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(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 24th October 1967, in Criminal Miscellaneous No. 4488 of 1967).

, S. 497-Bail-Petition for cancellation-High Court directing accused to appear personally or through counsel but nonetheless on default of personal appearance cancelling bail under erroneous assumption-Supreme Court set aside order of cancellation and remanded case back to High Court for further consideration.

Shah Muhammad Malik, Advocate Supreme Court instructed by Ghulam Mujtaba, Attornev for Appellant.

S. M. Zubair, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.

Date of hearing: 26th February 1968.

-The facts giving rise to this appeal are as follows:

The appellant is being tried for offences falling within sections 406, 409, 420 read with section 109 of the Pakistan Penal Code, in the Court of a Magistrate at Jauharabad. The appellant was granted bail in this case on the 22nd September 1966, by an order of Mr. Justice Karam Elahi Chauhan of the West Pakistan High Court. Subsequently, on the 19th September 1967, the trial Magistrate purported to cancel his bail on certain grounds. This order was called in question by a petition for revision in the High Court and on the 25th September 1967, Mr. Justice Shamim Hussain Qadri admitted the petition and allowed interim bail to the petitioner. This petition is still pending in the High Court for disposal.

In the meantime, however, the complainant in the case applied for cancellation of the bail of the appellant, granted to him by Mr. Justice Chauhan. In that petition there was a reference made to the revision petition which had been the subject of an order by Mr. Justice Qadri. The petition for cancellation of bail came up for hearing before Mr. Justice Feroze Nana Ghulamally.

The learned Judge, apparently, assumed incorrectly that the order was directed solely against the grant of bail by Mr. Justice Chauhan. He did not advert to the fact that another petition was pending in the High Court against the cancellation of the bail by the Magistrate. The learned Judge further presumed, as it appears, incorrectly that the petitioner had been called upon to appear in the High Court personally. Mr. Shah Muhammad Malik has produced before us the notice issued to the appellant which clearly indicates that the High Court required his presence either in person or through Counsel. The learned Judge, therefore, apparently misdirected himself by assuming that the petitioner had committed a default in not appearing, in person, before the High Court. All the relevant facts not having been taken into consideration by Mr. Justice Feroze Nana, Mr. S. M. Zubair, on behalf of the State, found it difficult to sustain the order passed by him.

We allow this appeal, set aside the order passed by Mr. Justice Feroze Nana and send back the case to the High Court for further consideration. The petition for cancellation of bail, filed by the complainant, should now be heard along with Fakbar-i Alam's petition pending in the High Court against the order of the Magistrate cancelling his bail.

Appeal accepted.

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