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Criminal Miscellaneous No. 3127/B of 1981, decided on 28th March, 1983

---S. 497(5)--Penal Code (XLV of 1860), Ss. 420, 467, 471 & 109- Cancellation of bail--Accused and co-accused with a common design to frustrate trial remaining absent on most of dates and no progress made in conduct of trial after submission of challan during period of two years--After framing of charge, during period of two years neither evidence of any witness could be recorded nor any other progress made due to absence of accused--Accused managing not to have service effected upon there in petition for cancellation of bail--Accused intimidating complainant and a case also registered against accused for doing so--Sureties of accused also misleading High Court and assisting accused in stemming progress of case before trial Court--One accused not traceable and his surety though given number of opportunities to procure attendance of accused, failing to do so--Explanation of other accused for his absence not found to be plausible--Accused abusing concession of bail and frustrating progress of trial--Continuance of concession of bail to accused in attending circumstances of case, held would be nothing short of giving premium to contumacious neglect of accused--Bail cancelled in circumstances.

---Ss. 497(5) & 476--Penal Code (XLV of 1860), Ss. 420, 467, 471 & 109--Cancellation of bail--Assistant Advocate-General in proceedings of cancellation of bail presenting an application under S. 476, Cr.P.C. against an Advocate (surety of one accused) for having filed an incorrect affidavit and making misstatement before High Court--Application. separately registered and notice issued to said Advocate concerned.

---S. 497(5)--Penal Code (XLV of 1860), Ss. 420, 471, 467 & 109- Accused not appearing before trial Court since more than two years- Accused leaving his residence, address of which has been given by him on surety bond and not intimating change of his address--Said accused deemed to have been served for purposes of cancellation of bail, in circumstances.

--Ss. 497(5) & 514--Penal Code (XLV of 1860), Ss. 420, 471, 467 & 109--Accused granted bail by High Court--Complainant moving petition for cancellation of bail--Accused not served being untraceable--Surety of said accused although given number of opportunities to procure attendance of accused but failing to do so--Said surety being unable to give any plausible explanation for not producing accused, trial Court before whom surety bond had been furnished, ordered to proceed against accused and his surety for forfeiture of bond in accordance with law.

Khalid Ranjha and Hasnat Ahmad for Petitioner.

M.R. Khokhar for Respondent No. 1.

Nemo for Respondent No. 2.

Tanvir Ahmed Khan, Asstt. A.-G. with A. Hamid for the State.

Mian Muhammad Ilyas for Surety Respondent No. 1.

S.M.K. Lodhi Surety for Respondent No. 2.

Date of hearing: 28th March, 1983.

This petition under section 497 (5) of the Code of Criminal Procedure seeks the cancellation of the bail allowed to respondents No. 1 and 2 by this Court by order, dated 28-2-1981 passed in Criminal Miscellaneous No. 91/B-81.

2. The facts necessary for the purposes of this petition, briefly stated, are that the petitioner is the complainant in a case registered against respondents No. 1 and 2 and the third co-accused, namely, Mst. Shamim Akhtar wife of petitioner No. 1 and sister of respondent No. 2, under section 420/467/471/109, P.P.C., vide F.I.R. No. 31, dated 30-9-1980, with Police Station Samanabad, Lahore. On an application by respondents Nos. 1 and 2 (Crl. Miscellaneous No. 91/B-81), they were allowed bail in the sum of Rs.2,00,000 with one surety in the like amount by order of this Court, dated 28-2-1981. The co-accused Mst. Shamim Akhtar has been granted bail by the Supreme Court. The challan has since been put up in the Court of Mr. Shaukat Javed Farooqi, Magistrate, Lahore. The present petition seeks cancellation of the bail allowed to respondents Nos. 1 and 2 by 'he aforesaid order.

3. The learned counsel for the petitioner contended that the challan of the case was put up in the Court on 18-2-1981, but no progress whatsoever has taken in the 'case and it is at the stage at which it was on the date the challan was submitted in Court. Elaborating his contention, the learned counsel submitted that the respondents with a common design to frustrate the trial are not appearing before the trial Court and are absenting one after the other. He submitted a synopsis of the order-sheet of the trial Court right from the date of submission of the challan till 12-3-1983 to establish that the respondents and the co-accused were absent on most of the dates and thus no progress could be made in the conduct of the trial.

4. The learned counsel next contended that not only that, the respondents also intimidated the petitioner /complainant and regarding one of such incidents the matter was reported to the police and a case has also been registered against the respondents vide F.I.R. No. 174 dated 15-6-1981. The learned counsel further contended that after the submission of challan on 18-2-1981 the case was adjourned by the trial Court to 21-2-1981 when copies of the statements recorded under section 161, Cr.P.C. were given to the respondents and the co-accused and the case adjourned to 4-3-1981 for framing of charge and that from 4-3-1981 till date neither the evidence of one witness could be recorded nor any other progress made, as the respondents/ accused absented from appearance. He also submitted that the conduct of avoidance /abuse of the process of Court is also evident from the fact that the respondents managed not to have service effected upon them in the present petition as well though it is pending since November, 1981.

5. The learned counsel lastly submitted that bail is a concession allowed to the accused and in case the concession is abused, as is being done by the respondents in the present case, the same is liable to be forthwith withdrawn, so that the law could have its course.

6. Mr. Tanveer Ahmad Khan, the learned Assistant Advocate -General, adopted the arguments advanced by the learned counsel for the petitioner and submitted that the present is a fit case for cancellation of the bail as the respondents have grossly abused the concession allowed to them. He further submitted that not only the accused but their sureties also have been misleading this Court and assisting the accused in stemming the progress of the case before the trial Court.

7. The learned counsel for respondent No. 1 could only submit that the said respondent had not been appearing before the trial Court as he was informed by Mr. S.M.K. Lodhi, who is surety-of respondent No. 2 and who had filed a quashment petition on behalf of the accused- respondents that the respondents need not appear before the trial Court as the proceedings against the accused have been quashed.

8. Respondent No. 2 has not appeared. The notices issued to him in the present petition have been returned by the police with the remarks that he could not be served as he has left his place of residence which was given by him in his surety bond and that he is not traceable anywhere. The surety of respondent No. 2 Mr. S.M.K. Lodhi, Advocate, had been given the opportunity on a number of dates to procure attendance of respondent No. 2 for whom he had stood surety. He himself had been avoiding to appear in this case on a number of occasions. He is present today but has not produced the said respondent No. 2 and is unable to give any plausible explanation for not producing him.

9. The learned Assistant Advocate-General has today presented an application under section 476, Cr.P.C. against Mr. S.M.K. Lodhi, Advocate, for having filed an incorrect affidavit and for having made misstatements before this Court. That application has been separately registered and notice issued to the respondent therein.

10. From the synopsis of the order-sheet submitted by the learned counsel for the petitioner, it is apparent that respondent No. 2 has not appeared before the trial Court since 21-2-1981. He having left his residence, the address of which has been given by him on the surety bond, and having not intimated the change of his address, shall be deemed to have been served.

11. Having considered the controversy, I find that the contentions raised on behalf of the petitioner have force. Those are well supported by the record of the trial Court as also by the conduct of the respondents in avoiding to appear in the proceedings of the present petition. They having abused the concession of bail and having frustrated the progress of the trial before the Court below have obviously rendered themselves liable to be proceeded against under section 497(5) of the Code of Criminal Procedure. The continuance of the concession of bail to the accused-respondents, in the attendant circumstances of the case, will be nothing short of giving premium to the contumacious neglect of the respondents.

12. In view of the foregoing discussion, accepting this petition, I cancel the bail allowed by me to respondents Nos. 1 and 2.

13. Since the surety for respondent No. 2 has failed to produce the said respondent, the learned trial Court before whom the surety bond has been furnished shall proceed against respondent No. 2 and his surety for forfeiture of the bond in accordance with law. This petition is disposed of in terms of the above order.

H. A. K. Bail cancelled.

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