1. ' The applicant is facing a trial under section 156(1), clause 8, Customs Act, 1969, before the learned Special Judge, Customs Karachi.
2. ' The applicant was granted bail by this Court on 11-6-1979, in Criminal Bail Application No, 12 of 1979.
3. However, on 3-10-1979, the applicant did not attend the trial Court and his application for condoning his absence on the alleged ground of illness was rejected by the learned trial Judge, who by the same order, ordered issue of non-bailable warrants against the accused and forfeited his bail bond. He also issued notice to his surety.
4. ' On 28-10-1979, the applicant moved the Court for bail urging that he had undergone a major operation which had resulted in complications, on account of which he was bed-ridden. As to his absence on 3-10-1979, he stated that one of his relatives had obtained medical certificate and hand over to a clerk of the trial Court. On these grounds the applicant prayed for being excused for his absence. The learned trial Court rejected this application by order of the same date. In rejecting this application the learned Judge has taken into consideration the allegation that one of the prosecution witnesses namely Muhammad Ismail, Mashir had moved the Court on 7-8-1979, alleging that the accused persons were threatening him. On the date of impugned order the examination of the aforesaid witness was not yet complete. Taking into consideration the aforesaid circumstances and the alleged conduct of the applicant to obtain unnecessary adjournments, the learned Judge came to the conclusion that the applicant had deliberately absented himself from attending the trial Court. The applicant has now come up before this Court in revision against the aforesaid order.
5. ' It is contended by Mr. Azizullah Shaikh, learned counsel for the applicant that in view of the fact that the applicant was granted bail by this Court, the learned Special Judge was not competent under subsection (5) of section 497, Cr. P. C. To cancel the applicant's bail. He next contended that in any case the learned Special Judge ought to have given notice to the applicant before cancelling his bail on adverse findings regarding his conduct. Reliance has been placed on Bahadar Ali v. State (1), which supports the contention of the learned counsel. It was held in this case that in case the bail is granted by the High Court, it alone can vary or rescind any order passed under section 498, Cr. P. C. And the Magistrate or the Sessions Judge is not empowered to cancel the bail and to consign the accused to jail.
(1) 1968 P Cr. L J 1138 Similar view was held in Muhammad Aslant v. State (1). It seems the learned Special Judge was influenced greatly by the consideration that a complaint was made by the witness that he was being threatened by the accused persons. Mr. Azizullah Shaikh informed me that this witness Ismail son of Tayab has now been examined and his evidence has been concluded on 14-11-1979.
6. ' Mrs. Salima Nasiruddin, has opposed this application she has contended that the trial Court has all the powers to cancel the bail if the accused person misused the privilege granted to him.
7. However, she is unable to support this proposition by any case-law and the plain reading of subsection (5) of section 497 clearly authorises the High Court to cancel bail in all cases and the Court of Session only to cancel bail in a case in which bail was granted by itself. The Special Judge, under the Customs Act, exercise the powers of the Sessions. Judge, and therefore, it appears to me that in case in which this Court grants bail without reservations authorising the trial Court to cancel bail in given contingencies, the Special Judge, will not be competent to exercise the powers for cancellation of bail. As has been pointed out in the case of Bahadur All v. State the Court could, in case the accused was intentionally avoiding to attend the Court proceed against the surety under section 514, Cr. P. C. Additionally the trial Court could make a reference to this Court or the prosecution could move for cancellation of bail A in this Court. In this view of the matter the order was passed without jurisdiction and is liable to be set aside. It may however, be pointed out that the anxiety of the learned Special Judge to see that no unnecessary adjournments are obtained on false pretexts appears to be genuine. While therefore, allowing bail to the applicant on his furnishing surety in the sum of Rs, 50,000, with one surety and P. R. In the like amount to the satisfaction of the trial Court, I will leave it open to the trial Court to cancel his bail in case the accused misused the privilege in any manner in future.
(1) 1968 P Cr. L J 152