KABIR AZAD vs THE STATE
This matter concerns a petition for post-arrest bail filed by the accused, who was charged under sections 393/34 of the Pakistan Penal Code 1860. The accused had previously been granted bail, but it was subsequently cancelled following his non-appearance and declaration as an absconder. The core legal question was whether the accused, having been declared an absconder and arrested, remained entitled to the concession of bail despite his prior non-appearance. The Court held that bail cannot be withheld as a form of punishment. It reasoned that while the accused had failed to appear, he had already suffered incarceration since his arrest on 3-12-2010. Emphasizing that mere abscondance is not an absolute ground for the refusal of bail if sufficient cause or circumstances warrant, the Court exercised its discretion to grant bail. The key principle laid down is that the denial of bail should not be punitive, and the court may grant bail to an accused who has previously absconded if the circumstances, including the period of incarceration already served, justify such relief.
- Is bail to be withheld as a form of punishment?
- Does mere abscondance constitute an absolute ground for the refusal of bail?
- Can an accused who was previously declared an absconder be granted post-arrest bail if they have already suffered incarceration?
- Section 393, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
' MUHAMMAD ANWAR KHAN KASI, J.---Heard arguments and perused the record.
' The accused/petitioner seeks post-arrest bail in case F.I.R. No,84, dated 15-6-2003, offences under sections 393/34 P.P.C., Police Station Bahara Kahu, Islamabad on the grounds that there is no direct evidence against him and the offences do not fall within the prohibitory clause of section 497(1), Cr.P.C. It is argued that the accused in fact had never absconded but his none appearance was due to non-service of process. It is mentioned that he had never received any summon for his appearance. It is further submitted that the accused will be careful in future and would face the trial.
' Learned Standing Counsel has strongly opposed the bail application by stating that he misused the concession of bail, therefore, not entitled to any discretionary relief.
3. The learned Illaqa Judicial Magistrate had initially admitted him to bail, which was cancelled on his none appearance and thereafter on the ground of his abscondance, the bail was refused and on the same ground learned Additional Sessions Judge, Islamabad also rejected his bail application on 4-1-2011.
4. I have heard the arguments and perused the record.
5. Admittedly, the applicant/accused had been admitted to bail on merits and thereafter due to his none appearance, he was declared absconder and was arrested on 3-12-2010. The superior Courts have repeatedly held that the bail cannot be withheld as punishment and mere abscondance is no ground for refusal of bail if a sufficient cause is shown for none appearance. In the instant case, the accused has already suffered due to his none appearance and is behind the bars since 3-12- 2010, therefore, in my view he is entitled for grant of bail. As such he is ordered to be released provided that he furnishes solvent surety in the sum of Rs, 2,00,000 and PR bond of like amount to the satisfaction of learned Trial Court.