2003 P Cr (PLP)

Applicant Abdul Rauf and another are facing trial for an offence punishable under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 in the Court of IIIrd Additional Sessions Judge, Larkana. In view of the circumstances, leading to this application, it is needless to dilate upon the facts of the prosecution case, as. the main ground advanced for the release of the applicant is that the order dated 29-1-2003 passed by the Incharge IIIrd Additional Sessions Judge, Larkana recalling the previous bail of the applicant suffers from legal infirmity. In order to recapitulate, it may be stated that earlier on 14-5-2001 learned Incharge IVth Additional Sessions Judge, Larkana granted bail to the applicant in the sum of Rs.50,000 and he was accordingly released. The case diary dated 29-1-2003. shows that the applicant Abdul Rauf remained absent without intimation on that day. The trial Court, therefore, ordered non-bailable. warrants for arrests to be issued against him and also notice to his surety On 1-3-2003 the applicant appeared voluntarily before the Incharge IIIrd Additional Sessions Judge, Larkana and he was taken into custody, as his bail had already been recalled on 29-1-2003. The said order dated 29-1-2003 has been impugned through this application. I have heard Mr. Nisar Ahmed Abro, learned counsel for applicant and Mr. Ali Azhar Tunio, learned A.A.-G. and perused the relevant material. Learned counsel for applicant invited my attention to operative part of the impugned order, which runs as under:-- " So far the grant of a bail to the co-accused Abdul Rauf is concerned, the bail application of the co-accused Abdul Rauf dated 9-2-2001 was rejected vide order dated 28-2-2001. He repeated the bail application on the same ground of affidavits. Neither the learned advocate disclosed about the previous bail application which has been rejected on the ground of affidavits nor the Reader of the Court has mentioned this fact about the rejection of previous bail application on the ground of affidavits, therefore, due to such circumstances the co-accused was granted bail which I hereby recall the order dated 14-5-2001, " In the context of the above observations of the trial Court, learned counsel for applicant referred to the copy of previous bail application, which clearly reads that earlier an application for bail moved on behalf of the applicant was dismissed. The paras. 5 and 6 also speak of the affidavits exonerating the applicant. Obviously, the ground that weighed with the learned trial Court cannot be subscribed to. It is noted that the bail has been cancelled without notice to the accused under the provisions of subsection (5) of section 497, Cr.P.C. The learned A.A.-G. looking to the legal aspect frankly expressed that the impugned order cannot be supported. In the circumstances enumerated above, this is at the most a case of an accused remaining absent -without intimation, which could immediately warrant forfeiture of his bond and also of his surety. In that event, unless the bail is cancelled after issuing notice to him, the immediate course would be that he should be asked to furnish fresh surety. The requirement of notice cannot be dispensed with as a matter of routine. All the same, lapse on the part of the Reader of the Court can also not be taken as a ground for refusal of bail. In the circumstances, the applicant is allowed to remain on bail, as earlier granted by the trial Court. He may furnish fresh surety in the sum of Rs.50,000 and execute PR Bond in the like amount to the satisfaction of trial Court. It may be observed that the course of action against the surety is to be adopted separately by the trial Court in accordance with law. The application is allowed. H.B.T./A-454/K Application allowed