AKHTAR ALI vs AZHAR ALI SHAH And Other

M.S.H. QURAISHI, J.--This appeal by leave of the Court is directed against the order of the Sukkur Bench of the Sind High Court, dated 21-2-1984, whereby the plea of the appellant/complainant for recall of bail granted to the respondent by the said Bench on 14-2-1984 was refused.

2. The appellant is the brother of the respondent who is accused of murdering their father in December, 1979. The respondent having remained absconder for some 22 months, surrendered on 21-10-1981. His repeated applications before the trial Court for bail having been rejected, he applied to the High Court, in the result of which he was granted bail on 14-2-1984. The main consideration for the grant of bail was clause (b) to the third proviso to section 497(1), Cr.P.C. The appellant sought recall of the order, urging that the respondent was guilty of suppression of material facts including rejection of his bail application by the trial Court only three days earlier, i.e. On 11-2-1984, and of delaying the trial. But his application was refused by the impugned order. The appellant's plea that the respondent was responsible for delaying the trial was rejected upon a finding that he had sought only to adjournments during the period of more than to years. This finding was disputed at the the of grant of leave and it was urged that the delay had taken place either on account of the respondent or of one of his co-accused. It was urged that even after the grant of bail the respondent had been delaying the trial. While granting leave, notice was also issued to the respondent to show cause why in view of the suppression of material facts, his application for bail be not ordered to be re-heard.

3. The assertion that the respondent was not free from blame for the delay in the trial of the case is not without force, The F.I.R. In the case had been lodged on 16-12-1979. The respondent had remained absconder for 22 months. Even after the grant of bail by the High Court, he or his counsel had been responsible for repeated adjournments. According to the appellant's counsel, adjournment had been taken by the respondent's counsel on 19-5-1984 and by the respondent on 4-6-1984. On 8-7-1984 the respondent remained absent for the reason that his train was late. On 17-11-1984 he took adjournment on the plea that his Advocate had gone to attend the High Court at Karachi.

4. After hearing both sides, we are satisfied that bail to the respondent was not deserved. The fact that he had remained absconder for a long the was a relevant factor and should not have been lightly taken in enlarging him on bail. His conduct, to, shows that he is not free from blame for the delay in the trial. We, therefore, allow the appeal and cancel the bail granted to the respondent.

The trial Court may, however, consider the grant of bail to him at the conclusion of the trial, under section 497(4), Cr.P.C. If the grounds for such bail be available.

M.Z.M.