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Special Criminal Miscellaneous No.56 of 1986, decided on 12th August, 1986.

---S.497(5)--Bail, cancellation of--Accused allowed bail by. Special Judge (Customs) without affording State counsel ample opportunity to urge his viewpoint--State approaching High Court for cancellation of bail--Contention that State having failed in first instance to approach Trial Court for cancellation of bail granted to accused, application for cancellation of bail before High Court was incompetent--Contention, held, was correct and State advised to approach Trial Court.

The respondent was admitted to bail by the Incharge Special Judge (Customs) Karachi on 30-6-1986. The State being aggrieved against the said order has filed this application for cancellation of bail. The respondent was admitted to bail on medical ground. Learned counsel for the applicant has contended that he was not given any opportunity by the learned Court before passing the impugned order.

On an application dated 26-6-1986 moved on behalf of the respondent the case was anti-dated and fixed for hearing of bail application on 28-6-1986 when the counsel for the State appeared to oppose the bail application but the matter was adjourned to 29-6-1986. On 29-6-1986 the State Counsel requested for adjournment as he was not well and the matter was adjourned to 30-6-1986.

It is stated that Public Prosecutor was busy before the High Court on 30-6-1986 and therefore he could not appear or; that day and in his absence order has been passed on the basis on the Medical Certificate.

Learned counsel for the respondent has relied upon 1976 PCr.Ld 324; 1979 S C M R 289 and 1971 S C M R 6;3 7 in support of his contention that the applicant/State should have approached the tria' Court for cancellation of bail instead of moving High Court. The authorities support the contention of the learned counsel, but I have; observed that the learned Special Judge, who was only Incharge Special Judge has hurriedly disposed of the case when the case was fixed initially on 4-7-1986 and had not given ample opportunity to the State Counsel to urge his point of view.

Learned counsel for the applicant states that he would move the trial Court for cancellation of bail.

The application is dismissed with the aforesaid observation.

The State may move the trial Court for the cancellation of bail and also apply for the constitution of medical board for examination of accused.

S. G. D./S-42/K Application dismissed.

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