2016 P Cr (PLP)

MUHAMMAD ALAM, J.

Petitioners have prayed for revising orders dated 29-10-2015 and 12-10-2015 of the court of Anti-Terrorism Gilgit that the said court passed in TC No.15/2014, through this petition.

2. Brief background of the circumstances in which petitioners had to move this petition are very important and play pivotal role in coming to the correct conclusion of the case as the background of the circumstances that led to filing this petition are admitted by the parties. Petitioners submitted surety bonds dated 31-12-2014 in the trial court, in the light of order dated 11-12-2014, passed by this Court, in Cr. Misc. No.129/2014. Through the said bonds, petitioners stood sureties for appearance of the accused, Amir Hamza and Mohammad Bashir, in connection with trial proceedings of the case in the trial court. Said two accused were under trial before the trial court in connection with the occurrence reported through FIR No.09/13 of Police Station Darel. The learned trial court passed release order dated 31-12-2014, soon-after submission of above referred bonds by the petitioners as well as the above named two accused. The above referred two bonds are worth perusal whereby the above named two accused as well as the petitioners submitted bail bonds of Rs.500,000/- each in case of default of appearance of the above named two accused. Petitioners have challenged orders dated 10-12-2015 and 29-10-2015 of the trial court. Learned trial court cancelled bail facility granted to the accused through his order dated 10-02-2015 and then issued notices to the petitioners and non-bailable warrants to the accused. Through order dated 12-03-2015, learned trial court repeated the words of cancellation of bail to the accused and again issued non-bailable warrants to the accused. The petitioners were then present in the court and were directed to produce the accused. Learned trial court repeated proceedings of previous dates of hearing on 23-04-2015 also. Through order sheet dated 23-07-2015, learned trial court issued non-bailable warrants for arrest and production of petitioner (Rehmat Khaliq). Through order dated 03-08-2015, the learned trial court repeated non-bailable warrants to the accused as well as to the petitioners. Through order sheet dated 05-09-2015, the learned trial court again afforded a chance to the petitioners for producing the accused and also issued notices to the petitioners, under section 514, Cr.P.C. Through impugned order dated 10-12-2015, learned trial court ordered for forfeiture of bonds of the petitioners and directed for recovery of Rs.10,000,00/- from the petitioners through attachment and sale of their movable and immovable properties. We find mention of penalty amount of Rs. 10,000,00/- in the impugned order dated 12-10-2015. Through impugned order dated 29-10-2015, learned trial court has again afforded a chance to the petitioners for compliance of impugned order dated 12-10-2015.

3. We have heard learned counsel for petitioners and learned Deputy Advocate General at length and have gone through the material available on file. We have further considered the above admitted state of affairs. From the above description of background of the case as well as the valuable arguments of the parties, we feel that the following questions are very important to be answered by the trial court:- I. What are the consequences of cancellation of bail facility to the accused? II. Whether trial court is free to forfeit the bail bonds of the petitioners without taking any action of forfeiture of the bonds of the accused? III. Whether trial court has correctly cancelled bail facility to the accused as the same has admittedly been granted to the accused through bail grant order dated 11-12-2014 passed by this Court in Cr. Misc. No.129/14? IV. What proceedings the trial court has taken to satisfy himself that accused misused the bail facility granted to him by this court? V. Whether trial court can proceed against petitioners after cancelling the bail facility to the accused?

4. In our considered opinion, the learned trial court did nothing against accused before taking action against the petitioners through impugned orders. In our opinion, the cancellation of bail, facility to the accused is a grave mistake of the learned trial court. Learned trial court has powers to cancel the bail facility but only after arrest of the accused and never before his arrest. The cancellation of bail facility to the accused practically rendered the surety bonds submitted by the accused discharged. This very action of the learned trial court benefitted the accused. In our Opinion, the trial court could issue non-bailable warrants and could initiate proceedings for forfeiture of the bonds of the accused without cancelling the bail facility to the accused. We are of the opinion that learned trial court could initiate proceedings of forfeiture of amounts of bail bonds of the petitioners only after such action against the accused. Issuing of non-bailable warrants against the petitioners and forfeiture of the amounts of surety bonds of the petitioners is at least bad in the eye of law as the same action has been initiated after cancelling bail facility to the accused. The trial court must have questioned the SHO concerned as well as the SSP concerned for their failure to produce the accused in court. Record does not show any action against the SHO or SSP concerned for their failure to produce the accused in the court.

5. We have found material irregularities that resulted to the impugned orders. We, therefore, hold that both the impugned orders are bad in the eye of law and merited to be set aside. We accordingly accept this petition and set aside impugned orders. We find order dated 10-02-2015 of the trial court as incorrect and we set aside the said order also. Learned trial court is directed to initiate proceedings of forfeiture of personal bonds of the accused and do every possible effort for arrest and production of the accused. Anyhow, learned trial court is free to pass directions to the petitioners for forfeiture of bond amounts of Rs.500,000/- each as and when the occasion so arises. Petitioners are also free to challenge any order of the trial court in any appellate forum. Petition is allowed in the above terms. This file be consigned to record. HBT/104/GB Petition accepted.