MUHAMMAD IMRANULLAH KHAN Versus THE STATE

Cr.Bail Application No. 766 of 1994, decided on 13th October, 1994.

JUDGMENT SHAFI MUHAMMADI, J.- This order will dispose of three bail applications moved on behalf of applicant Imranullah Khan s/o Muhammad Ahsanullah who has been booked by the prosecution to face trials in several cases pertaining to different Flits. Out of these cases three are pending before the 1st Additional Sessions Judge (Central) Karachi. The bail application repeated for the 2nd time before the said court were turned down on 25.8.1994 in the case arising out of FIRs No315/94 and 232/94 and on 283.94 in FIR Np314/1994. Hence the present applications for bail were preferred before this Court on identical grounds.

2.The enthusiastical arguments advanced by the learned counsellor the grant of bail, tepidly opposition by the learned AAG on behalf of the State, rejection of 1st bail application in November 1993, mention of abscondence of the applicant without any detail in the bail applications, the denial of the allegations of abscondence and counter allegations by the learned counsel that on some political pressure the applicant was implicated, grant of bail to two co-accused by the High Court and refusal of bail to the present applicant, when second bail application was moved before the trial court, and several other such factors left me with no other alternative but to find out the real facts in detail before passing any order on the bail applications. The Superintendent Central Prison Karachi and the trial Court were directed to produce the relevant record while the I.O. Of the case was also ordered to be present in the Court. When the record was received by the Court, it revealed several glaring aspects of the case which can be summarised as under:-

(a)The applicant/accused is being kept in Central Prison Karachi an under trial prisoner in the following ten cases:

FIR P.S Trial Court Under Section 184/93 Risala J.M.I.(South) 224/225-APPC

318/93 A. Maidan A.CJH.II (CIA) 14/S.H.O.

355/93 GIqbal A.C.M.I (CIA) 382/34 PPC.

232/93 N.Nazimabad ADU (Central) 17(3) EHO.

214/93 Nazimabad ADJI (Central) 17(3) EHO.

315/93 Rnazimabad ADJI (Central) 17(3) EHO.

181/93 Clifton(CIA) ADJI (Sourth) 399/402 PPC 185/93 Clifton(CIA) JM.II Sourth) 13rd A.O. 96/94 Aran Bagh A.C.M (CLA) 13-D A.C.

333/93 N. Nasimabad A.C.MJI (CIA) 14-E.H.O.

This detail was shooking for me because I had been given an impression of only three cases pending against the accused.

(b)The I.O. Of the cases, Inspector Malik Rab-Nawaz, disclosed that the present applicant and co- accused Raiz had absconded from police custody on 1.12.1993 when they were brought from Central Prison Karachi to attend cases in the City Courts. He produced the copy of FIR NO. 184/93 dated 1.12.1993 u/S 224-225 225-A PPC lodged by S.I. Muhammad Sharif, In charge Lock-up City Court with Charge Sheet No.96/93 dated 18.12.1993, according to which P.C. Syed Zahoorul Hassan No.4292 and P.C. Ikramullah No.629! Were arrested and challenged due to absconding of the accused. The record produced by the Jail authorities also confirmed this reality that the applicant was. Sent from Central Prison Karachi on 1.12.93 to the City Court but was not brought back to the prison on that day as he was reported to have absconded. According to the statement of I.O. The accused/applicant was re-arrested on 11.7.1994 i.e. After about 7 months but the co-accused Raees was still absconding. If has been alleged verbally by the I.O. That according to the information of the police the absconding accused, Raees is very active in committing different offences and inspire of their* hoctic efforts, he has not been apprehanded till date.

(c)The diary sheets received from the Court of 1st Additional Sessions Judge Karachi clearly show that the Court sent orders to the Jail authorities and even the show-cause notice to produce accused/applicant, as the court had no knowledge of abscondence but the Jail authorities remained enjoying their sound sleep shamelessly and kept every thing hidden from the court about absconding of the accused. It was after the arrest of the applicant that he was produced in the court on 18.7.1994 and was remanded to Jail custody with order of his production on 20.7.1994 i.e. After two days but inspire of such order he was never produced by the Jail authorities in the Court except on 22.9.1994.

It is notable that the matter was adjourned by the trial court after 18.7.1994 on different dates for about nine times during the period starting from 18.7.1994 and ending on 22.9.1994. The trial Court went on sending the letter to the Jail authorities for the production of the applicant but the Jail authorities continued disrespecting the orders of the Court. This shocking conduct of the Jail authorities cannot be and should not be ignored by any Court. It was on account of the unappreciable conduct of the Jail authorities that the Court could not start any proceeding against the accused/applicant. It would have been most appreciable if the court had taken very serious possible action permitted by law against the Jail authorities on account of ignoring the orders of the Court under their routine pretexts that they had no escort and prison van . Such pretext could be believed true for the one or two hearings, but its continuation for more than 9 dates was sufficient to presume that the Jail authorities were telling lies.

4.The prosecution stories as narrated by the complainants in all the three bail applications can be summarised an under:-

Bail Application No. 765/1994.

(a)This application is related to a case arising out of an FIR No.214/1993 registered at P.S. North Nazimabad on 19.6.1993 lodged by Syed Tahir Sajjad who stated that at about 1600 hours (day time) he was sleeping In Us house along with hit family members when three persons, all armed with pistols entered his house. They confined the members of the family in a room and after taking the keys from his son Sajjad robbed the house by taking away valuable articles. The details of those articles as well as the descriptions of the accused persons has been mentioned in detail as stated by. The complainant in the FIR. The complainant also stated that the accused can be identified by his son Muhammad Sajjad, driver Syed Kamal and his Cook Shafiq too. Bail Application No.766/1994.

(a)This application is related to a case arising out of an FIR No315/1993 registered at P.S. North Nasimabad on 23.9.1993 lodged by Haji Ferozuddin who stated that he, along with his son Dr. Nisar and nephew Muhammad Asmir, was present in his house on 23.9.1993 when at about 1220 hours (day time) four persons armed with weapons entered into his house and after threatening them to remain silent, broloe open almirah and robbed the house by taking away valuable articles. Descriptions of the accused persons has been mentioned in detail by the complainant with this claim that the accused could be identified by the family members. The articles taken away by the accused persons were consisting of gold ornaments, prize bonds and cash but the detail was stated to be submitted later-on.

Criminal Bail Application No. 767/1994.

(b)This application is related to a case arising out of an FIR No.232/1993 registered at P.S North Nazimabad on 8.7.1990 lodged by Muhammad Sikandaf Ali who stated that about 1415 hours (day time), when he reached his house be found Haroof Ali and his brother-in-law Asif Malik standi at the gate of his house. They informed that dacoity was committed in his house and the whole house had been robbed. The complainant entered his house and found his were, sisters and sisters- in- law weeping. They informed that an about 1300 hours, when they were taking meal in the draw room, four armed persons armed with pistols or revolver climbed over the walls of the bungalow. One of them kept the family members silant on the point of his weapon and the remaining three collected all the valuable articles of the house. The detail of the robbed articles as well descriptions of accused was described in detail in the FIR.

It is thus evident from the FIRs that all the incidents took place during day time in similar manner. The descriptions of accused persons is quite similar. The incidents took place in the same area i.e. Within the jurisdiction of North Nazimabad Police Station successively in the months of June, July and then in September 1994. The present accused/applicant, after his arrest, was shown accused in all the three heinous crimes detailed above.

5.The learned counsel argued all the three ball application of the accused mainly on the following grounds:

(i)Two co-accused namely Nisam Shafi alias Sohail, Obaidullah alias Irfan were granted bail by this Court As the case of the applicant is on better footing, hence 1u is also entitled to be released on bail.

(ii)The allegations of abscondence against the accused is totally baseless because he never absconded during his custody.

(i.e) Even if it is presumed that the accused had absconded it does not deprive him. From being released on bail because abscondence is not a ground to refuse bail in each and every case. Besides the above-mentioned submissions, the learned counsel for the applicant tried to give a political cover to the cases of the applicant by stating in the applications that:

"It appears that on some political pressure, the applicant was implicated".

6.Before taking the main grounds urged by the learned counsel, I would like to deal with the last contention relating scalled alleged political pressure. It must not be out of memory of the learned counsel that there was no politically sound established government in Pakistan from the month of June 1993 till September 93 during which the incidents of dacoity took place and the applicant was alleged to be involved in these cases. It-is important to note that the complainant Haji Farosuddin had identified the photographs of the applicant as one of the robbers at the time of lodging FIR in the month of September 1994 when the country was being ruled by an imported Prime Minister namely Mr Naeem Qureshi. Under such circumstances only those people can take such stand who have no knowledge of political history. Even otherwise such political worker blamed with such allegations cannot be embraced by any political party unless such party or organization believes in terrorism. Hence painting the character picture of such accused with political colours by an advocate of such experience cannot be appreciated by the Court. If the accused is personally known to the learned counsel, as one. Of the activists of any organization, then such person can get benefit when such organization shares powers with some undemocratic government for establishing dictatorship with. Such workers. On account of these reasons, I have no reason to believe that the political plea taken by the learned counsel has any round footing.

7.Apparently weighty averments advanced by the learned counsel for the applicant in support of his other grounds proved feeble when weighed in the balance of admitted realities. On 12.9.94 when the present application were fixed for hearing, the learned counsel had alleged that the police had misappropriated the property owned by the accused after the same was taken away from his house U/S 550 CrP. C. Hence an impression Was given to me that the police robbed the house of ^citizen by levelling false allegations against the applicant to treat him a dacoit. Nothing was mentioned by the learned counsel on that day about the abscondence of the accused from police custody. On 13.9.1994, when the I.O. Of the cases, Inspector Malik Rab Nawaz, disclosed that the applicant had absconded on 1.12.1993 along with co-accused Raees and was re-arrested after about seven months, it was only than that the learned counsel stated that the had mentioned this fact in the bail application. The perusal of the applications brought into light only the following three lines:

That although the applicant was falsely shown to have absconded but even then he has already been admitted to bail in that case".

Except these three lines, on other detail was given about the abscondence of the applicant in any of the bail application. However, the order of the Court, as mentioned in the above quoted lines, was not brought on record, if the applicant was granted bail by any Court in that case. In spite of such way of arguments advanced by the learned counsel by not disclosing the feat of (Abscondence in such detail, I would not like to discuss the details of the cases because it may damage the case of the prosecution or of the applicant at bail stage to prejudice the cause of justice. However, even the tentative assessment of the cases is also not possible to be determined in vacuum unless the submissions made by the learned counsel are taken into consideration. The fact of abscondence is reflected from by the record available before this Court with the following back-ground.

(a)After the arrest of the applicant along with three .Other accused namely Nizam Shafi alies Sohail, Obaidullah alias Irfan and Raees, bail applications were moved before the trial court in all the three cases but the same were rejected in' November 1993. After this rejection, the applicant and co-accused Raees absconded on 1.12.1993 when they were brought from the Central Prison to City Courts. On account of their abscondence, Si. Muhammad Sharif, In charge Lockup City Courts lodged an FIR No.184/93 on the same day at Risala Police Station U/S 224, 225,225-A PPC and two police constables, Syed Zahoorul Hassan and Ikramullah were arrested and challaned. The record produced by the Jail authorities also confirmed the reality of abscondence. In spite of these facts on record, the learned counsel for the applicant states that the applicant/accused never absconded and the story of abscondence is a concocted story. If it had been so the learned counsel would not have mentioned in the present applications in the three quoted lines that "be has already been admitted to bail in that case.

(b)After rejections of the application in November co-accused Syed Nizam Shafi alias Sohail moved bail application No.45/1994 before the High Court of Sindh and bail was gra ed to him on 6.2.1994 on the point that no property was secured at his instance. After his release, another co- accused Obaidullah alias Irfan approached the High Court with his bail application No.189/1994 on the same grounds and the High Court granted him bail to on 63.1994, If the applicant and co- accused had not absconded on 1.12.1993, they would have certainly moved their bail application before the High Court after the release order of preaccused Nizam Shafi and of Obaidullah on 63.1994 and 63.1994 respectively. Hence it can be presumed with certainty that the applicant and co-accused Raees were not in custody at that time and the allegation of abscondence seems to be based on truth. It is notable that the police constables were arrested and challaned on account of the abscondence of the applicant and the co-accused Raees who is still at large. If the applicant had not absconded, then it could be claimed by the learned counsel that accused Raees has also not absconded, but the learned counsel did not like to touch the question of abscondence of co-accused Rees.

According to the prosecution the applicant was arrested on 11.7.1994 and fresh (2nd) bail applications were moved on/about 16.8.1994 Le. After about one month of his arrest, in all the three cases. Copy of one of the application moved before the trial court is on the record which shows that the facts of abscondence and its denial was not mentioned therein. But the order of rejection passed by the trial court shows that the learned A. Pi>. Had vehemently opposed the said bail application by disclosing the details of abscondence of the applicant and the learned 1st Additional Sessions Judge rejected the bail application after, mentioning this important, aspect of the case regarding the conduct of the accused. Perhaps it was the reason that the fact of abscondence was given in the bail application moved before the High Court, but without any detail.

In the light of all these facts, which remained unrebutted on the face of the record, it was astonishing for me to hear from the learned counsel that the accused had never absconded. Lodging of the FIR in Risala Police Station, arrest of the Police constables submission of challan against those constable, confirmation of abscondence from Jail record, avoiding to move applications for bail before the High Court after the release of two co-accused (If the applicant had not absconded), abscondence of co-accused Raees till date etc; are the pieces of evidence about the abscondence of the applicant and the learned counsel for the application was unable to shatter any of the same.

The learned counsel, then changed his stand and urged that the bail was granted to the applicant in that case and moreover an accused cannot be deprived of the right of bail on the ground of abscondence. No doubt an absconding accused may not be refused bail in certain circumstances. For example if an accused remains absent in any case from the very first day of an incident and after his arrest he establishes that he had no knowledge about the case Or he had knowledge but it was beyond his control to appear before the court as he was under arrest in any other case or was out of country or was under preventive detention or there were other reasons on the basis of which he could not considered absconder, then such accused must not be refused bail due to the so- called abscondence. Similarly the principle of "refusing bail to the abscondence" may not be applied strictly in the case of all those persons who are mentioned in the first proviso of Section 497(1) Cr.P.C. Even if the case of an accused is such that there are not reasonable grounds to believe that the accused has committed the non-bailable offence and there are sufficient grounds for further inquiry into his guilt, then in such case the principle of abscondence should not applied strictly to refuse bail to an accused because bail becomes a right of an accused U/S 497(2) Cr.P.C, in such circumstances. But the case of the present applicant is dark on this point. He was already in custody of the police. His bail application had been rejected. He was re-arrested after about 7 months. The co-accused Raees, who absconded with him, is still at large. The other two co- accused, who were granted bail also absconded after their release. If is now settled law that noticeable abscondence of a person dis-entitles the person to concession of bail notwithstanding the merits of the case because a fugitive from law and courts loses some of the normal rights granted by the procedural or substantive law. Reference, in this context, can be made to a series of cases reported in PLJ 1979. S.C. 344, PLJ 1981 S.C. 171, PU 1981 S.C. 183, PLD 1981 S.C. 93,1983 S.C.M.R. 978, PU 1985 S.C. 191, PU 1985 S.C. 243, 1985 SCM R 382, 1985 SCM R 1166, 1991 SCM R 322.

9.The next contention of the learned advocate for the applicant is that the co-accused was granted bail by the High Court, therefore, the present applicant is also entitled to the concession of bail because his case is on better footing than the cases of Nizam Shafi and Obaidullah. I have no doubt in my mind that the contention of the learned counsel is totally misconceived. No doubt the bail was granted to the two co-accused but they had not absconded at that time. They disappeared after they were released while the present applicant had approached the trial court as well as the High Court after committing the offence of abscondence especially from police custody due to which the police constables were booked to face trial. Similarly the names of those two co-accused were not mentioned in the FIR while the complainant Haji Ferozuddin had identified the photograph of the present applicant at the time of lodging FIR No.315/93 on 23.9.1993 by saying [Urdu text] Besides the above pieces of evidence the alleged stolen property was recovered from the house of the applicant while the order passed by the High Court clearly mentions that no case property was recovered at the instance of these co-accused who were granted bail by the High Court. Even otherwise the acquittal of any co-accused cannot be a ground to grant bail to the other co- accused because the case of each accused has to be judged on the merits of evidence collected against each accused.

10.Lastly, the learned counsel has stressed that no case was fixed before any court on 1.12.1993, hence it cannot be presumed that the applicant was brought from the Central Prison Karachi to the City Court on that date. I think that the learned counsel being an ex-Sessions Judge, is fully aware of the reality that, on account of corruption prevailing in different corners of our judicial systems, several accused are brought to the City Courts daily without hearing of their cases while large number of poor accused are not produced in the court inspire of the orders of there production which are sent by the Court to the Jail authorities. The stand taken by the learned counsel is sufficient to expose the Jail authorities. Because if the accused absconded on 1.12.1993, as claimed by the Jail authorities, although he was not required to be produced in any Court, as claimed by the learned counsel, then there remains no doubt in any mind that the accused absconded on that day in connivance with the Jail authorities. On account of the allegations levelled by the learned counsel, I have been left with no other alternative but to order the D J.G. Prison to hold inquiry on this issue and submit his report on or before 15th of November 1994 before this Court without fad. The copy of this order be sent to the D.I.G. Prison for this purpose.

11.In presence of the reasons listed above and keeping in view all the facts and circumstances, the request of the applicant for releasing him on bail cannot be acceded to with the result that the bail is refused to him in all the three cases.