2004 P Cr (PLP)

CHAUDHARY MUHAMMAD TAJ, J.

This appeal has been filed against the judgment and order; passed by the Shariat Court on 29-5-2002, whereby the appellant's bail was cancelled.

2. The facts necessary for the disposal of this appeal are that a case under section 10 of the Offence of Zina (Enforcement of Hudood) Act, 1985, was registered against the appellant alongwith another accused and after investigation was challaned before the Tehsil Criminal Court, Kotli. The accused-appellant was arrested and was allowed bail by Tehsil Criminal Court, Kotli. The complainant filed appeal before the District Criminal Court, Koth which was dismissed. However, an appeal filed with the Shariat Court was accepted and the bail was cancelled. This appeal challenges the aforesaid order.

3. Ch. Muhammad Ilyas, the learned counsel for the appellant contended that no prima facie case exists against the appellant. The prosecution has failed to produce any evidence in support of the allegations levelled against the accused-appellant. It was also argued by the learned counsel that no notice issued by the Shariat Court of Azad Jammu and Kashmir was served upon the appellant. The notice Annexure "L" was fake therefore, the order passed by the Shariat Court for the cancellation of bail was illegal and without jurisdiction. The learned counsel referred to a case reported as Zahid Afzal and another v. The State and another PLD 1991 SC 382 in support of his contentions.

4. Sardar Abdul Razzik Khan, the learned Additional Advocate General, argued that the appeal filed on behalf of the appellant is not competent. It was also argued by the learned counsel that the appellant could not be enlarged on interim bail as, according to him, the appellant after the cancellation of his bail from the Shariat Court of Azad Jammu and Kashmir did not surrender to the police, therefore, his appeal could not be heard. It was added that the accused-appellant being a fugitive from law was not entitled to be allowed pre-arrest bail by this Court. The learned counsel referred to the cases titled Muhammad Akram v. The State 1993 SCR 300 and Shaukat Ali v. The State 1998 MLD 1170 in support of his assertions.

5. We have heard the learned counsel for the parties and also gone through the record. The appeal against the judgment and order of the District Criminal Court, Kotli for the cancellation of bail was filed in the Shariat Court of Azad Jammu and Kashmir on 3-10-2001. The accused-appellant was summoned and was served upon but did not appear before the Shariat Court. His bail under sections 10 and 16 of the Offence of Zina (Enforcement of Hudood) Act, 1985, was cancelled on merits. The accused-appellant did not surrender to the police has filed an appeal before this Court and also applied for pre-arrest bail which was allowed till the disposal of this appeal by the learned single Judge in his Chamber. The order was attacked on the grounds that the appellant was not served in consequence of the notice issued by the Shariat Court and also that there was no case on merits against the accused-appellant.

6. Firstly it would be essential to see whether the appeal filed in this Court without the appellant's surrender to the police was competent as pointed out by the learned Additional Advocate-General. It would be appropriate to look into the relevant notice issued to the accused appellant on which basis the learned Judge, in the Shariat Court proceeded to cancel the bail after satisfying himself that the accused was served upon the notice was issued on 15-5-2002 which was served upon the accused-appellant on 25-5-2002. An effort was made to tamper with the reports of the notice but the same was clearly served upon the accused-appellant. There is another important aspect of the case that the Shariat Court passed its order on 29-5-2002. The copy of the order against which the appeal before this Court was filed, was also received on the same day, i.e. 29-5-2002. An appeal before this Court was filed on 30-5-2002. It shows that the appellant had the knowledge of the proceedings against him before the Shariat Court, therefore, he received the copy on the same day and was also able to file appeal before this Court on the very next day. Such circumstances leave no doubt that the appellant was served upon and had also the knowledge about the proceedings of cancellation of bail against him before the Shariat Court and he intentionally avoided to appear.

7. Now the question arises whether the appellant without his surrender to the police could file appeal before this Court and is entitled to be heard on merits for his bail. It may be mentioned that an appeal against the order of the Shariat Court is filed under section 25 of the Islami Tazirati Qwanin Nifaz Act, 1974. As said earlier this appeal was filed under the provisions of the Islami Tazirati Qwanin Nifaz Act and the bail of the accused appellant was cancelled on merits by the Shariat Court, therefore, it was required that the appellant could file his appeal after his surrender to the police only. A reference may be made to a case reported as Muhammad Akram v. The State 1993 SCR 300 wherein a similar situation arose. The bail was cancelled by the Shariat Court of Azad Jammu and Kashmir and the accused Muhammad Akram did not surrender but filed an appeal before this Court and also filed an application for anticipatory bail. This Court while resolving the proposition made following observations:-- "The petitioner has filed an appeal in this Court which will be heard after the long recess. Meanwhile the petitioner has filed an application for interim bail. When this application came up for hearing today I asked the learned counsel for the petitioner to show whether, in light of the pronouncements of this Court, the plea made by an accused person who has not surrendered after cancellation of his bail can be heard. Ch. Muhammad Taj, the learned counsel for the complainant relied on a case titled Tariq Mehmood and another v. The State in which this Court observed as follows:

Appellants are absent. Their bail was cancelled by the Shariat Court but they have not surrendered. It is well-settled that in such circumstances the plea for grant of bail cannot be heard. The appeal is, therefore, dismissed'. He has also relied on the judgments mentioned above. Ch. Ali Muhammad, the learned counsel for the petitioner, relies on PLD 1991 SC 382 in which the Supreme Court granted interim bail to an accused whose bail had been cancelled but he had not courted arrest. The Supreme Court granted bail on the ground that they had surrendered themselves before the Supreme Court. This order was passed by a Judge sitting in ' Chamber. Sitting in Chamber, I would like to follow the dictum of this Court in Tariq Mehmood's case, reproduced above, and I hold that the application of the petitioner can be heard only if he surrenders to the police .....'

8. The case-law cited by the learned counsel for the appellant, i.e. Zahid Afzal and another v. The State and another PLD 1991 SC 382, referred to above, was also taken into consideration and thereafter the above mentioned observations were made. Therefore, it was of no avail to him. We would like to observe that this appeal has been filed against the accepted rules of procedure. The appellant has filed his appeal without his surrender to the police and his explanation for not having been served in view of the record is not accepted as such we also hold that this appeal was not competent. In view of the conduct of the appellant he was not entitled to any interim bail as well relying upon Muhammad Akram's case. The appeal, therefore, is dismissed. Consequently, the interim bail granted earlier also stands cancelled. N.H.Q./31/SC(AJ&K) Appeal dismissed.