1. Applicant Munir Ahmed has filed this application for cancellation of bail, granted to respondent Choudhry Altai Hussain by learned IV Additional Sessions Judge, Mirpur Mathelo, vide order dated 21st August, 2001, in Sessions Case No,79 of 1996, pertaining to Crime No,14 of 1996 of Police Station Dharki. Heard Mr. Mehboob Ali Shah, learned counsel for the applicant, Mr. Gul Bahar Korai, learned counsel for the respondent and Mr. Sher Muhammad Shar, learned Assistant Advocate-General, Sindh. The facts giving rise to the moving of this application are to the effect that deceased Abdul Rashid son of Kamal by caste Gopang, was serving as Hari on the land of one Khan Muhammad Arain, who was on disputing/litigation terms with respondent No,1 Ch. Altaf Hussain, over the dispute of some lands and for such reason, the respondent No,1 and others had been asking deceased- complainant Abdul Rashid to leave the lands of Khan Muhammad and others, failing Which, he was to be killed at .Their hands; on the day of incident of this case viz. 22-2-1996, he went to the disputed land to lift the chaff when at about 19-00 hours respondent No,1 emerged from the house of Lutuf Pitafi alongwith Raja Abdul Quddus, Abdul Rauf, Abdul Aziz, Lutuf Pitafi and Ashfaq (son of respondent No,1) with other six unidentified culprits; first mentioned five' accused were allegedly armed with guns, Ashfaq was allegedly armed with rifle and the unidentified culprits were also armed with rifles; respondent No,1 Ch, Altaf Hussain is alleged to have had instigated the others to attack upon deceased complainant Abdul Rashid and to kill, stating the reasons that respondent No,1 and others repeatedly been asking him not to cultivate the land of Khan Muhammad, but was not acceding to their such demands and, on such instigation of respondent No,1, co-accused Ashfaq fired the rifle-shot straight towards deceased complainant Abdul Rashid with intention to kill him, who thereby sustained bullet injury on right side of chest above nipple and fell down on the ground, while raising cry; remaining culprits arm- I with guns allegedly fired towards him but the shot missed; on his cries, and on fire-arm report, Kamal father of the said deceased complainant Rashid Ahmed and Munir Ahmed and his brother went running and entreated the accused persons in the name of Holy Qur'an, not to further attack upon Abdul Rashid, whereupon they all went away while abusing, firing in the air and while taking their respective fire-arms with themselves. Deceased injured complainant Abdul Rashid arranged for himself to be taken to Dharki Police Station, where he lodged F.I.R. At 21-05 hours, stating therein the above stated facts, by further stating that the said accused persons attacked upon him at the instructions of respondent No,1 over the dispute of the land by making co-accused Ashfaq to fire his rifle straight on him, and with intention to kill him; and that he would be able to identify the six unidentified culprits whenever he would see them; police referred him to the hospital where he was admitted for treatment, but succumbed to his injury and died on 24-2-1996. During the investigation of the case, respondent No,1 filed application for bail before arrest before learned trial Court, which was dismissed vide order dated 22nd May, 1996, whereafter the said respondent preferred similar Bail Application bearing No,372 of 1996 in this Court, which was heard by Hon'ble Mr. Justice Abdul Hameed Dogar (as his lordship then was) and was dismissed vide order dated 21-11-1996 with the following observations:-- "According to F.I.R. Applicant Ch. Altaf Hussain is the main accused, who had enmity over the landed property with Khan Muhammad Arain and complainant being his Hari was prohibited by applicant to leave the Hariship of said Khan Muhammad Arain. The applicant not only instigated the other accused to kill complainant but fired alongwith other -accused at him. Though the fire of applicant missed but the same shows the intention that he had in his mind not to spare the complainant and thus participated actively in the commission of offence. The plea of alibi raised at the earlier investigation was subsequently found false by C.I.A. Police, who challaned him and the other co-accused before the competent Court of law, therefore this plea at this stage of bail before arrest could not be judged in face of prima facie material as discussed above. The same view has been taken by the Lahore High Court in the case of Liaqat Ali v. The State reported in 1996 PCr.LJ
833. About the sickness as agitated above, the applicant has neither produced any medical evidence in support of alleged sickness nor has given any other proof, alongwith his bail application, In the case of Muhammad Ishaque v. Chanzaib and another (1996 PCr.LJ 845(b), bail of the accused was cancelled by the Peshawar High Court under the similar circumstances. Above all applicant Ch. Altaf Hussain has misused the concession of interim to him by this Court by remaining absent wilfully and deliberately on 7-6-1996, on 21-8-1996, 18-6-1996, 9-10-1996 and 21- 10-1996 and such reference for cancelling the bail was made by the learned Sessions Judge, Ghotki on 22-8-1996 intimating that above applicant is not attending' the Court since 7-8-1996 without intimation. Honourable Supreme Court in the case of Mehar Ghulam Nabi v. Muhammad Shareef and another reported in 1979 SCM R 479 (a) has laid down a dictum on the cancelation of bail, wherein the concession of bail being abused in a manner so as to obstruct or hamper course of trial is found one of the valid ground for cancellation of bail. Not only this but while orders were being dictated in the Court after hearing the arguments of the learned counsel, the applicant slipped away from the Court-room, which shows that he has no regards for the Courts and is habitual of running away from the Courts and therefore, does not deserve extraordinary concession of bail extended to him earlier.
2. "In view of the above circumstances, I do not feel inclined to extend the concession of pre-arrest bail to the applicant Ch. Altaf Hussain and re-call the order dated 29-5-1996, whereby applicant was allowed interim pre-arrest bail and dismiss his application for bail before arrest."
3. It so appears that since the said dismissal of his bail application on 21-11-1996, respondent No,1 remained fugitive from law till the month of August, 2001, when he filed "an application for bail after arrest" by means of "showing the surrender before the trial Court", which was heard by Mr. Ghulam Shabbir Dayo, IV Additional Sessions Judge, Mirpur Mathelo, who vide order dated 21-8-2001, admitted the respondent No,1 to bail with the following observations:- "After hearing the arguments, I have perused the contents of F.I.R.,. Police papers and R & Ps of the case. In the F.I.R., the allegation of instigation as well as of ineffective firing are listed against present applicant whereas deceased had sustained only one bullet injury which has been attributed to co-accused Ishtiaq who is admitted to bail on the statutory ground of delay in trial.
4. Record reveals that remaining co-accused namely Abdul Quddus, Abdul Raul, Abdul Aziz and Lutuf have been admitted to bail by (Mr. Muhammad Sadiq Leghari), the then Honourable Sessions Judge, Ghotki on the ground of ineffective firing. The case of present applicant is also at par with said co-accused. Admittedly, after refusal of grant of pre-arrest bail from the Honourable Supreme Court, the applicant voluntarily has surrendered before this Court and have produced documents of his continuous treatment of heart problem and diabetes: I have gone through case-law referred by the learned D/C reported in 1995 PCr.LJ 1316, in which, our lordship Mr. Justice Mamoon Kazi and Mrs. Majida Razvi, admitted the accused to bail and observed that accused was an absconder and proceedings under sections 87, 88, Cr.P.C. Had been ordered but rule regarding refusal of bail to an absconder was not an absolute rule and exceptions could always be made depending upon the circumstances of the case. In the said reported case it was also, held, that co-accused was admitted to bail and same was sufficient ground making an exception to the said rule. This view also finds support from the case-law reported in 2001 PCr.LJ. 1125 (Kar.). Here in this case, proceedings under sections 87/88, Cr.P.C. Also initiated against present applicant but co-accused have been admitted to bail, case of the present applicant is identical to co-accused. I have also gone through another authority reported in 1983 SCMR 124, in which accused was admitted to bail on the ground that case of applicant is similar to that of his co-accused. Since the applicant is old aged about 68 years and is suffering from any' disease, therefore, in view of no objection of learned D.D.A. And in the light of the abovesaid lucid authorities, I am inclined to admit the applicant to bail. I therefore, grant bail to applicant/accused Chaurdry Altaf Hussain Arain subject to furnishing surety in the sum or Rs,2,00,000 (Two Lacs Rupees only) and P.R. Bond in the like amount to the satisfaction of this Court." Learned counsel for the respondent has relied upon case-laws, as under: In 1991 SCM R 322, it was held by the Hon'ble Supreme Court of Pakistan that rule that a fugitive from law should under no circumstances be enlarged on bail, is not absolute, although abscondence does constitute a relevant factor when examining question of bail. In the another case reported in 1988 SCM R 918 challan in the case had been submitted in the trial Court and trial was to start shortly and Hon'ble Supreme Court declined to recall order allowing bail with observation that trial Court would be at liberty to cancel bail, if on recording any evidence incriminating material was brought against any of them. In the case reported in 1995 PCr.LJ 1316, a Division Bench of this Court held to the effect that rule regarding refusal of bail to an absconder was not an absolute rule and exception could always be made, depending upon the circumstances of the case. In another case reported in 2001 PCr.LJ 865, this Court declined to cancel the to the accused on the ground that he was only alleged to be present at the place of incident, but nothing had been attributed against him excepting firing in the air, which was a matter of further inquiry. In another case reported in 2001 PCr.LJ 701 (Karachi), accused was admitted to bail on the ground that statement of the deceased recorded under section 161, Cr.P.C. Would call for its determination as dying declaration at the time of trial to go into it further and to explore the reason for such observation would amount to deeper assessment of evidence, at bail stage, which might prejudice the case of either party, while accused had made ineffective firing and enmity was alleged between the parties, which was held to be a matter of further inquiry. It is held in another case reported in 2001 PCr.LJ 1073 to the effect that role attributed to more than one accused being similar and identical to that of two co-accused already released on bail, they should not have been meted out a discriminatory treatment and they were also entitled to the concession of bail on the rule of consistency.
5. With utmost respects and regards, the facts and circumstances of the cited cases are different from those of the case in hand. It is a settled provision of law that each criminal case has to be decided in view of its own peculiar facts and circumstances and the authority in one criminal case has hardly any bearing on the other criminal case. Applicant has placed a copy of order dated 22nd May, 1996 passed by the learned Sessions Judge Ghotki in the application for bail before arrest, which was filed by respondent No,1 with co-accused Abdul Rauf, and which was dismissed and it has been recorded in the said order that respondent No,1 was absent when the said order was announced. So also, it has been observed in the abovesaid order dated 21-11-1996 of this Court, "not only this but while orders were being dictated in the Court after hearing the arguments of learned counsel, the applicant slipped away from the Court-room, which shows that he has no regards for the Courts and is habitual of running away from the Courts and, therefore, does not deserve extraordinary concession of bail extended to him, earlier". As stated, since the said date of passing of the order by this Court, till showing his "surrender" before the trial Court, he had been absconding and remained fugitive from the process of law. He appears to have taken a plea of his sickness and infirm/weak-physique but it has been observed in the earlier order passed by this Court on 21-11-1996 at page No,7, "the applicant has neither produced any medical evidence in support of alleged sickness nor has given any other proof alongwith his bail application". Even if he could be presumed to have remained sick, then also no explanation is put forward by him, as to why' he did not move a bail application at the earliest stage in the trial Court to that effect, which further supports the plea raised by learned State Counsel that respondent No,1 intentionally remained fugitive from the process of law; and is not entitled to grant of bail.
6. Further plea has been raised on behalf of the said respondent that he "surrendered" before the learned trial Court whereafter application for bail after arrest was filed for him, which was heard and bail was granted to him by the learned IV Additional Sessions Judge, Mirpur Mathelo; "surrender by the said respondent before the trial Court" appears to be a managed affair inasmuch as he had remained fugitive from the law for a very long period without intimation to the trial Court, and also the fact that he was granted bail immediately on filing of a bail application for him before the Additional Sessions Judge. The conduct and behaviour, as pointed out on the part of respondent No,1 indicates that he had no intention to "surrender" and had been looking for circumstances of his favour to arrange for "surrender" before the trial Court. Had he been carrying the least possible respects and regards for the process of law/Courts he would have surrendered before the trial Court long before. The conduct and behaviour of the respondent can properly be assessed in the light of the observations recorded in a case,' reported in 1999' PCr.LJ 616 (Pesh.): "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 absconcion. The prosecution has failed to effect the recovery of crime pistol due to abscondance 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 abscondence disentitles the absconder to the concession of bail notwithstanding merits of the case.
7. "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 peacemeal. 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 major role, as happened in the present case. By adopting such: techniques the culprits pressurise 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 relatives feel hesitation in deposing 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 Court of justia. 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." In another case reported in PLD 1999 Kar. 445, this Court while cancelling the by the trial Court to the accused recorded the following observations:-- "The record shows that after taking the respondent/accused in custody warrant under section 344, Cr.P.C. Was prepared whereby the Superintendent, Central Prison, Karachi, was directed to produce the respondent/accused in the Court on 18-9-1998 at 6-30 a.m. But instead of sending him to judicial custody, on the oral request of the defence counsel the same bail application was again considered by the learned Sessions Judge for anticipatory bail. It is amazing that without seeking proper bail application the police papers were arranged by Mr. Mehmood Bhatti, the District Attorney without raising any objection as to the manner in which the request for bail was being considered, conceded to the grant of bail on merits." In yet another case, reported in PLD 1985 SC 182, Hon'ble Supreme Court of Pakistan recorded the following observations, while cancelling to the accused:-- "As for the effect of abscondence, the Court referred to its earlier decision in Awal Gul v. Zawar Khan etc. (Criminal Appeal No,15-P of 1984, decided on 28th November, 1984) in which the law in respect of persons who become fugitive from law was laid down. Herein, it was observed that 'a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law' and it was added that 'unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case'; and went on to observe that: In some rare cases notwithstanding abscondence the accused might be released on bail; for example; when the accused is .a woman, a child or a sick and infirm person or when he otherwise becomes entitled to bail as of right under subsection (2) of section 497, Cr.P.C. And/or the so- called abscondence is satisfactorily explained by the accused so as to establish that in reality it did not amount to abscondence.' It is in.The light of the law laid down, by this Court in the above decisions that the effect of the abscondence by the respondents on their right to obtain bail will fall for consideration."
8. Moreover, the prosecution case is based on the allegations against respondent No,1 that it was he with others, who had been on disputing/litigating terms with one Khan Muhammad and others over some lands and only because deceased complainant Abdul Rashid happened to be working on the land of Khan Muhammad, respondent No,1 had issued threats to kill him if he failed to leave the said land and further that only because the said deceased-complainant did not obey his said direction, respondent No,1 alongwith co-accused persons went to him and attacked upon him at the instigation of the respondent therein with a clear direction to kill him, and further that the deceased was fired upon by none else but by the son of respondent No, 1 . The said fact, coupled with the fact that he remained fugitive from law, disentitles him to the grant of bail and, therefore, the impugned order dated 21-8-2001, passed by learned IV Additional Sessions Judge, Mirpur Mathelo does not appear to have been passed on sound principles of law. This application is hereby allowed and the impugned order is set aside and the to respondent No,1 Ch. Altaf Hussain is recalled. He is hereby directed to be taken into custody. To be produced before the learned trial Court to face the trial of the case.