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Criminal Appeal No. 68 of 1975, in Petition for Special Leave to Appeal No. K‑45 of 1975, decided on 19th December 1975.
(On appeal from an order of the High Court of Sind & Baluchistan made on 28.7‑1975, in Criminal Miscellaneous Application No. 222 of 1974).
---S. 498‑Bail, cancellation of‑Bail not cancelled on merits but for failure to appear before High Court‑Counsel for State submitting that appellants should have surrendered before High Court should they wish their case to be considered on merits‑Appellants directed to appear before High Court on an appointed date so that their case for grant or cancellation of bail could be considered on merits.‑[Bail].
M. H. Junejo, Senior Advocate and M. I. Memon, Advocate‑on‑Record for Appellants.
M. A Ghani, Assistant Advocate‑General (Sind) for the State.
Date of hearing : 19th December 1975,
After hearing the learned counsel for the parties, we have decided to convert this petition into an appeal and to dispose it of accordingly.
In connection with an F.I.R. registered on 5‑10‑73 regarding the murder of one Ali Bakhsh Junejo, the two appellants were granted pre‑arrest bail by the High Court by its order dated the 20th of November 1973. On the 8th of February 1974, an application was moved by the State for the cancella tion of bail, but the same could not be disposed of for a long time owing to the non‑appearance of the appellants. At last the High Court issued notices to the surety, and by an order made on the 28th of July 1975, can celled the bail previously allowed to the appellants, on the ground that they had absconded. It was also directed that non‑bailable warrants of arrest shall issue against them.
It is submitted by the learned counsel for the appellants that in fact incomplete addresses of the appellants were supplied by the State, with the result that the appellants were never served with the orders of the High Court in connection with the application for cancellation of bail. He submits that there has been never any question of the appellants absconding or willfully defaulting in appearance before the High Court, and it is for this reason that they are present today before this Court.
The learned Assistant Advocate General, Sind, submits that the appel lants should have surrendered be ore the High Court, if indeed they want their case to be considered on merits. We are in agreement with the submis sion made by the learned Assistant Advocate‑General, for we find that the appellants' bail has not been cancelled on merits, but because of their failure to appear before the High Court. We would accordingly accept this appeal to the extent that the order of the High Court dated the 28th of July 1975 is set aside, and the appellants are directed to appear before the High Court on 9‑1‑76, so that their case for the grant or cancellation of bail may be considered on merits.
In the meantime, the execution of the non‑bailable warrants of arrest issued against the appellants shall be held in abeyance, but the execution may proceed if the appellants do not appear before the High Court on the date specified.
Appeal partly accepted.
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