RASHEED AHMED RAZVI, J.---Present accused namely Saleem son of Abdul Wahid Chang is facing trial alongwith four other co-accused before the Special Judge (Suppression of Terrorist Activities), Hyderabad for offence under sections 302, 148 and 149, P.P.0 for allegedly committing double murder in Crime No, 46 of 1996, Police Station Hatri, Hyderabad Division. His previous bail application (Criminal Bail Application No,311 of 1997) was rejected by this Court while sitting at Hyderabad Circuit Bench. The instant bail application has been filed on the ground of statutory delay in conclusion of trial.
2. We have heard Mr. S.A. Shaukat Naqvi, Advocate for the accused/applicant and Mr. Ghulam Mustafa Lakho, Advocate for the State. Police papers were scrutinised with the assistance of both' the counsel. We have perused certified copies of the diary sheets of the trial Court filed by Mr. Naqvi which start from 1-10-1996 and end at 18-3-1999. It is not disputed that present accused was arrested on 17-9-1996, charge was framed on 3-10-1998 and that despite passage of more than two years and eight months not a single witness has been examined. Mr. Shaukat Naqvi has also pleaded the rule of consistency in treating two accused placed in the similar circumstances. He has referred to an order dated 1-3-1999 in Criminal Bail Application No, 1309 of 1998 (Ryder and 2 others v. The State) where co-accused Arbab son of Ghazi Chang was granted bail on the ground of statutory delay. Our attention is drawn to the allegations in the F.I.R. Where it is alleged by the complainant that Saleem (present applicant) and Arbab Chang (co-accused who has been granted bail) were firing in the air. No other role has been assigned to the present applicant. Mr. Naqvi has pointed out that against co-accused Arbab Chang, there was further allegation of dragging the dead bodies of the two deceased killed in the alleged offence but there is no other allegation of any overt act against the present applicant. This fact has not been disputed by the learned counsel for the State. In so far as rule of consistency is concerned, there is no cavil to the proposition that where two accused who are placed in similar circumstances and one of them has been granted bail, the other is also entitled to the same treatment. (If any reference is needed, see Muhammad Yousuf v. The State (1983 SCMR 102) and Muhammad Fazal alias Bodi v. The State (1979 SCM R 9).
3. It is settled law that an accused would be entitled to grant of bail by virtue of third proviso if he qualifies under fourth proviso to subsection (1) of section 497, Cr.P.C. In other words, if the Court comes to the conclusion that an accused seeking bail on the ground of statutory delay falls under any of the categories namely, a previously convicted offender, or a hardened, desperate or dangerous criminal or a terrorist, he would not be granted bail on this ground. During hearing of this bail application, prosecution was not able to successfully show that the present applicant is not entitled to bail on ground of statutory delay as he falls in any of the abovementioned categories. No material was placed before this Court which may disentitle the present applicant for bail on the ground of statutory delay. However, there is one important factor which relates to the conduct of the present applicant/accused and cannot be ignored while examining the fact whether he is hardened, desperate or dangerous criminal. During perusal of case diaries by us, we have noted that the present applicant/accused manipulated his release on bail on a forged order of Hon'ble Supreme Court and succeeded in getting himself released from jail.
4. Mr S.A. Shaukat Naqvi, learned counsel for the accused when confronted with this fact, contended that the present applicant/accused was arrested from the Court premises after a brief period of his release on so-called bail while he was attending proceedings of some other criminal case. It was contended that accused Saleem Chang.Did not abscond and that the forgery of the bail orders of Hon'ble Supreme Court was act of some other person who was paid a sum of Rs,15,000 for engaging an Advocate of Supreme Court to seek bail. It was suggested that had it been with the connivance of the present applicant, he would have absconded for good and would have not appeared voluntarily before the Court in the other case. However, no material is placed by Mr. Naqvi to prove the above contention.
5. A perusal of case diaries of the trial Court indicates that on 24th January, 1998, a certified copy of bail order dated 20-1-1998 was received in the office of the trial Court which shows that accused Saleem Chang was released on bail upon furnishing Rs,2,00,000 (Rupees two lacs only) in cash which was accordingly deposited in the office of Deputy Registrar Judicial, Supreme Court of Pakistan at Islamabad. Accordingly, accused Saleem Chang was released. Thereafter, on next two dates of hearing i,e, 16-2-1998 and 4-3-1998, accused saleem Chang did not appear and, therefore, learned trial Court ordered for issuance of N.B.Ws. Against him. This fact belied the contention of Mr. Naqvi that he voluntarily appeared in some other case. There is no explanation as to why he did riot appear on the two abovementioned dates which resulted in issuance of N.B.Ws.
Against him. Subsequently, reports were called by the trial Court which indicate that no order was issued by the Hon'ble Supreme Court granting bail to accused Saleem Chang. The fact that an F.I.R.
No,19 of 1998 was registered and he has been granted bail by a learned Single Judge of this Court is of no consequences. Mr. S.A. Shaukat Naqvi has placed reliance on the following cases:--
(i) Abdul Salam v. The State (1980 SCM R 142);
(ii) Muhammad Yousaf v. The State (1983 SCMR 102);
(iii) Shahzad v. The State (1996 PCr.LJ 978);
(iv) Muhamamd Naseem alias Naseemo v. The State (1996 PCr.LJ 1302); and
(v) Siddique alias Gaila v. The State (1997 PCr.LJ 790).
6. All the above-cited cases pertain to the principle of rule of consistency. In the instant case, there is an additional factor which we are not inclined to ignore. It is the abscondence of the present applicant after he was released on a forged bail order. We have noted earlier that on 16-2-1998 and 4-3-1998, he remained absent after getting himself released upon forged bail order. No explanation is available on record. However, Mr. Shaukat Naqvi has filed a certificate issued by Assistant Executive Engineer to the effect that applicant submitted his joining report on 27-1-1998 and was arrested from his duty on 7-2-1998. Mr. Naqvi has also filed another certified copy of case diary dated 3-2-1998 in Sessions Case No, 137 of 1995 which is pending before 7th Additional Sessions Judge, Hyderabad and contended that present accused appeared in that case and, therefore, he cannot be called an absconder. All this material requires investigation which cannot be conducted during hearing of bail matter and at the level of High Court. All this material was not placed before the trial Court in order to enable it to probe into such grounds. Despite attraction of the rule of consistency, we are not inclined to exercise our discretion in favour of applicant/accused on account of his abscondence. We are fortified in our view by the case Rao Qadeer Khan v. The State (PLD 1981 SC 93) where pre-arrest bail was declined to a petitioner who was an absconder. This rule was reiterated by the Supreme Court in the case Awal Gul v.
Zawar.Khan and others (PLD 1985 SC 402). It would be advantageous to reproduce two relevant paragraphs from the case of Rao Qadeer Khan (supra) which read as follows:-- "We have examined the grounds urged by him. It stands prima facie established that the petitioner was an absconder. This would be so even if the explanation offered from the petitioner's side is taken into consideration. The abscondence is of such period and type that the petitioner has disentitled himself to the concession for bail, whether the case falls within the prohibitory or other field of subsection (1) of section 497 read with 498, Cr.P.C. We are also in agreement with the learned Courts below that the conduct of the petitioner by making repeated applications for anticipatory bail, trying to gain .Advantage thereunder and then absenting for periods of time, amounted to abuse of the process of law and Court. It disentitled the petitioner to the discretionary relief."
7. As a result of the above discussion, the instant bail application is dismissed. However, it will be open to the present accused to repeat bail application on the same ground before the trial Court which will be free to inquire, into the allegations of his abscondence and if it is found that there is no element of such act on his part, to deal with the application on merits.
8. With the above observations, this bail application stands dismissed.