Find a Lawyer

Criminal Miscellaneous No. 812/B of 1986, decided on 16th April, 1986.

‑‑‑S.497(5)‑‑Penal Code (XLV of 1860), Ss.302 & 307‑‑Bail, cancellation of‑‑Only two formal witnesses examined in one year's time and other prosecution witnesses returned unexamined on a number of occasions but because of delaying tactics adopted by accused petitioners‑ Petitioners absenting themselves on different pretexts and bent upon blocking trial of case‑‑Case of wanton abuse of concession of bail by petitioners established‑‑Bail already allowed cancelled by High Court in circumstances.

Kh. Haris Ahmad for Petitioner.

Mehr Ghulam Ali Mubashir for Respondents.

Muhammad Iqbal for the State.

Sardara petitioner has moved this petition for cancellation of bail allowed by this Court to Shera, Sikandar and Faiz respondents in a case registered against them and others under sections 148, 302 and 307/149/109 P.P.C. Their co‑accused Zulfiqar alias Zulfi and Muhammad Aslam have moved Criminal Misc. No.729‑B of 1986 for bail. They were admitted to bail by the Sessions Court but the same was later on cancelled. Then they again moved an application for bail but the same was dismissed by the learned Addl. Sessions Judge. Both these petitions are being disposed of by this order.

2. The grounds urged for the cancellation of bail are that the respondents have wantonly abused the concession of bail and are not allowing the trial to proceed. It is submitted that they absented themselves on various dates of hearing and adopted this device one after the other on false pretexts of illness, with the result that except two formal witnesses no other witness could be examined. The learned counsel for the respondents has half‑heartedly argued that the delay occurred partly due to the non‑availability of the counsel of the accused who had gone to America for treatment, therefore, no ground for cancellation of bail is made out.

3. A certified copy of the order‑sheet of the trial Court has been placed on the file which reveals a shocking state of affairs and clearly shows that Shera and Sikandar respondents and their co‑accused Zulfiqar and Muhammad Aslam (petitioners in Criminal Misc.No.729‑B of 1986) are bent upon thwarting the course of justice and are not allowing the trial to proceed by adopting delaying tactics. In this case the charge‑sheet was framed on 13‑4‑1985 but no witness could be examined till 1‑6‑1985 when the case was adjourned to 25‑6‑1985. The prosecution evidence was available on that date but it could not be recorded as Sher Muhammad alias Shera respondent did not appear. An application on his behalf was made that he is sick and has been admitted in Hadali Hospital. The case was adjourned to 6‑7‑1985 when a medical certificate, dated 27‑6‑1985 was produced to the effect that the said respondent was admitted in Rural Health Centre, Hadali, and was suffering from gastro enteritis. On 6‑7‑1985 Zulfiqar accused (petitioner in Cr.Misc. No.729‑B of 1986) did not appear while all other accused were present. His bail was cancelled and a notice was issued to the surety. The case was adjourned to 11‑7‑1985. Zulfiqar was not served for 11‑7‑1985 and the case was adjourned to 20‑7‑1985. He did not appear on that date and the case was adjourned to 18‑8‑1985. On this date Zulfiqar accused appeared after having obtained interim bail from the learned Sessions Judge vide order, dated 5‑8‑1985. The case was adjourned to 17‑9‑1985 for prosecution evidence. The prosecution witnesses were present but they could not be examined as Allah Bakhsh accused was reported to be under treatment in jail hospital and an application had also been made on behalf of counsel for Zulfiqar accused that he had gone to America for treatment. The case was adjourned to 5th October, 1985. On 5‑10‑1985 the prosecution witnesses were present. Allah Bakhsh accused was produced but Zulfiqar and Sultan accused stated that their counsel will be available in the last week of October and the case was adjourned to 28‑10‑1985. On that date they again made an application that their counsel had not returned and was expected back in the last week of November, upon which the case was adjourned to 27‑11‑1985 when again an application was made that the counsel had not returned after treatment and last opportunity was given to them to engage a new counsel. The case was adjourned to 2‑12‑1985. On that date Shera respondent and Sultan did not appear. About Sultan it was reported that he was lying ill in jail and an application was made on behalf of Shera that he was also ill. The case was adjourned to 14‑12‑1985 when Shera respondent produced a medical certificate, dated 1‑12‑1985 that he was suffering from flu. It does not contain any detail of the duration of the ailment. The case was then fixed for 14‑1‑1986 when again an application for adjournment was made on behalf of Sultan and Zulfiqar on the ground of illness of their Advocate. The prosecution evidence was in attendance. The learned Additional Sessions Judge observed that the charge was framed on 13‑4‑1985 but not a single witness could be examined merely for the reason that the accused had been absenting themselves one after the other. He, therefore, appointed Mr. Tasadduq Hussain Baloch, Advocate as counsel for Sultan and Zulfiqar at State expense. The case was adjourned to 28‑1‑1986 for prosecution evidence. The prosecution witnesses were bound down for that date. This date was given as the clerk of Syed Ehsan Qadir Shah, Advocate, had made a request that the said learned counsel will not be available prior to that. On 28‑1‑1986 Zulfiqar and Shera accused again absented themselves. The prosecution evidence was in attendance. Notices were issued to aforesaid accused and their sureties for 6‑2‑1986 as to why the surety bonds be not forfeited and the surety amount realized from them. Non‑bailable warrants of Shera and Zulfiqar were also issued. On 6‑2‑1986 Zulfiqar and Shera appeared and produced medical certificates. The certificate of Zulfiqar is to the effect that he was suffering from urinary problem and was getting treatment from 27‑1‑1986 to 30‑1‑1986 and that of Sher Muhammad alias Shera was to the effect that he was under treatment due to Ac. URTI. He was advised complete rest from 27‑1‑1986 to 30‑1‑1986. The case was adjourned to 13‑2‑1986. On this date Muhammad Aslam accused (petitioner in Cr.M.No.729‑B of 1986) failed to appear and the learned Addl. Sessions Judge observed that the accused are bent upon blocking the trial of this case. He issued non‑bailable warrants against Muhammad Aslam and adjourned the case to 20‑2‑1986. On this date he again did not appear. The learned Addl. Sessions Judge recorded the statement of constable who was entrusted with the warrant of arrest. He stated that Muhammad Aslam accused was intentionally avoiding service and had gone underground. Proceedings under sections 87 and 88 Cr.P.C. were initiated against him but when the order was being dictated he turned up and made an application that he could not appear on 13‑2‑1986 due to "renal colic pain". He also produced a certificate which was to the effect that he was suffering from acute renal colic pain and was advised complete rest for four days w.e.f. 12th February 1986. According to the certificate, the doctor had examined him in the house of one Nazir Muhammad. The learned Addl. Sessions Judge observed that this medical certificate was bogus. Muhammad Aslam accused was taken into custody. The case was adjourned to 25‑2‑1986. On this date statements of two formal witnesses were recorded who were cross‑examined by Mr. Khalid Hussain Shah, Advocate, who requested for adjournment for recording the remaining evidence in the presence of senior counsel who was not available on that date. The case was adjourned to 27‑2‑1986. On this date Sikandar respondent did not appear and the case was adjourned to 10‑3‑1986. Sikandar respondent produced a medical certificate to the effect that he was suffering from gastro enteritis and needed bed rest for three days w.e.f. 26th February, 1986. The case was adjourned to 20‑3‑1986 when Sher Muhammad alias Shera accused did not appear and non‑bailable warrants were issued against him and notice for proceedings under section 514 Cr. P. C. was also issued against the surety. Prosecution evidence was in attendance and the case was adjourned to 27‑3‑1986. These facts have been taken from the certified copies of the order‑sheet and the medical certificates. The order‑sheet for 27‑3‑1986 has not been filed. According to the learned counsel for the petitioner, the case was then adjourned to 3‑4‑1986. Certified copy of the order‑sheet, dated 3‑4‑1986 is on the file which shows that Shera respondent again did not appear. The case was then adjourned to 6‑4‑1986 but Shera respondent again did not appear. An application was, however, moved on his behalf that he was admitted in Civil Hospital, Miana Hazara, but no medical certificate was produced and the case was adjourned to 12‑4‑1986. On this date Shera accused appeared and the case was adjourned to 23‑4‑1986.

4. The facts detailed above are self‑explanatory and need no comments. It is a case of wanton abuse of the concession of bail by Shera and Sikandar respondents herein and ZuIfiqar and Muhammad Aslam petitioners in Cr. Misc. No.729‑B of 1986. The learned counsel for Zulfiqar and Muhammad Aslam submits that the learned Addl. Sessions Judge did not issue any notice to them before cancelling their bail. The learned counsel for the complainant, on the other hand, submits that aforesaid accused made their submissions before the learned Addl. Sessions Judge before they were taken into custody. He further submits that after the cancellation of bail they moved an application in which the learned Additional Sessions Judge gave them full hearing and rejected the same. The grounds for bail taken in Criminal Misc. No.729‑B of 1986 are that:‑---

(a) the bail should not have been cancelled without holding appropriate inquiry and without examining the doctors who issued the medical certificates;

(b) the petitioners voluntarily appeared before the trial Court and it was a relevant consideration for recalling the order whereby the bail was cancelled;

(c) no overt act has been attributed to the petitioners; and

(d) their absence was not intentional.

It will be noted that in the grounds taken in the petition it is nowhere stated that Zulfiqar and Muhammad Aslam petitioners were not heard before their bails were cancelled. Be that as it may, the order whereby the bails of these accused were cancelled, is not impugned in these proceedings. The case in hand is a petition for bail under section 497 Cr.P.C. Shera and Sikandar respondents and their co‑accused Zulfiqar and Muhammad Aslam have, by their most obnoxious conduct, disentitled themselves, to the concession of bail. In the circumstances, the bail allowed by this Court to Shera and Sikandar respondents is cancelled. They shall be arrested forthwith and sent to jail. There is no allegation of any misuse against Faiz, respondent No.3 and no ground for the cancellation of his bail is made out. He will continue to enjoy the concession but if at any subsequent stage he abuses the concession, it will be open to the learned Additional Sessions Judge to cancel his bail. Criminal Misc. No.729‑B of 1986 filed on behalf of Zulfiqar and Muhammad Aslam accused/ petitioners is dismissed.

In case Shera and Sikandar do not surrender or any other accused abuses the concession, the learned Addl. Sessions Judge shall have resort to sections 87, 88, 514 and 512 of the Criminal Procedure Code and make all possible efforts to dispose of the case at the earliest.

S. G. d./S‑10/L Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.