P L D 1993 Karachi 358 (PLP)

For the purposes of this revision application the following statement of facts would suffice.

2. Applicant Akbar Khan and one Muhammad Alam are facing trial in Crime No.51 of 1988, Landhi P.S. under section 302/34,'P.P.C., in the Court of Vth Additional Sessions Judge (East), Karachi. During the pendency of the case the applicant was granted bail and he was regular in attending the Court when on 27-6-1992 he remained absent without any intimation and consequently the following order was passed:

"A.P.P. present. Accused Muhammad Alam present on bail. Co accused absent. P.Ws. Qari Muhammad Younus, Khalid Hussain and Zahid Hussain present. DA. also absent. Since accused Akbar Khan has absconded, hence the attendance of P.Ws is discharged for the time being. Put off to 20-7-1992. Issue N.B.W. for accused Akbar Khan and notice to his surety. Present -accused directed to attend."

3. On 20-7-1992 the applicant again remained absent. However, an application was moved on his behalf seeking condonation of his absence on the ground that he was lying ill at Khuzdar (Balochistan). This application was supported by a prescription slip of Divisional Headquarters Hospital, Khuzdar. The learned Additional Sessions Judge, however., dismissed this application with the following order:-- "Heard. Already order for issue of N.B.W. against him and notice to his surety has been passed. The prescription produced with this application can hardly be treated as a substitute of a medical certificate. The accused appears trying to protract the proceedings. Application is therefore rejected."

4. According to the record the applicant remained absent on 5-8-1992, 25-8-1992 and 15-9-1992. He was however, produced in Court on 5-10-1992 by one Jamil-ur-Rahman, the brother of his surety and was remanded to custody although he had produced medical certificates in respect of all the dates of hearing on which he remained absent. It is in these circumstances that the applicant has filed the present revision application under section 439, Cr.P.C. 5. 1 have- heard Mr. A. Sh ahid Khan, learned counsel for applicant and Mr. Abdul Hakepm H. 11ijarani, learned A.A.-G. for State.

6. Admittedly the applicant was regular in attending -the Court prior to these defaults committed by him. There is also no dispute that he is a driver by profession. It is the case of the applicant that he had gone with the truck to Khuzdar, where he had fallen ill, which prevented him from appearing before the trial Court on 27-6-1992. The prescription slip of the Divisional Headquarters Hospital, Khuzdar is on record, which in my view is more authentic than a medical certificate issued by a private medical. practitioner The I report of Muhammad Sultan, P.C., who is the process-server, dated 20-7 1992 is on record and it confirms the plea raised on behalf of the applicant. In his report the process-server has stated as follows:

7. obviously therefore, the absence of applicant before the trial Court on 27-6-1992 was not deliberate or intentional. This fact was brought to the notice of the trial Court by the learned counsel for the applicant on 10-7-1992, but the prayer for condoning his absence was refused on a ground which is hardly tenable in law. Likewise the applicant has produced medical certificates in respect of other dates of hearing and it was all along his case that he could not attend the Court for reasons beyond his control. There appears to be a good deal of force in the contention raised on behalf of the applicant. The question of absence on account of illness of accused was considered by this Court in the case of Rana Masood Ahmed v. The State reported in PLD 1992 Karachi 213, wherein it was observed as folfows:- "The medical certificate issued by a registered medical practitioner is the simplest form of documentary evidence regarding the illness of the applicant. There was no reason to suspect the above medical certificate and if at all the learned Additional Sessions Judge doubted its correctness the proper course was to have directed the medical examination of the applicant before a competent Medical Officer at Lahore. At any rate the cancellation of bail granted to applicant on this ground was arbitrary and without any legal authority."

8. As indicated above the absence of the applicant before the trial Court on the aforesaid dates of hearing does not appear to be deliberate or intentional and consequently the order, dated 5-10-1992 by which he was remanded to custody without cancelling his bail or forfeiting his bail-bond, appears to be illegal and harsh and is accordingly set aside. As a necessary corollary to this order the applicant is deemed to be on bail granted to him earlier and he shall be released forthwith in this case with direction to appear before the trial Court on every date of hearing till otherwise directed.. In the result the revision application is allowed. .N.H.Q./A-1340/K