with the observation that they might move the Sessions Judge and if they explain their abscondence satisfactorily, appropriate order might be passed.
' In a case reported as Arif Majeed v. State (1986 PCr.LJ 2983), it was held that unexplained abscondence of an accused person disentitles him to the concession of bail notwithstanding the merits of the case. It may be observed that this was not a case of pre-arrest bail and, thus, it is not helpful to the case in hand.
' In a case reported as Murad Khan v. Fazal-e-Subhan (PLD 1983 SC 82), the question of pre-arrest bail has been discussed in the light of case law on the subject. It has been held that exceptional circumtances must exist for pre-arrest bail; it must be shown that the arrest of the accused was sought with ulterior motive to humiliate or to harass him or to cause injury to his reputation and liberty.
4. Ch. Muhammad Mushtaq, the learned Additional Advocate-General, appearing on behalf of the State, has supported the contentions of the learned counsel for the appellant and has submitted that the trial Court and the Shariat Court acted in violation of the dictum of this Court while allowing pre-arrest bail to the accused-respondent who was an asbsconder.
5. In reply, Ch. Muhammad Sharif Tariq, Advocate, the learned counsel for the accused-respondent, has controverted the arguments on behalf of the appellant. He has argued that in view of the nature of the allegations against the accused-respondent, the fact that the accused-respondent was not present at the time of occurrence and no overt act has been attributed to him; and the fact that some of the prosecution witnesses have filed affidavit showing that the accused- respondent did not threaten the life of the deceased, Ali Zaib, justify his release on bail. The learned counsel has argued that in fact the accused-respondent was not an absconder but he was out of the town in connection with his business affairs and when he came to know about the registration of the case against him, he sought bail from the trial Court, which was allowed to him. The learned counsel has also submitted that it is not an inflexible rule that an absconder should be refused bail, irrespective of the nature of the allegation levelled against him or for that matter the incriminating material brought on the record in support of such allegations. The learned counsel has also argued that the proceedings taken under section 87, Cr.P.C., by the trial Court for declaring the accused- respondent as an absconder suffered from legal infirmities because no proclamation has shown to have been affixed on the door of the house in which the accused-respondent was residing or at any other conspicuous place. According to the learned counsel of the respondent, the proceedings declaring the accused-respondent as an absconder are fake and cannot be made basis for holding that in fact the accused-respondent was an absconder. The learned counsel has supported the reasoning which weighed with the trial Court and the Shariat Court while extending bail to the accused-respondent. He has cited following authorities in support of his contentions:- ' In case reported as The State v. Malik Mukhtar Ahmad Awan (1991 SCM R 322), the facts were that the accused-respondent was admitted to pre-arrest bail by the High Court holding that there were no reasonable grounds to believe that he committed the offences with which he was charged. The petition for leave to appeal was dismissed by the Supreme Court observing that the rule that a fugitive from justice should not be allowed bail is not absolute and open to just exception.
' In a case reported as Muhammad Yunus v. Malik Muhammad Nawaz (1997 SCR 125), the dictum laid down in Murad Khan's case (PLD 1983 SC 82) was approved and it was held that pre-arrest bail in heinous crime, such as murder, can be allowed only if the arrest of the accused appears to have been sought for ulterior motives. However, in the circumstances of the case, it was held that the accused-respondent was rightly allowed bail because the pre-conditions of the anticipatory bail laid down in Murad Khan's case which was followed by this Court in a number of cases, stood satisfied in the case. It may be pointed out that there was no charge of abscondence of the accused-respondent in that case.
' In a case reported as Mir Murtaza Bhutto v. The State (1995 PCr.LJ 1416), the accused person was allowed pre-arrest bail in the circumstances of the case. However, this was not a case of pre-arrest bail and is not relevant to the facts of the case in hand. It was also observed that as the accused who was out of Pakistan when the case was registered, he could not be treated as an absconder.
Thus, bail was allowed to him. In case reported as Meeran Bux v. The State (PLD 1989 SC 347), the accused-person was allowed pre-arrest bail observing that the facts of the case showed that preconditions for pre-arrest bail laid down in Murad Khan's case, referred to above, stood satisfied.
It may be pointed out that Murad Khan's case has neither been overruled nor dissented from in this case; besides, there was no allegation against the accused-respondent that he was an absconder.
6. I have given due consideration to the matter. The survey of the case law cited by the learned counsel for the parties, referred to above, leaves no doubt that the bail before arrest in a case like one in hand is altogether a .Different matter from a case in which bail is sought after the arrest. It is evident from the survey of case law, especially the case reported as Murad Khan v. Fazal-e- Subhan (PLD 1983 SC 82) and an unreported case of this Court entitled Basharat Khan v. Sher Muhammad Khan (Criminal. Appeal No.7 of 1992), that bail before arrest in a heinous crime like murder is an exception and the same is allowed only if it is established to the satisfaction of the Court that the implication of an accused person in the case was motivated by ulterior-motives to injure his reputation or deprive him of his liberty. It may be observed that even in cases where the bail was sought after arrest, the same was refused on the sole ground of absconsion observing that the accused lost his right of bail to which he would have been otherwise entitled keeping in view the allegations made against him and the material in support of such allegations. Evidently, when the bail before arrest is sought in a murder case after absconsion, that is not to be dealt with as if it was a case of absconsion in which the accused was seeking bail after his arrest. It may be observed that it is evident from the survey of case law cited by the learned counsel for the parties, 'referred to above that there are divergent opinion amongst the judicial authorities on the point whether an accused who has been absconded loses the right of bail on the sole ground of his absconsion, irrespective of the merits of the case against, him, i,e,, whether his case falls within the ambit of further inquiry or not. However, the weight of judicial opinion is in favour of the view that an absconder who seeks pre-arrest bail loses such right after his abscdndence; the only exception is a case reported as The State v. Malik Mukhtar Ahmad Awan (1991 SCM R 322), relied by the learned counsel for the accused-respondent, wherein the accused was admitted to pre-arrest bail by the High Court and the petition for leave to appeal was dismissed by the Supreme Court observing that the discretion exercised by the High Court did not call for interference.
7. The moot point in this case is whether the accused-respondent could prove to the satisfaction of the Court that his absence from Mirpur Town was an innocent one because it was in connection with his business affairs. After giving due consideration to the fact that the respondent remained at large for three months and eighteen days of the registration of the case against him and only surrendered himself to the Court three days prior to the presentation of the challan, goes a long way to show that, prima facie, he absconded to avoid his arrest; I am not impressed by the argument that the accused was ignorant of the registration of the case against him during the period of three months and eighteen days in this age of swift means of communication, even if it is assumed that he was busy with his business affairs in Pakistan, especially so when he was declared an absconder after taking appropriate proceedings under section 87 of Cr.P.C.
8. In the aforesaid view of the matter I have no doubt in my mind that the absence of the accused- respondent was a deliberate one and falls within the ambit of "abscondence' which disentitled him to seek pre-arrest bail in view of the dictum given in Murad Khan's case, referred to above, and a number of cases including the cases of this Court; pre-arrest bail cannot be granted to an absconder, irrespective of the merits of the case against him.
' In the light of what has been stated above, I accept the appeal, set aside the impugned orders of the trial Court and the Shariat Court and cancel the to the accused-respondent. He shall be arrested and committed to the judicial lock-up forthwith. It may be observed that after arrest, if so advised, he may move the trial Court for his bail; the trial Court may consider the same and pass an appropriate order in the matter according to law.
Bail cancelled.