Muhammad Jehangir Arshad, J.--Vide order, dated 14.9.2006 both these petitions stand disposed of with the following short order: For the reasons to be recorded separately, both these petitions (Criminal Miscellaneous No. 2664/B of 2006 and Criminal Revision No. 300 of 2006) are allowed, resultantly the order, dated 1-9-2006 passed by Mr. Pervaiz Ismail Joya, Additional Sessions Judge, Dera Ghazi Khan cancelling bail of the petitioners, earlier granted to them, is set aside being without lawful authority, as such their bail alongwith surety bonds are restored and Superintendent of the concerned jail is directed to immediately release all the petitioners of both these petitions.
This order is be read in continuation to the said short order and shall form the detailed reasons thereof.
2. Petitioners in both these petitions are aggrieved of the single order handed down by Mr. Pervaiz Ismail Joya, Additional Sessions Judge, Dera Ghazi Khan on 1-9-2006 whereby the petitioners who were facing trial in case F.I.R. No. 20 dated 21-2-2005 under Sections 302, 364, 34, P.P.C. Police Station Civil Lines, D.G. Khan, were ordered "to be taken into custody and sent to jail by recalling their bails on the mere apprehension of their abscondence on a complaint/apprehension made by the complainant of the said criminal 'case that by taking advantage of abscondence of Abdul Karim co-accused and his sureties the other accused i.e. present petitioners would also abscond one by one". When this case came up for hearing there was a consensus among learned counsel for the petitioners as well as complainant that for the absence of Abdul Karim and his sureties, under no provision of law or by any stretch of imagination the petitioners who were very much present before the Court on 1-9-2006, could be punished by the learned Additional Sessions Judge through the impugned order which was not only passed, without notice; affording them opportunity of hearing and forfeiting their bail bonds, hence being in violation of principles of natural justice, but also too harsh to sustain in the eyes of law.
2-A. On 8-9-2006, Ch. Pervaiz Aftab, Advocate who is very senior counsel and eminent lawyer of this Bar on criminal side, was requested to assist this Court as amicus curiae. The learned amicus curiae by placing reliance on the case Abdul Khaliq v. Khan Bahadur and another PLD 1996 SC 176 argued that since it is established from the record that learned counsel for the petitioners was admittedly not present on 1-9-2006 because of strike on the advice of the Punjab Bar Council and all the petitioners were present in person, therefore, it was not appropriate for the learned Additional Sessions Judge to have passed such a harsh order which is usually passed at an extreme stage and also not in the absence of their counsel or without hearing the learned counsel.
It is further argued by learned amicus curiae that the said order appears to have also been passed in purported exercise of jurisdiction under Section 497(5), Cr.P.C. otherwise, no such provision in Criminal Procedure Code is available for passing such an order. Further contention of the learned counsel is that such-like order on the basis of mere apprehension of petitioners' abscondence could not have been passed and the impugned order was violative of the law declared in the case Pervaiz v. The State and another 2004 PCr.LJ 1318 and Syed Muhammad Roban Shah and others v.
The State and others 2005 PCr.LJ 319. It is further argued with reference to the case Roshan Din and others u. Mst. Basso 2002 Cr.LJ 26 that bail cannot be cancelled so as to keep an accused as a hostage for the purposes of ensuring the attendance of co-accused. Lastly it is argued that it is now an established law that bail 'cannot be refused to other co-accused for the misdeed of their companions. Reliance in this respect is placed on the case Abdul Qadeer v. Muhammad and another 1976 PCr.LJ 1203.
3. Learned counsel for the petitioners in both the petitions besides adopting the view point of the learned amicus curiae, have further argued that there was no justification at all for the learned trial Court to cancel the bail and send them behind the bars, firstly for the fault of one of the co- accused and secondly without serving any notice or affording opportunity of hearing their counsel or their personal hearing and that in case the learned trial Court apprehended that petitioners would also abscond, further surety could have been demanded from the petitioner but the way all of a sudden their bails were cancelled and they were sent to jail even without informing their kiths and kins, cannot be approved under any provision of law, rather the same is colourful exercise of jurisdiction on the part of the judicial officer.
4. Sardar Zafar Ahmad Lond, Advocate for the complainant did not offer serious defence to support the impugned order except by saying that Abdul Karim co-accused absconded with the connivance of the petitioners and thus, the complainant was justified in seeking cancellation of their bail.
5. I have given my anxious consideration to the valuable assistance rendered by the learned amicus curiae and adopted by the learned counsel for the petitioners and the arguments of learned counsel for the complainant and have also gone through the case-law with their assistance.
6. It is an established principle of law that bail once granted to an accused can only be cancelled under Section 497(5), P.P.C. and urisdiction so conferred on the High Court and Sessions Court can only be exercised after notice to the accused and also affording him, not only reasonable but full opportunity of hearing as in case of cancellation of bail the Court is to deprive a person of his right of security and freedom to Move, etc., which are otherwise protected by Articles 9 and 15 of the Constitution of Islamic Republic of Pakistan, 1973. Again Article 10 of the Constitution provides sufficient safeguards against arrest without notice as well as recognize the right of consultation and defence by a legal practitioner of his choice and protection of these rights is the fundamental duty of the Courts and Courts should otlivrwise ensure that no person is deprived of any of these rights except in due course of law.
7. The above resume of the facts leave no option but to conclude that the learned Additional Sessions Judge passed the impugned order, not only in undue haste but also in clear violation of Articles 9, 10 and 15 of the Constitution of Islamic Republic of Pakistan, 1973, and also in colourable exercise of jurisdiction. Before proceeding further, I would like to reproduce the relevant paragraphs of the impugned order:-- "1-9-2006. Accused Muhammad Amjad, Riaz and Samina on bail. D.D.A. for the State. Complainant in person. .................................................................
'Case came up for statement of accused under Section 342, Cr.P.C. and Abdul Karim accused absconded and application was filed by his counsel that he had proceeded Saudi Arabia in connection with his business but process server has negated the said version.
Non service of Abdul Karim accused as well as his surety indicates that his co-accused were making hindrance for the arrest of Abdul Karim accused and his surety. Complainant also raised apprehension that remaining accused will also abscond one by one. Keeping in view the above said situation, concession of bail granted to Muhammad Amjad, Riaz and Samina accused is hereby recalled, as there is apprehension of their abscondence. They are taken into custody and sent to jail with the direction to the Superintendent Jail, D.G. Khan to produce them on each and every date of hearing. Their sureties are discharged. ....................................................................
'The above quoted order clearly indicates that on 1-9-2006 neither the petitioners nor the complainant were represented by their counsel and there is a force in the contention of learned counsel for the petitioners that the said order was passed in the absence of the counsel, as according to them lawyers' were on strike called by the Punjab Bar. Council. Cancellation of bail without hearing counsel, by the learned trial Court on 1-9-2006, therefore, is not only violative of the law declared by the Honourable Supreme Court of Pakistan in Abdul Khaliq v. Khan Bahadur and another PLD 1996 SC 176, referred to above, but also in clear violation of safeguards provided by Article 10 of the Constitution of Islamic Republic of Pakistan, 1973 declaring consultation and defence by a legal practitioners a fundamental right of every person. Secondly, the said order was passed on the bare apprehension of the complainant that taking advantage of the absconding co-accused Abdul Karim, the remaining accused (petitioners) would also abscond one by one, which is not a ground recognized by law for cancelling bail because law on the subject is well- settled that no person can be punished for the fault of another unless there is some material on record to conclude that either the absconder is absent with the connivance of the co-accused or said co- accused is guilty of harbouring the said absconder, but no accused can be kept in jail as a hostage for the arrest of another accused person. The learned Additional Sessions Judge while passing the impugned order also ignored the fact that before taking any punitive action against any person, it is fundamental right of every citizen that not only he should know his guilt or fault but also be provided opportunity of hearing before taking a punitive action against him. Reference is made to the case Pakistan and others v. Public-at-large and others PLD 1987 Honourable Supreme Court of Pakistan 304.
8. Finally the perusal of record makes it abundantly clear that at no stage of the proceedings before the Court, the petitioners failed to appear on any date prior to 1-9-2006. There is no material on record that either of the petitioners tried to tamper with the evidence, committed an act of violence against the P.Ws., repeated the offence, or hampered or created obstacles in the way of investigation by misusing the concession of bail and in absence of any such material there was hardly any justification for the learned Additional Sessions Judge to pass such like order by cancelling the bail of the petitioners and sending them behind the bars with a single stroke of pen which is not only highly uncalled for but also unbecoming on the part of a Judicial Officer. I am, therefore, satisfied that under no canon of law, the orders passed by the learned trial Court cancelling bails of the petitioners and sending them behind the bars are sustainable, resultantly Criminal Miscellaneous No. 2664/B of 2006 as well as Criminal Revision No. 300 of 2006 are allowed and the impugned orders are set aside in terms of the earlier short order, dated 14-9-2006 reproduced above.