1990 PLP 99 (MLD)

"Neither the Magistrate nor the Sessions Judge was empowered to cancel the bail and to consign the accused to jail in the face of my order of 7th December 1931. They could not read into that order a direction which was not expressed there, to the effect that if at any time they were satisfied that there was reasonable grounds for believing that the accused had committed the offence they should be at liberty to cancel the bail."

3. It will be noticed that in main the observation is based Upon the possibility of cancellation of bail granted by the High Court by subordinate Courts on merits. The question of absconsion of the accused was not involved in that case.

4. The first of the Karachi cases is The State v. Piass Ali, reported in PLD 1986 Karachi 355, a reference to the judgment will show that it was based mainly on the above-cited authority without taking into consideration the concurrent jurisdiction of the Court of Session and .the High Court in the matter of cancellation of bail under subsection (5) of section 497, Cr.P.C. At page 357 the following observations were made:-- "Mr. Ahmad Khan Barakzai, Advocate for the accused has argued before me that the order passed by the learned trial Judge on 18-4-1984 remanding the accused to judicial custody is illegal as the accused was on bail granted by the High Court and such bail could be cancelled only by the High Court. In -support of this argument the learned counsel has cited the case of Mirza Muhammad Ibrahim v. Emperor AIR 1932 All. 534, Mr Abdul Ghafoor Manghi A.A: G. readily conceded the legal point that bail granted by the High Court could only be cancelled by the High Court and the order passed by the learned trial Judge on 18-4-1984 remanding the accused to custody amounts to the cancellation of bail. There is no dispute about this fact that if the bail is granted by a superior Court in a case which is pending before the trial Court and no provision is made in the order of bail enabling the trial Court to cancel the bail on its own, then the trial Court shall not cancel the bail and if such action was warranted due to any valid reason then a reference will have to be made to the superior Court granting the bail for its cancellation."

5. In the case of Raja Waheeduzzaman v. The State, reported in 1985 PCr.LJ 1238, the above two authorities were followed while holding that the Assistant Sessions Judge was not competent to cancel a bail granted by Additional Sessions Judge.

6. As observed in The Crown v. Khushi Muhammad, reported in PLD 1953 Federal Court 170, the basic conception of the word "bail" is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so, Again the granting of bail in a non-bailable offence is a concession allowed to an accused person and it pre-supposes that this privilege is not to be abused in any manner. It is a sort of trust reposed in him by the Court and if it is found that he has betrayed this trust in any manner or that he has misused the liberty thus granted to him, he disentitles himself to the privilege so granted.

7. Therefore, where the accused jump bail by remaining absent for about four months they forfeit the concession extended to them. The issuance of non- bailable warrant against accused amounts to cancellation of bail and for that no reference to High Court is necessary.

8. The question of absence of accused- persons on bail granted by this Court for appearance before the trial Court was examined by the Chief Justice and a directive was issued by the Registrar, bearing No. 4889/RHC, dated 28-12-1985 to all the Sessions Judges in the following words:-- "I am directed to refer your letters Nos. 501/1985 and 580/1985 both dated 11-12-1985 on the above subject and to say that under section 514 Cr. P.C. in cases of forfeiture of bonds for appearance, satisfaction in regard to breach of bond has been to be recorded by the Court before whom the accused is bound to appear. Under these circumstances you are fully competent to record forfeiture of the bond on account of absence of accused. You can even issue a non-bailable warrant for arrest of the absconded accused or take any other action which the law permits you to take. In a similar case, Criminal Bail Application No.471 of 1984-Majid Mushtaq v. The State, on a reference having been made by you, the Hon'ble Chief Justice was pleased to pass the following orders:-- "Bail was granted by Mr. Justice Ali Nawaz Budhani for appearance before the Court of Special Judge (Central), Karachi. Under section 514 Cr. P.C. the satisfaction in regard to forfeiture of the bond has to be recorded by the Court before whom such person has to appear. No orders of the High Court are, therefore, necessary. The Special Judge could after recording such satisfaction take action in terms of .the bond, and even issue non-bailable warrants. In view of what is stated above, no further orders are necessary and the application stands disposed. You are, therefore, requested to desist from making reference in such cases in future and deal with them according to law."

9. In view of the above directive, no reference to this Court for cancellation of bail in the above situation is necessary. I need not repeat that issuance of non bailable warrants against accused amounts to cancellation of bail. The reference is disposed of accordingly. N.H.Q./M-957/K Order accordingly.