2005 PLP 534 (YLR)

Sardar Abdul Razzik Khan, Addl Advocate‑General for the State. Date of hearing: 6th October, 2004. CHAUDHARY MUHAMMAD TAJ, J.‑‑‑This appeal has been filed against the judgment and order passed by the Shariat Court of Azad Jammu and Kashmir on 22‑9‑2003 whereby the revision petition was accepted and the respondent was released on bail.

2. The facts are that a case under sections 302 and 341, A.P.C. read with section 13 of Arms Ordinance, 1965 was registered against accused‑respondent No.1 and he was sent to face trial before the District Court of Criminal Jurisdiction, Kotli. During the trial accused‑respondent was granted bail on the statutory ground provided under section 497, Cr.P.C. However, after the conclusion of the trial the accused‑respondent was convicted and sentenced to 25 years' R.I. by the trial Court and thus was taken into custody. An appeal was filed to challenge the validity of conviction and sentence. The learned Judge in the Shariat Court accepted the appeal, and set aside the conviction and remanded the case to the trial Court for recording his statement under section 342, Cr.P.C. afresh.

3. After the remand of the case the respondent applied for his bail before the trial Court, which was rejected. Therefore, a revision was filed before the Shariat Court of Azad Jammu and Kashmir and the learned Judge in the Shariat Court accepted the revision petition and released him on bail. The aforesaid order is challenged through this appeal.

4. Mr. Abdul Majid Mallick, the learned counsel representing the appellants, contended that the learned Judge in the Shariat Court illegally held that the accused‑respondent was entitled to the bail for being on bail during the trial. It was argued that the statutory provisions under which the accused‑respondent availed the right of bail during trial were no more on the statute book. Additionally, the accused respondent was convicted and was taken into custody by the police and thereafter the appeal was heard by the learned Judge Mr. Justice Hussain Mazhar Kaleem who remanded the case for recording of statement under section 342, Cr.P.C. and the said Bench did not pass any such order.

5. On the other hand, Mr. Muhammad Yunus Tahir who appeared on behalf of the accused‑respondent, argued that the accused‑respondent was on bail during the trial when on his conviction the bail was cancelled but the case has been remanded, therefore, he may be allowed to be released on bail during the trial.

6. We have heard the learned counsel for the parties and also gone through the record. A case under sections 302 and 341, A.P.C. read with section 13 of Arms Ordinance, 1965 was challaned before the District Court of Criminal Jurisdiction, Kotli. The accused‑respondent was released on bail under statutory provisions of section 497, Cr.P.C. However, he was convicted and sentenced to 25 years R.I. with the result his bail was cancelled and he was taken into custody by the police. He filed an appeal before the Shariat Court which was accepted on the ground that the relevant material was not put to the accused which was made basis for the conviction, therefore, the case was remanded to the trial Court for recording his statement under section 342, Cr.P.C. It would also be important to mention that the learned Judge in the Shariat Court while remanding the case did not make any order in respect of bail either on merits or under statutory provisions under section 497, Cr.P.C.

7. It may be mentioned that bail of the accused‑respondent continued allowed to him under the statutory provisions under section 497, Cr.P.C. and the same was held to be cancelled on the conviction and sentence awarded to the accused respondent. He moved an application before the trial Court which was disallowed on the ground that he is not entitled to the bait under the statutory provisions of section 497, Cr.P.C. as the aforesaid provisions of law were no more on the statute book. The order was challenged in the Shariat Court through a revision petition which was accepted. After a careful consideration, we are of the view that the order is without any sanction of law as the bail allowed under the statutory provisions of section 497, Cr.P.C. was cancelled at the time of his B conviction. The aforesaid provisions of law were no more on the statute book, therefore, the order passed by the learned Judge in the Shariat Court could not sustain. Probably, under the aforesaid state of law, the learned Judge who heard the appeal did not feel it appropriate to exercise discretion. Therefore, the order passed by the Shariat Court is set aside by accepting the appeal. Consequently, the bail granted to respondent No.1 shall stand cancelled. H.B.T./126/SC(AJ&K) Bail cancelled.