P L D 1986 Karachi 355 (PLP)

Allahdad v. The State 1.981 P Cr. L J 1184 and Muhammad Ajmal v. State 1968 P Cr. L J 782 ref. Ahmad Khan Barakzai for Petitioner. Abdul Ghafoor Manghi, Asstt. A.‑O. for the State. Date of hearing : 3rd September, 1984. This is a Criminal Reference made by a learned First Additional Session Judge. Dadu on 3‑5‑1984 for taking proper action with regard to cancellation of Bail as the Bail was granted by the High Court. Briefly stated the relevant facts giving rise to this reference are that accused Pias Ali alongwith other co‑accused is being tried for offences under sections 302, 147, 148 and 149, P. P. C. He was granted Bail by me, vide order, dated 28‑3‑1982. Subsequently before the trial Court on 21‑3‑1984 father of the accused Pias Ali appeared and submitted an application with prayer that absence of accused Pias Ali on the date of hearing be excused for the reason that he had become mentally deranged and was tied up with a tree. The learned trial Judge on this application wrote an order for production of medical certificate on the next date of hearing This applica tion was supported by an affidavit. On the next date of hearing, dated 18‑4‑1984, accused Pias Ali himself appeared before the trial Court and produced medical certificate as was directed by the Court on the last date of bearing. Such application was filed by the accused duly supported by !his affidavit. On the back of this. application the learned trial Judge passed an order to the effect that in the medical certificate identity mark and identity Card number of accused were not mentioned and further certificate did not contain the signature or thumb‑mark of the accused as such authenticity of the certificate was doubted and the accused was remand ed to custody. In the same order the learned trial Judge directed for issuance of summons to the Doctor who issued the certificate to appear in the Court alongwith register of O. P. D. The next date of hearing was fixed on 3‑5‑1984. On this date the learned trial Judge passed further order on the same application that the Doctor had appeared and stated that the certified person was under his treatment yet on the day in question his condition was not serious neither he appeared before him in the morn ing to justify his absence from appearance in the Court. The learned trial Judge rejected application of the accused with the request for exemption from his appearance in the Court on 21‑3‑1984. The learned trial Judge in the order further forfeited the surety bond, issued notices and made reference to the High Court for cancellation of bail. 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 (A I R 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 enabl ing 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. The other point argued by Mr. Barakzai is that in the instant case even the orders passed by the learned trial Judge in connection with proceedings under section 514, Cr. P. C. are not legal and proper for the reason that they have not been passed following the requirements of section 514, Cr. P. C. According to the learned counsel the very first requirement for taking action under section 514, Cr. P. C. for forfeiture of bond is that such action can be taken only when the Court is satisfied and there are valid reasons for forfeiture of bond. Mr. Barakzai Advocate argued that for this satisfaction a sort of enquiry is to be held by the Court to be satis fied with sufficiency of reasons before bond is forfeited and such reasons are to be recorded. On this premise it was argued that law allows an opportunity to be given to the surety to explain why he could not produce the accused. It is further submitted in this context that before forfeiting the bond the Court should be satisfied whether surety had any direct financial or blood connection with accused or had connived at precuring absence of accused or had made efforts to secure attendance of accused. These factors are to be considered by the Court before passing order of forfeiture of bond. Reliance is placed on the case of Allahdad v. The State (1981 P Cr. L J 1184) and the case of Muhammad Ajmal v. State (1968 P Cr. L J 782). . Mr. Barakzai further submitted that in the instant case the facts are that on 21‑3‑1984 accused did not appear but his father appeared and filed an application that accused was mentally sick and was tied with a tree as such his absence be excused. The learned trial Court ordered production of medical certificate. It is clear that this question whether accused was sick or not was being enquired into. On the next date i. e. 18‑4‑1984 accused himself appeared alongwith medical certificate, which was not accepted by the trial Court but still the trial Court considered fit to enquire further into the matter and ordered issuance of summons to the Doctor who had issued the certificate to appear before him alongwith Register of O P. D. This clearly shows that the learned trial Judge was still conduct ing enquiry with regard to the illness of accused, hence during the pendency of that matter passing an order of remanding the accused to custody appears to be manifestly illegal for two reasons firstly that this order amounts to cancellation of ball which can be passed only by the High Court which had granted bail and secondly that enquiry, by the Court with regard to the medical certificate and illness of the accused was still pending and the Doctor was called. In the circumstances at the time when the order was passed by the Court on 18‑4‑1984 remanding to the accused to the custody was not legal. Subsequently order passed by the trial Court on 3‑5‑1984 also does not appear to be valid for the reason that no notice was issued to the surety before forfeiture of the bail bond. This order, dated 3‑5‑1984 is also not consistent with the requirements of section 514, Cr. P. C. and the case. law on the point mentioned above. Now so far the reasons of non‑attendance of accused on 21‑3‑1984 are concerned, father of accused informed the Court that accused was mentally ill and was tied with tree. As ordered by the Court medical certificate was produced on the next date. The medical certificate is on the record and it shows that accused Pias Ali was under the treatment of Doctor‑as outdoor patient from 21‑3‑1984 and he used to visit the doctor in the evening for about 10 or 15 minutes daily. In the medical certificate produced by the accused, the doctor has stated categorically that accused was suffering from Psychoneurosis. In the written application of the doctor, dated 3‑5‑1984 it is stated that accused used to visit him daily in the evening for 10 or 15 minutes and he was not in such a serious condition that he may not have come to attend the Court at Dadu. In any case it is clear that accused was mentally ill and was under the treatment of doctor. Accused used to attend the doctor in the evening and in the morning he could have such attack as stated by his father. The doctor did not say that accused could not have such attack in the morning. Father of the accuse stated in the application that accused was tied up with the tree. He ha filed affidavit in support of that application. In any case only on on occasion accused could not appear and proper application was filed by hi father for exemption from his appearance. In my opinion these circum. g stances and facts are‑ enough to warrant exemption from appearance on one occasion. No further action is called for. Reference is answered accordingly. Record may be sent back to the trial Court to proceed with the case according to law. Consequently orders of trial Court, dated 18.4‑1984 and 3‑5‑1984 are set aside. Accused Pias Ali is allowed to remain on the same bail granted by this Court earlier. M. A. K. Reference answered accordingly.