1968 P Cr (PLP)

S. A. RAHMAN, J.‑This is a petition for special leave to appeal by Mian Fakhar‑e‑Alam whose bail has been cancelled by order of a Single Judge of the High Court of West Pakistan. He is being tried for offences falling within sections 406, 409, 420 and 109 of the Pakistan Penal Code, by a Magistrate at Jauharabad. It appears that the petitioner was granted bail by order of Mr. Justice Karam Elahi Chauhan, on the 22nd September, 1966. The trial Magistrate, however, by order dated the 19th September, 1967, cancelled his bail on certain grounds. This order was challenged by a petition for revision to the High Court of West Pakistan and on the 25th September, 1967 Mr. Justice Shamim Hussain Kadri allowed interim bail to the petitioner while issuing notice to the State. That petition seems to be still pending in the High Court. In the meantime the complainant in the case applied for cancellation of the bail of the petitioner and this was put up for hearing before Mr. Justice Feroze Nana Ghulamally. The learned Judge, apparently, was under the impression that the application was directed solely against the order granting bail passed on the 22nd September 1966, by Mr. Justice Chauhan. There is no reference in his order to the cancellation of the bail by the Magistrate or of the application made to challenge that order in the High Court and the interim bail granted by Mr. Justice Kadri. These facts were, however, mentioned in the application for cancellation of bail put in by the complainant. Unfortunately, the counsel for the petitioner did not bring these facts to the notice of Mr. Justice Feroze Nana Ghulamally at the time of hearing. It is complained on behalf of the petitioner by Mr. Shah Mohammad Malik that the impugned order of the learned Single Judge too into account certain circumstances which related to the past and which did not justify the cancellation of bail. The learned Judge also appears to have thought that the petitioner under a legal obligation to present himself personally before the High Court when the application for cancellation of bail came up for hearing. This appears to be incorrect as the notice to the petitioner on that application was to the effect that he may appear personally or through counsel. It is further stated that the prosecution itself had submitted the challan in the trial Court on the 12th June, 1967 and copies of statements of witnesses recorded by the police were given to the accused on the 1st August, 1967 so that any absences of the accused from the trial Magistrate's Court prior to this could not hold up the trial. Absences of the petitioner on medical certificates prior to this date have been mostly considered in the impugned order as justifying cancellation of bail. The second ground for cancellation of bail appears to have been misconceived as it was assumed that the petitioner's personal presence had been ordered in the High Court. The relevant facts raised on behalf of the petitioner in his application, on which he was granted ad interim bail by another learned Judge, have not been considered at all. These points merit consideration and we grant leave to appeal as prayed. Meanwhile the petitioner who has not so far been arrested, will continue to remain on bail granted to him by Kadri, J. No other papers are required for hearing this appeal which may be put up, subject to order of my Lord, the Chief Justice, some time next month. Petition accepted.