[Sections 87, 88,89, Cr.P.C. And 172, 216, PPC]
S. 497(5)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Application for cancellation of bail---FIR was lodged on the same day within twenty-five (25) minutes of the incident which, minimized the chances of false implication---Both the accused persons had been specifically named in the FIR and assigned specific roles---Complainant, who was the mother of the deceased, claimed to be the eye-witness of the incident, and there hardly appeared any reason to disbelieve her---Medical report fully supported the version of the complainant---Accused persons remained absconders for almost 15 months after the incident, and no plausible reason was advanced to justify their abscondence ---Sufficient material was available on record which prima facie, connected the accused persons with the commission of offence---Bail granted to accused persons was recalled in circumstances. 2018 SCMR 28
S. 302(b)---Qatl-e-amd---Appraisal of evidence---Complainant was fully supported by the injured witness, whose presence on the spot could not be doubted because of injuries on his person---None of the said two witnesses had any enmity with the accused to falsely charge him in the case, where five persons had been killed---Accused was named in the F.I.R. to be armed with a hatchet and he had caused a hatchet blow to the deceased on the left side of his shoulder---Medical evidence had corroborated the ocular testimony---abscondence of accused for more than one year had further corroborated the eye-witness account---Prosecution had brought home the charges against the accused, whose sentence of death had already been converted into imprisonment for life by the High Court---Appeal of accused was dismissed in circumstances. 2011 SCMR 925 SUPREME-COURT
S. 302(b)---Qatl-e-amd---Appraisal of evidence---Incident had occurred in daylight---F.I.R. had been lodged without unnecessary delay---Accused was specifically named in F.I.R.---Ocular evidence was consistent qua the role of accused, time of occurrence, motive and the manner of attack had Inspired confidence---abscondence of accused for about four and a half years had also corroborated his guilt---Concurrent findings of the courts below being in accord with the prosecution evidence did not call for interference---Appeal was dismissed in circumstances. 2011 SCMR 171 SUPREME-COURT
Abscond meaning. Abscond does not necessarily imply change of place. Its ordinary sense is to hide oneself and it matters not if a person goes away or remains in a place, if he conceals himself. In either case he is said to abscond. AIR 1943 Oud. 325. Forbes v. Emp. 4 Mad. 393. Sirinivas.
Relevancy. If after a crime a person named as a participant absconds, his conduct shows that he is indeed concerned in the crime. Therefore, anything which tends to explain his conduct and furnishes a motive other than a guilty conscience is relevant u/S. 9 of Evidence Act. 62 IC 545. Ganga Ram v. Emp.Abscondance value. The value of Abscondance depends on facts of each case although it is ordinarily admitted as an evidence of guilt of the accused. PLD 1978 SC 1. Allah Dad.
Abscondance can be considered when there is substantial evidence of unimpeachable character or strong circumstantial evidence to connect the accused with the offence. PLJ 1997 Cr.C. (Pesh.) 592 (D.B.) Abdul Rahim.
Abscondance considerations. Antecedents of absconder, his occupational habits and limitations, period of Abscondance, specific explanation for it; all such factors are to be considered in juxtaposition with other evidence on record. 1980 SCMR 474. Ali Khan.
Abscondance, Distinction. There is distinction between a case in which accused absconds immediately after the commission of the offence and a case in which he absconds at the stage of arguments in the trial Court. Former being in close proximity with the commission of the offence and carry more evidentiary value as compared with the latter. 1992 SCMR 1983, Ch. Muhammad Yaqub.
Abscondance of no avail when young inexperienced men make themselves scarce on finding themselves being named for murder, when there is no other evidence with prosecution. PLD 1980 SC 201. Farman Ali.
Abscondance is of no avail to the prosecution against the accused in the absence of any other evidence against him. 1995 SCMR 1632, Muhammad Sadiq. Injuries could be caused by one person as size of injuries deposed. Eye-witness-account contradictory and improvements made qua motive. Mere Abscondance in circumstances of no avail. Conviction set aside. PLJ 1980 SC 377. Farman Ali etc.
Not conclusive. Abscondance of the accused can equally be consistent with the guilt or innocence of the accused. (DB) 1976 P.Cr.LJ 243. Mangio.
Abscondance equally consistent with innocence and guilt. Different persons are differently constituted and some accused persons though innocent, deliberately abscond rather than face the ordeal of a criminal trial. PLJ 1976 SC 283. Ameen Ullah.
Conviction on Abscondance alone cannot be sustained when other evidence against the accused is not worthy of credence. 1992 SCMR 814, Muhammad Arshad etc. v. Qasim Ali etc. 1985 SCMR 2070 Pir Badshah; 1981 SCMR 182, Amir Gul; .
Abscondance per se is no proof of the guilt. It is only a suspicious circumstance against the accused. Suspicions after all are suspicions. PLJ 1995 S.C. 477. Rasool Muhammad v. Asal Muhammad etc. = 1995 SCMR 1373.
Mere Abscondance is of no avail. It may be equally consistent with the innocence or guilt of the accused. (DB) NLR 1984 Cr. 256 Hashmat Ali
Mere Abscondance of accused after commission of crime does not establish guilt of the accused beyond reasonable doubt. (SC) 1971 SCMR 256 Abdul Rauf v. The Crown (DB) PLD 1964 Pesh. 1. Hakim Gul.
Mere Abscondance. Relation between complainant and accused strained, mere Abscondance, in circumstances not of much significance for possibility of false implication by opposite party cannot be brushed aside. Also when no question put to the accused to explain Abscondance; Abscondance cannot be taken into consideration. (SC) 1969 P.Cr.L.J. 885. Muhammad Aslam and another.
Mere Abscondance is not sufficient for conviction when the retracted confession is belated by two weeks and is not consistent with the direct testimony against the accused. (DB) 1977 P.Cr.L.J. 942. Said Anwar.
Mere Abscondance. Mere Abscondance of the accused from the date of occurrence to the arrest does not amount to Abscondance. A person can legally be said to be absconding only after proclamation u/S. 87 or 88, Cr. PC is issued. (DB) PLD 1976 Lah. 1240 Rab Nawaz 1976 P.Cr.L.J. 1040.
Mere Abscondance does not corroborate prosecution version in all cases. PLJ 1984 SC 403. Nizam Khan.
Abscondance by itself is no evidence of involvement in the offence, but it can provide sufficient corroboration of ocular account. 1992 SCMR 1625, Habib-ur-Rehman.
Disappearance of person named as murderer is natural, whether named rightly or wrongly. (SC) PLD 1964 SC 26. Siraj Din v. Kala etc.
Abscondance, no adverse presumption. Innocent person named as accused in FIR may in first instance abscond to avoid arrest and police torture. Mere Abscondance does not raise adverse presumption in such circumstances. (DB) 1970 P.Cr.L.J. 751 Sultan (DB) PLD 1964 Pesh.1. Hakim Gul.
Abscondance, even if its explanation is ignored will not be sufficient corroboration when it is doubtful whether the eye-witnesses were present at the spot. PLJ 1992 S.C. 295, Ghulam Farid.
Abscondance alone not enough for conviction when sufficient evidence connecting the accused not forthcoming. (DB) 1974 P.Cr.L.J. 208 Abdus Sattar (DB) PLJ 1974 Cr. c. (Lah.) 247. Sardaran etc.
Acquittal cannot be changed into conviction just because the respondent who otherwise deserves acquittal has absconded. PLD 1981 SC 265 = 1981 SCMR 1. Hayat Bakhsh.
Abscondance and motive evidence alone is not sufficient to sustain conviction and capital charge. 1977 P.Cr.L.J. 581 Rashid.
Question of Abscondance neither put to the accused nor any evidence produced to prove it, held Abscondance cannot be used as a corroboration. PLJ 1990 FSC 80. Spin Bacah etc. Abscondance as corroboration. Abscondance of accused for about a month after murder, held, corroborates evidence of 2 eye-witnesses. (DB) PLJ 1974 Cr.C. (Pesh.) 582 Bashir.
Abscondance though by itself is not sufficient to convict an accused but it is a strong piece of corroborative evidence of ocular and circumstantial evidence where the accused remain fugitive from justice for a very long time without any plausible or reasonable explanation. Their conduct after the occurrence was indicative of their guilt. 1992 SCMR 1036, Mst. Roheeda v. Khan Bahadar etc. Also see 1992 SCMR 1597, Saiful Malook etc.
Abscondance as corroboration. Abscondance for 7 months after crime held to be sufficient corroboration of ocular evidence in murder case. (DB) PLJ 1975 Cr. C. (Lah.) 17 Khushi Muhammad.
Abscondance of accused is a corroborative circumstance. Four persons were convicted of offence--Benefit of doubt given to two accused but conviction of two maintained in appeal as they had absconded after the incident and this circumstance was considered sufficient corroboration of their participation in the assault. Contention that the conviction of the remaining two accused on the same evidence cannot be maintained. held not valid. PLD 1969 SC 89 Gul Hassan.
Abscondance for 4 years corroborates the guilt of the accused when there is no adequate explanation for Abscondance. (DB) NLR 1989 Cr. 480 Noor-ul-Haq. Long absence alone cannot form basis of conviction, it can be considered as a corroborative factor only. (DB) NLR 1995 Cr. 330 Mir Dad. Abscondance for a long time is a strong piece of corroborative evidence. 1992 SCMR 1036, Mst. Roheeda v. Khan Bahadur etc. Abscondance corroborates interested dying declaration. Conviction maintained. (DB) PLD 1967 Lah. 520 Muhammad Ashraf.
Abscondance is a corroborative piece of evidence. Explanation given by accused not supported by evidence, not accepted. (SC) 1976 SCMR 185. Muhammad Din. Abscondance as corroboration. Abscondance gives some kind of support to another evidence strong enough to sustain conviction, not however, effective by itself to remedy defects in evidence led to show absconding accused's participation in crime. (SC) 1971 SCMR 239 Masal and another v. Crown.
Abscondance of very limited evidentiary value unless it is for a long period, because of different reaction of different persons. Some may like to abscond rather than to face to the ordeal of criminal trial; secondly because of lack of confidence in investigation agencies. (SC) PLD 1978 SC 1. Allah Dad etc.
Abscondance a very weak corroboration. Abscondance can never by itself remedy defects in prosecution evidence. Blood feud existing between families of the parties; evidence of Abscondance in such circumstances is not sufficient to cure infirmities in the ocular evidence of prosecution. (SC) PLD 1976 SC 695 Machia. (DB) NLR 1982 Cr. 31 Yusaf = PLD 1981 Kar. 672.
When accused is not questioned about Abscondance in statement u/S. 342 Cr. P.C. the fact cannot be used as corroborative piece of evidence, against the accused. 1992 SCMR 1983, Ch. Muhammad Yaqub. Abscondance, no explanation given, no claim of surrendering before police, held, Abscondance a strong circumstance corroborating ocular evidence. PLJ 1982 SC 466. Sherin etc.
Abscondance of accused held to be a corroborative circumstance against him. (DB) PLD 1971 Pesh. 32 Nekam Gul etc. PLD 1969 SC 89 ref. (DB) PLD 1966 Pesh. 232 Khanan Khan and PLD 1964 Quetta 6 Rasul Bux. (SC) PLJ 1978 SC 41. Allah Dad.
Abscondance after murder and arrest of the accused from a distant place is held to be an important circumstance against the accused. (SC) 1970 SCMR 351 Muhammad Bashir. 1970 P.Cr.L.J. 739. Muhammad Bashir. Accused found already absconding in another previous murder case. Such Abscondance not a good corroborative evidence. (SC) 1972 SCMR 651. Sher Bahadur.
Accused absconded for four days and Abscondance not explained satisfactorily. Factor against accused. (DB) 1973 P.Cr.LJ 896 Beekho. Abscondance for 3 months only, cannot furnish corroboration of evidence of a single prosecution witness. 1980 SCMR 208. Liaqat Ali v. Masal Khan.
Absconder's case vis-a-vis the companion's case. The finding with regard to the nature of the offence in the previous case against the companions of the absconder has no relevancy in the latter case against the absconder himself. Seven of the companions of the absconder were convicted under section 325/149, P.P.C., whereas the absconder was convicted under section 302 and sentenced to transportation for life. (DB) PLD 1955 Lah. 679 Shah v. Crown.
Co-accused absconding. Co-accused on bail cannot be penalised on assumption of absconder being likely to be arrested only when accused on bail is arrested. 1979 SCMR 351. Mehr Din v. Nazar Hussain.
Absconder's appeal can be disposed of without hearing it on merits. Abscondance deprives the petitioner of the relief claimed. PLD 1981 SC 65 = 1981 SCMR 1. Hayat Bakhsh. Judgment in absconder's case. High Court Bench in disposing of absconder's appeal adopting reasoning of earlier bench which had heard and dismissed the appeal of the absconder's companions. The High Court had not applied their mind independently to the evidence recorded in the separate trial of the absconder. Case sent back to the High Court to be re-heard by another bench. (SC) PLD 1960 SC 18 Allah Ditta. Abscondance pending murder reference and appeal. There is no bar in the Cr.P.C. to the confirmation of the death sentence in the absence of the convict. Reference and appeal decided in the presence of the counsel of the absconder. (DB) PLD 1966 Pesh. 232 Khanan Khan etc. (DB) PLD 1957 Pesh. 75 Alawal Khan etc.
Abscondance during appeal in the Supreme Court. The Supreme Court acquitted all accused/appellants giving them benefit of doubt. Even the absconding appellant was given the benefit and acquitted. (SC) 1972 SCMR 194 Muhammad Aslam etc. Abscondance of appellant after filing petition for leave to appeal in the Supreme Court deprives him of the right of hearing by the Court without surrendering himself. However, in case of acquitted accused the appeal has to be disposed of on merits. 1981 SCMR 1, Hayat Bakhsh.
Abscondance after death sentence by High Court. Supreme Court refused to grant leave. Attorneys to see that fugitives in contempt obey Court's order. (SC) PLD 1956 FC 43 Chan Shah v. The Crown (SC) PLD 1969 SC 89 Gul Hassan and another. Recording of evidence in absence of absconder. Under section 512, Cr.P.C. evidence against the accused can only be recorded in his absence when it is proved on the record that the accused has absconded and there is no immediate prospect of arresting him however, a formal finding to the effect is not necessary. 27 P.Cr.L.J. 247 Daya Ram. 48 Cr.L.J. 74 Janu v. Emperor. Absconding to avoid service of summons etc. (Sec. 172, PPC) Refusal to accept notice, abusing the process-server and walking inside the house does not amount to absconding. 4 Mad. 393, Srinavasa Ayyangar. Absconding from warrant of arrest. Sec. 172, PPC does not apply. 50 All. 666. Sheo Jangal Prasad. Harbouring offender, knowing his escape or order of arrest. (Sec. 216, PPC) "knowing" is more than and different from "having reason to believe." Knowing implies a fact which can be shown. It means knowledge of something actual by means of authentic or authoritative information. It must be proved by legal evidence that an order for arrest of the person alleged to have been harboured was made and the accused knew of the order and harboured the person concerned with that knowledge. (PC) 71 IA 83 Eswaramurthi Goundan. Warrant of arrest must be issued and the issuing officer must be satisfied that the person wanted is absconding only then proceeding under section 87, 88, Cr.P.C. can be taken AIR 1943 Pat. 366, Bishandayal v. Emp. Sub-inspector could not find the accused is not enough. The Magistrate must be satisfied that the accused was absconding or concealing himself for the purpose of avoiding the service of warrant. 6 WR (Cal.) 73, Shewdyal; 19 WR (Cal.) 12 Ram Kishor v. Emp. Warrant issued and search made at different address from where the accused resided, held the accused not established to have been searched at his proper address. PLJ 1982 SC 592 Amin Ullah. Not an absconder. A person who petitions against the issuing of a warrant and applies to superior Courts to be allowed to remain on bail cannot be said to be absconding. 23 Cr.L J 454; Qamar Din v. Emp. AIR 1922 Lah. 475; AIR 1943 Oud. 325. 30 days time under section 87, Cr.P.C. is not to be counted from the date of issuing the proclamation but from the date of publishing such proclamation by doing all that is required under sub-section (2) of section 87. 19 W R 12 Ram Kishor v. Emp. 30 days limit for surrender is not always necessary. PLD 1962 Dac. 245 Abdur Rashid.
Proclamation invalid when accused directed to appear within less than 30 days of its publication, and subsequent attachment under section 88, Cr.P.C. also held to be invalid. Presumption under section 87 (3) cannot be raised in such a case. 48 Cr.LJ 624. Jagdev v. Emperor. Abscondance cannot be considered unless proceedings under sections 87 and 88, Cr.P.C. taken NLR 1987 Cr. 376. Ali Sher etc. (DB) PLJ 1987 Cr.C (Pesh.) 481. State v. Mumtaz etc. Proof of proclamation is no proof of warrant. Warrant must be proved by original or certified copy. AIR 1944 P.C. 54. K.R. Easwara Murthi Goundan. Invalid proceedings by magistrate under section 87, Cr.P.C. cannot be interfered with by the Magistrate but High Court in revision could consider legality of original proceedings and grant relief under section 89, Cr.P.C. AIR 1942 Lah. 214. Mst. Jawaiv. Emp. Proclamation under sections 87 and 88, Cr.P.C. not made, held Abscondance of accused of no avail to prosecution. PLJ 1987 Cr.C. (Pesh.) 481. State v. Mumtaz etc.
When proceedings u/ss. 87 and 88, Cr.P.C. not taken, it is settled law that the accused cannot be declared absconder. 1989 SCMR 1987. Khan Mir v. Amal Sherin etc. Application under section 89, Cr.P.C. made after 2 years. High Court has no jurisdiction to make an order for the restoration of property attached as the application is barred under section 89, Cr.P.C. 17 Cr.L.J. 414 Mala Singh. Proceeding under section 87, Cr.P.C. not necessary for presumption of guilt as absconder. (SC) PLD 1978 SC 102 Bacha Said. Accused not declared a proclaimed offender. Hence the accused cannot be said to be an absconder. 1981 SCMR 959. Fazal Muhammad v. Muzaffar Hussain etc. An accused cannot be declared a proclaimed offender under section 87, Cr.P.C. when he had left the country before the issuance of warrant against him as he cannot be said to be absconding or concealing himself in order to avoid the service of the summons or warrant. Therefore, the subsequent proceedings of attachment are illegal. AIR (29) 1942 Madras 289 Vellayappa Chettiar v. Allagappa Chattiar.
Attachment order recalled when proclamation u/Ss. 87 & 88 Cr.P.C. had not been done. 1998 SCMR 289, Mst. Ghulam Fatima v. State. Attachment of absconder's property under section 88, Cr.P.C. Only the interest of the absconder can be attached in ancestral land but on his death the land must go to his heirs. AIR 1925 Lah. 629, Shah Muhammad v. Emp. Process under sections 87 and 88 can be issued together if warrant of arrest already issued. PLD 1962 Dacca 245, Abdur Rashid. Defect in proclamation under section 87 is curable under section 537 if no prejudice is caused to the accused. Defect in order of attachment cannot be pressed into service by person claiming. His remedy lies under section 88 (6-A) or by civil suit within time given in section 88 (6-D) PLD 1984 Lah. 243, Shad Muhammad. Surrender of accused after proclamation under section 87/88, Cr.P.C. Presumption in favour of Abscondance; and Abscondance is sufficient corroboration of participation in crime. (SC) PLJ 1978 SC 41. Allah Dad etc. Abscondance after proclamation u/S. 87 or 88. Mere assertion by police is not enough. Prosecution must prove by positive evidence that the accused had absconded and proceeding u/S. 87 or 88, Cr.P.C. were taken against him. (DB) PLD 1976 Lah. 706. Rab Nawaz Contra. Proceedings u/S. 87, Cr.P.C. not necessary for presumption of guilt. (SC) PLD 1978 SC 102. Bacha Said. Abscondance: No evidence brought on record about it nor accused put any question at the trial about Abscondance. Held in absence of corroborative evidence unsafe to maintain conviction. 1984 SCMR 90. Alam Khan etc. Trial Court to conduct proceedings u/Ss. 87/88 Cr.P.C. afresh.
Proceedings u/Ss. 87/88 conducted by the Magistrate before sending the case to Sessions Court for trial, held, not enough. Trial Court to conduct proceedings afresh after completion of proceeding u/Ss. 87/88 Cr.P.C. PLJ 1997 Cr.C. (Lah.) 246, Zafar Ahmed. Court not to act in aid of fugitive from justice. Leave to appeal refused by Federal Court to person under sentence of death who had not surrendered himself to authorities. Duty of attorneys and counsel in such cases is to ensure that such fugitive in contempt conform to the orders of the Court (FC) PLD 1956 FC 43 Chan Shah v. Crown (SC) PLD 1969 SC 89 Gul Hassan etc. Fugitive from law and Courts loses some of normal rights granted by procedural and substantive law. PLJ 1985 SC 191. Awal Gul v. Zawar Khan etc. Fugitive from justice has no right to be heard in appeal from conviction. However in appeal from acquittal his case is to be decided on merits. PLJ 1982 SC 295 Allah Bakhsh. PLJ 1981 SC 183 = PLD 1981 SC 265 Hayat. NLR 1981 Cr. 64 Hayat Bakhsh etc. Fugitive from justice is not entitled to concession of leave to appeal. Delay not condoned. 1982 PSC 809 Ali Ahmad Sabri.
ABSCONDER'S APPEAL can be heard even without his surrender or apprehension, PLD 1981 SC 265 Referred. PLD 1991 SC 575. Zahid Iqbal. Fugitive from Law. Conviction from summary military Court cannot be challenged in writ by fugitive from law. (DB) NLR 1986 Cr. 972. Muhammad Ashraf v. Sindh. Absconder loses right to be heard and no bail can be granted to him. PLD 1985 SC 402. Awal Gul v. Zawar Khan.
Fugitive from justice after death sentence. High Court dismissed the appeal and directed office to fix the murder reference after the arrest of the absconding convict. (DB) NLR 1987 Cr. 456. Nawab Ali etc. PLD 1987 Kar. 250. sAbsconder not entitled to exemption under section 540-A, Cr.P.C. when he is proceeded against under sections 87 and 88, Cr.P.C. NLR 1987 Cr. 468. M. Saleem Babar.