P L D 1996 Karachi 360 (PLP)

The following statement of facts would suffice to dispose of this application in hand moved under section 439, Cr.P.C on behalf of applicant Ali Dost.

2. The applicant is facing trial, alongwith two other accused, in the Court of learned Additional Sessions Judge, Thatta under sections 302, 307, 324, 34, P.P.C. which is the outcome of Crime No.31 of 1987 registered at P.S Mirpur Khas. He was granted bail on 8‑9‑1990. The learned Judge cancelled his bail and demanded him to custody vide his order, dated 28th day of April, 1994. An application for restoration of his bail was moved on 3‑5‑1994 but the said application was dismissed on 15‑5‑1994, hence the present revision application. The operative parts of the impugned orders dated 28‑4‑1994 and 15‑5‑1994 radiate that the learned trial Judge cancelled bail of the applicant by observing that he was using delaying tactics to prolong the proceedings. The operative par of the order dated 28‑4‑1994 reads as under‑ "On 18‑1‑1994 Mr. Noor Nabi Memon, Advocate of Hyderabad filed his power on behalf of all the accused and sought adjournment and thereafter he did not attend the case till 9‑4‑1994 when the accused filed their joint explanation to the notice issued against them for the recalling of bail concession given to them and they misused the same which is evident from the case diary. Today two P.Ws. are in attendance as before and they cannot be examined in absence of defence counsel. Even no application is received from Mr. Noor Nabi, Advocate for adjournment. It is 1‑15 p.m. At this stage Mr. Lakhano, Advocate has filed power of attorney for accused Natho only and made adjournment application requesting therein that accused Natho be excused as he is not on fault. Under the above stated circumstances present P.Ws. cannot be examined in absence of defence counsel of accused Ali Dost and Juman. Accused Juman is in custody for want of surety, 1, cancel the bail of accused Ali Dost as he is in habit of misusing the bail concession and remanded to custody. " The operative part of the order dated 15‑5‑1994 reads as under:‑‑ "I have heard the arguments of Mr. Noor Nabi Memon, Advocate for accused and A. P.P for the State. Latter has opposed the application and stated that the application filed by accused in Court is not maintainable under the law as no sufficient reason is shown for the recalling of order dated 28‑4‑1994. After considering the grounds advanced by both counsel I have come to, the conclusion that it will be proper to dispose of this application after the examination of witnesses who were in attendance on 28‑4‑1994 as before and were left unexamined. "

3. Thus, nothing is evident from the order dated '15‑5‑1994 to show:‑‑ (i) What grounds were advanced by the learned Advocate for the applicant to justify his absence from the case on 28‑4‑1994 when bail of applicant was cancelled? (ii) What provision of law was referred by the learned counsel for the State to treat application for restoration of bail as not maintainable? (iii) What were the grounds and provisions of law in the eyes of the trial Court to reach this conclusion that application for restoration of bail be kept pending till examination of P.Ws.?

4. Unfortunately the trend of passing such slipshod orders is increasing alarmingly ‑and it has laid down the foundation of injustice in most of the subordinate Courts. On account of these defects in the impugned order dated 15‑5‑1994, this Court was left with no other alternative, but to rely upon the, facts as narrated in the revision application in hand which unfold that Mr. Aftab Akhund, Advocate was representing all the accused before he was appointed as Advocate‑General, Sindh. Mr. Noor Nabi G. Memon appeared on the scene on 18‑1‑1994 as the newly engaged Advocate for the accused persons. If these dates are kept in view then it become evident that the learned trial Court had failed to dispose of this matter during the. next seven years which principal had started from the review of its institution in 1987 and ended when the new Advocate was engaged in 1994. The Court appears to have become active after 18‑1‑1994 and remanded the applicant to prison within the expiry of 3‑1/2 months after his new Advocate was engaged and who had failed to appear before the trial Court on 29‑4‑1994.

5. Notwithstanding this bitter reality, as rediated in the above lines regarding conduct of the trial Court with reference to the proceedings in the past i.e. before 18‑1‑1994 as compared to the proceedings after that date, I would like to discuss only the important point of law involved in this revision application in hand which requires this Court to answer this question as to whether bail granted to an accused be cancelled if his Advocate is found absent on the date of hearing to examine prosecution witnesses. My answer to this question is in negative and my reasoning for holding so are as follows:‑‑ The word 'bail' has neither been defined in section 4 of Cr.P.C nor in Chapter XXIX of 'the Code of Criminal Procedure. Hence it has to be construed and applied in its general sense. In grammar it possesses the nature of verb as well as noun. In its‑verbal form the word "bail" means to set an accused person free on bail on by giving bail while. the word "bail", in its nature of noun, means the person or persons who procure the release of a prisoner from custody by becoming surety for his appearance in Court. It also means money or credit deposited with the Court to get an arrested person temporarily released on the assurance that he will come back for trial etc. at the proper time. The object of bail in criminal cases, as mentioned in Black's Law Dictionary, is to secure appearance of a principal before the Court when his presence is needed. In this regard it may not be out of place to refer the case of Crown v. Khushi Muhammad PLD 1953 FC 170 where the Hon'ble Federal Court had observed that‑ "The basic conception of the word 'bail' is release of a person from the custody of police and delivery in the hands of sureties, who under take to produce him in Court whenever required to do so. This is the meaning which has been given to the word ‑bail' in Standard English Dictionaries as well as in Wharton's Law Laxicon and Stroud's Judicial Dictionary. This is also borne out by the form of bond and bail bond given in Schedule V of the Cr.P.C ‑ ‑ This sense of bail was fully embodied in section 499 which requires that s released on bail or released on his own bond, a bond for before any person such sum of money 'as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be.

6. It is important to point out that grant of bail to an arrested accused can be a concession under section 497(l), Cr.P.C. or under the 1st proviso to section 497(l), Cr.P.C but in certain cases it becomes a right such as under subsection (2) or under the third proviso subject to the fourth proviso to subsection (1) of section 497, Cr.P.C. Whether bail is granted as a concession to an accused or as a right of an accused it can be cancelled under section 497(5), Cr. P.C. if impediment is observed in the course of justice as a result of an act or conduct of the accused but in the present case the learned trial Court cancelled the bail of applicant under an impression that applicant was using delaying tactics to prolong the proceeding while a bare perusal of the impugned order speaks otherwise particularly when he remained present in the Court on the dates of hearing. Unfortunately the learned trial Court showed nothing in its order to justify the delay of seven (7) years prior to the appearance of new advocate on the scene of proceedings during which period it failed to bring this case to an end. This Court was found hesitant to proceed with the matter soon after Mr. Aftab Akhund, Advocate, was appointed as Advocate‑General of Sindh and Mr. Noor Nabi G. Memon, Advocate started representing the accused/applicant. Undoubtedly the learned trial Court has right to accelerate the proceedings at any time, may be after several years as in the present case, if it had not done so in the past and it is also correct that the Court is not supposed to grant 7 years more to the new advocate, even on his demand on the strength of the Court's conduct with the previous advocate, but at the same time the reality must be admitted by the Court that it cannot penalize an accused for any fault of his Advocate, as was done in this case, unless it had reached a conclusion that the applicant/accused was responsible to stop his Advocate from appearing in the Court. No civilized law permits any Court to act according to this Urdu Idiom that means "mustached be punished for the act of bearded."

7. It is noticeable that cancellation of bail means curtailment of liberty .The right of liberty cannot be assassinated unless ‑the person concerned is provided meaningful and reasonable opportunity to explain why the bail granted to him be not cancelled on account of his some fault and provided he fails to satisfy the Court regarding that fault. It is also necessary to point out that Courts are not supposed to pass slipshod orders to curtail liberty of an accused by cancelling his bail. If any Court, after hearing an accused, reaches a conclusion that bail granted to the accused be cancelled then order of the Court must be well‑reasoned, full of logic and justification besides being devoid of speculations and presumptions. I have no hesitation to hold that the impugned order of the trial Court appears to be based on presumptions only and, therefore, it is liable to be set aside on this score alone.

8. Another point, in the present revision, is also of some importance. The learned counsel for the applicant had explained the reasons of his absence on the date of hearing in his application for restoration of bail by stating therein that his young daughter had stuck with severe abdomen pain on the preceding night of 28‑4‑1994. His office clerk had recently expired due to heart attack. He could not inform the Court about his inability to appear in the Court on that date on account of the circumstances which were beyond his control. The learned Additional Sessions Judge, while passing an order on 15‑5‑1994, did not like to touch any of the grounds for his absence as were mentioned in the said application. In case the learned trial Court had any doubt about the correctness of averments made in the said application, it could hold inquiry and refer the case of the learned Advocate to Pakistan Bat Council under Legal Practitioners and Bar Councils Act, 1973 provided the inquiry had revealed anything wrong. And if the Court had no doubt about the correctness of the contents of the application then it was not justified to keep such an application pending at the cost of liberty of an accused under any conditions, whatsoever it may be, as was done in the present case where disposal of the application was conditioned subject to examination of prosecution witnesses.

9. I have, therefore, no hesitation to hold that the impugned orders dated 28‑4‑1994 and 15‑5‑1994 were passed in complete disregard of the provisions of law on both the scores as discussed in the preceding paragraphs. Resultantly this Revision Application merits allowance and the same is accordingly allowed by setting aside the impugned orders.

10. By a short order dated 31‑8‑1994. I had allowed this criminal revision application. These are the reasons for passing that order. N.H.Q/A‑26/K Revision petition allowed.