1996 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

Ss. 497(5) & 439

Offence of Zina (Enforcement of Hudood) 'Ordinance (VII of 1979), S.5/10/11

Cancellation of bail

Sessions Court had wrongly burdened the complainant for the production of accused and had not at all given any notice to the sureties to appear and to produce the accused in Court-- Complainant had been condemned for no fault and his application for cancellation of bail had been rejected on wrong premises without adhering to the merits

Such order of the Sessions Court was consequently set aside under S.439, Cr.P.C. and the application was sent back to Sessions Court for disposal on merits in the light of the observations of High Court. Tasleem Hussain for Petitioner. Malik Hamid Saeed, Addl. A.-G. for the State. Date of hearing: 8th April, 1996. Respondent Sher Afzal son of Dina Gul resident of Sadda, Parachinar, with reference to F.I.R. No.191, dated 18-2-1992, Police Station Faqir Abad was charged under section 5/10/11 of Ordinance VII of 1979 on the basis of a report lodged by Noor Muhammad son of Wakil Muhammad. He was released on bail by Magistrate 1st Class, Peshawar on 6-2-1995 against which Noor Muhammad filed a petition for cancellation. Mr. Ziauddin Siddiqi, learned Additional Sessions Judge, Peshawar vide his order, dated 30-7-1995 refused to cancel the bail and hence Noor Muhammad has moved this Court for such cancellation.

2. The learned Additional Sessions Judge has mainly refused cancellation on the ground that the accused belonged to Parachinar and that the complainant had failed to make any pointation. It appears to have been ignored by the learned Additional Sessions Judge that in criminal cases it has never been the burden of a complainant to procure the attendance of an accused. He is a liability of the State and it is the job of the police to trace him and to produce him in compliance with the notice, summons or warrants issued by the Court.

3. The provision of sureties while executing a bond is provided in law also to ensure the attendance of an accused. If the accused is not traceable or if his address is changed without intimation to the law enforcing agencies, the Courts can always resort to the sureties in order to procure attendance of an accused.

4. In the instant case the learned Additional Sessions Judge has wrongly burdened the complainant for the production of accused and has not at all given any notice to the sureties to appear and to produce the accused in Court. The complainant has been condemned for no fault and the bail cancellation application was thus wrongly rejected on wrong premises and without adhering 1 to the merits. The order, dated 30-7-1995 is set aside under section 439, Cr.P.C. and. the present application is accepted to the effect that the bail cancellation application, Noor Muhammad v. Sher Afzal etc. pending before Additional Sessions Judge, Peshawar is restored and the learned Judge is directed to dispose of the same on merits and in the light of this Court's observations. Petitioner to appear before the aforesaid Court on 15-4-1996. N.H.Q./1925/P Case remanded.