SHER AHMED alias SHERI Versus State
ORDER
SHAHID HAMEED DAR, J.--- This is an application, through which Sher Ahmad alias Sheri (petitioner) sought post-arrest bail, being an accused of case FIR No.113/2009, dated 17.12.2009, under sections 302, 324, 148, 149, 109, P.P.C., registered at police station Shahpur City, District Sargodha.
2. The brief facts are that Rana Muhammad Tufail (complainant), his son Muhammad Yaqoob, brother Muhammad Zafar along with two others, Rana Muhammad Azam and Rana Muhammad Aziz, aboard a car, bearing Registration No.6525-Karachi-S, set-off for Sargodha-Kutchery at about 8.30 a.m. on 17.12.2009 from the dera of Rana Muhammad Azam, so as to appear before a court in connection with their trial in case-FIR No.73/2008, under section 302, P.P.C., registered at police station Shahpur City; when they reached Mangowal-Shahpur metalled road, five armed persons including Sher Ahmad alias Sheri (petitioner) ambushed their vehicle from a sugarcane field, who raised Lalkara as to avenging the murder of his behnoi Sikandar Hayat, whereon they alighted from the car and started running to save themselves; Sher Ahmad (petitioner) fired into the chest, below right axilla of Muhammad Yaqoob through his .12-bore double barrel gun and his co-accused also opened straight firing, which hit Muhammad Yaqoob and Rana Muhammad Azam, beside their vehicle; the injured were being shifted to Sargodha for treatment, when Muhammad Yaqoob succumbed to the injuries near Jhal Chakkian, the other injured was; however, taken to civil hospital Shahpur for his medical examination. The motive, behind the occurrence was that Sikandar Hayat, behnoi of Sher Ahmad (petitioner) was murdered on 29.7.2008 and FIR No.73/2008 (supra) was registered against Muhammad Yaqoob (deceased) and Muhammad Azam etc., due to which accused Sher Ahmad etc. committed murder of Muhammad Yaqoob on the abetment of Rana Muhammad Saeed etc.
3. It appears that immediately after the above incident, Sher Ahmad, the present petitioner, absconded. He was declared an absconder after issuance of necessary proclamations etc. against him on 27.1.2010 and challan under section 512, Cr.P.C. was submitted by the police, with his name in red ink in column No.2 thereof, on 2.2.2010. A report under section 173, Cr.P.C. was tendered against four co-accused, Rab Nawaz, Khalid Dad, Rana Muhammad Saeed and Rana Fazal Ahmad on 10.3.2010, who faced trial. Rab Nawaz accused was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life by the learned Additional Sessions Judge, Sargodha vide judgment dated 13.10.2011, whereas Khaliq Dad and Rana Muhammad Saeed were acquitted of the charge. Rana Fazal Ahmad, however, died pending trial. The convict, Rab Nawaz filed Criminal Appeal No.1793 of 2011, which is still pending adjudication. It may be observed that the petitioner was arrested, in the meanwhile, on 2.12.2013 and he is continuously behind the bars since then. His trial has not concluded as yet, mainly for the reason that original judicial-record had been submitted before this court in the mentioned criminal appeal.
4. In support of this application, learned counsel appearing on behalf of the petitioner has vehemently contended that the petitioner's earnest desire to have his trial expeditiously concluded has not materialized despite his fullest cooperation with the trial court, as judicial-record of the case had been requisitioned by this court in Criminal Appeal No.1793/2011, filed by one of the co-accused, who had been tried and sentenced by the learned trial court through judgment dated 13.10.2011. Learned counsel has invited our attention to the fact that the petitioner was taken into custody on 2.12.2013 and he has continuously been behind the bars since then with his trial, just commenced on 19.2.2016, after receipt of judicial record from this court. According to him, the petitioner or any other person acting on his behalf did not occasion delay in any way and protraction of the trial over two years could solely be attributed to the prosecution, for having failed to fetch the relevant record well in time. He thought that abscondence of four years could hardly dent the petitioner's quest for bail on the ground of statutory delay, for his imprisonment for more than two years was continuous and unpolluted by any trickiness. He maintained that none of the adjectives (hardened, desperate or dangerous criminal) contained in the 6th proviso to section 497(1), Cr.P.C. could hit the petitioner's bail plea, as his demeanour was aboveboard and not marred by any previous criminal history.
5. On the other hand, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant has opposed this application with equal vehemence by contending that no other person but the petitioner lengthened proceedings of the trial over two years, as his four years' unexplained abscondence caused judicial record to remain stuck up in an appeal, filed by his co-accused before this court. It has also been contended by them that the petitioner was main accused nominated in the FIR as he allegedly caused a fatal injury on the chest of the deceased, which showed heartlessness on his part, hence, he may not be released on bail on the ground of statutory delay.
6. After hearing scholarly submissions of the learned counsel for both the sides and going through the relevant record, it is straightaway observed that the petitioner's trial could have concluded on 13.10.2011, like that of his co-accused, had he not absconded for about four years before being arrested on 2.12.2013. His co-accused, Rab Nawaz filed Criminal Appeal No.1793/2011 against his conviction/sentence, handed down to him by the learned trial court through judgment dated 13.10.2011, which is still pending before this court and judicial-record of the trial, which is essentially needed for the petitioner's trial as well, remained stuck up in the said appeal for years and learned trial court, in the meanwhile, could do nothing but sit in-wait cross-fingered, hoping for the best. The patience of the learned trial court paid off as it received the requisite record on 19.2.2016 from this court and it indicted Sher Ahmad (petitioner) on 25.2.2016, more than two years after his arrest and about 4-1/2 years after conclusion of the trial of his co-accused. The requisite report, as to present stage of the trial, submitted by the learned trial court revealed that prosecution witnesses regularly appeared for their examination on each and every date of hearing fixed by the court, after it charge-sheeted the accused, but they could not be recorded due to observance of continued strikes by the local bar association. This is how, the accused perennially delayed proceedings of the trial and maximized agony of the prosecution to a cracking limit. It is a plain equation for the petitioner to understand that his four years unexplained abscondence is directly relatable to delayed commencement and conclusion of his trial. His immediate arrest after the occurrence would have inversed the equation and he might have been seen astride, like his co-accused after conclusion of their trial on 13.10.2011. Compendiously speaking, the delay of more than two years in conclusion of his trial can unequivocally be attributed to the petitioner, for his timely surrender before the police, immediately after the occurrence, wouldn't have let this situation arise that he found himself in, at the moment. It goes without saying, that longstanding unexplained abscondence would cause loss of some of the normal rights guaranteed under the procedural law and the substantive law, to the petitioner. How would the factum of remaining an absconder effect the rights of an accused person to bail, has been viewed by the apex court in Awal Gul v. Zawar Khan and others (PLD 1985 SC 402), as under:-
"Unfortunately it has not been noticed in the High Court that all the accused in this case absconded. It has also been ignored that in proper cases, even at the trial, abscondence can be treated as a very important piece of evidence (as corroboration of eye-witnesses on showing the conduct of the accused). It has also been unfortunately ignored that this Court has time and again cautioned that such a conduct cannot be ignored under any law or principle. In some recent decisions also this question has been duly highlighted. They are Rais Khan v. Said Hanif and another (1979 SCMR 90), Rao Qadeer Khan v. The State (PLD 1981 SC 93), Hayat Bakhsh and others v. The State (PLD 1981 SC 265) and Kh. Azhar Hussain and another v. The State (1983 SCMR 978). It is now well-established law that a fugitive from law and Courts loses some of the normal rights granted by the procedural as also substantive law. It is also a well-established proposition that unexplained noticeable abscondence disentitles a person to the concession of bail notwithstanding the merits of the case --- the principle being that the accused by his conduct thwarts the investigation qua him in which valuable evidence (like recoveries etc.) is simply lost or is made impossible to be collected (by his conduct). He cannot then seek a reward for such a conduct (in becoming fugitive from law)."
The petitioner's case is no exception, as his abscondence is longstanding, spanning over four years and unexplained as well. He has to blame himself for the lawful and tedious situation, he finds himself in at present and none else, including the prosecution, is to be blamed for it. The 5th proviso to section 497(1), Cr.P.C. underlines that delay in conclusion of trial by the accused or by any other person acting on his behalf would render him disentitled to grant of bail, despite having been in jail for more than two years in relation to a crime, punishable with sentence of death. Likewise, the 6th proviso envisages that right to bail on statutory delay would not be available to a previously convicted person for an offence punishable with death or imprisonment for life or he was a hardened, desperate and dangerous criminal or he committed an act of terrorism, which entailed capital punishment or imprisonment for life. It may be advantageous to reproduce the 5th and 6th provisos, which read as under:-
"Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail.
(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or
(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial far such offence has not concluded.
Provided, further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life."
A perusal of the above quoted 5th proviso would indicate that the court is obliged to release a person on bail, being accused of an offence not punishable with death, if he has been detained for such an offence for a continuous period exceeding one year and whose trial for such offence has not concluded. Similarly, under clause (b) of the above proviso, the court is obliged to release a person, who, being accused of an offence punishable with death, if he has been detained for such offence, for a continuous period exceeding two years and whose trial for such offence has not concluded. However, this is subject to the condition provided in the above 5th proviso, that the delay in trial of the accused shouldn't have been occasioned by any act or omission of the accused or any other person acting on his behalf.
Whereas 6th proviso eclipsed the above statutory right of an accused to grant of bail on the ground of statutory delay by emphasizing that the concession as allowed in the 5th proviso would not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person, who in the opinion of the court, was a hardened, desperate or dangerous criminal or involved in an act of terrorism punishable within the provisions of the Anti-Terrorism Act, 1997 or allied laws. The Hon'ble Supreme Court of Pakistan while dealing with the case of Sher Ali alias Sheri (1998 SCMR 190), which has stunning resemblance with that of the petitioner, observed as under:-
"14. In our view, simpliciter an act of abscondence on the part of an accused person will not disentitle him to claim bail on the ground of statutory delay, which right accrues to him after he has been arrested and the statutory period mentioned in clause (a) or clause (b) of aforementioned third proviso, as the case may be, has expired. However, if the act of abscondence has contributed towards the delay of the trial, in that event, an accused person would not be entitled to seek bail on the ground of statutory delay. In the case in hand if the Petitioner would not have absconded, he would have been tried with the other co-accused, whose trial was concluded by the learned Additional Sessions Judge on 31.10.1991. Their appeal was disposed of by the High Court on 16.07.1995. Four of the accused were granted leave to appeal by this Court on 24.10.1995. The case against the present petitioner could not be proceeded with as the trial Court could not get the record of the case from the High Court till 2-1-1997. In our view this period of delay is attributable to the petitioner. There would not have been any occasion to summon the above record for proceeding with the trial against the petitioner if he would not have absconded. The petitioner cannot take advantage of his own wrong. We are not in agreement with the learned Additional Sessions Judge or the learned Judge in Chambers that the delay on the part of the accused to engage a counsel or to get a counsel engaged by the State before 30-9-1996, was relevant in the present case as admittedly the record was received from the High Court on 2-1-1997 and before that the case could not have been proceeded with."
The petitioner has statedly been involved in six other cases of various nature, including heinous ones as well, but it did not mean that he was a hardened, desperate or dangerous criminal, as no such material existed herein, which could justify thrusting of any of the said attributes upon him. Reliance in this regard may be had on Moundar and others v. The State (PLD 1990 SC 934).
7. To put it precisely, I am inclined to hold that the delay in trial has been occasioned by the petitioner, so, he is not entitled to be released on bail within the fifth proviso to section 497(1), Cr.P.C. This petition has no merits, hence, dismissed.
8. It is, however, directed that the trial court would take on to every legal measure, so as to conclude the petitioner's trial within six months from the date of communication of this order, failing which, reasons should be conveyed to this court. The office should intimate the trial court about this direction forthwith.
SL/S-46/L Bail dismissed.