' SYED ZAWWAR HUSSAIN JAFFERY, J.---This petition, under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973. Has been filed against the judgment dated 11-2-2009, whereby bail was granted to the respondent-Mujeeb Khan subject to furnishing bail bonds in the sum of Rs, 200,000 with two sureties in the like amount to the satisfaction of learned trial Court.
2. Mr. Niaz Ahmed Rathore, learned Advocate Supreme Court, appearing on behalf of the State, has submitted that the respondent was not entitled for concession of bail on medical grounds as the disease migraine headache is not detrimental to health and life; that after grant of bail the respondent has jumped the concession of bail and the non-bailable warrants of arrest were issued by this Court; that the show-cause notice has been issued to the surety and the surety furnished by the respondent has been forfeited vide order dated 11-6-2009, passed by this Court; that the respondent and surety failed to appear before this Court after issuance of notices and the non- bailable warrants have been returned unexecuted; that the non-bailable warrants issued against the respondent, who is resident of Zarghunkhel Darra Adamkhel FR Kohat, have been returned with the endorsement that the accused has been shifted to unknown place due to army operation and could not be traced out and that the delay in conclusion of trial is not for any fault on part of the prosecution or either by the learned trial court or by owing to adjourn Ments sought by the petitioner.
3. We have heard learned Advocate Supreme Court, appearing on behalf of the State, at.
Considerable length and gone through the entire material available on record with his able assistance. The petitioner was granted bail on medical grounds by the learned Peshawar High Court, Peshawar. For facility of reference, report of the Medical Board, which examined the petitioner is reproduced hereinbelow:- "The Standing Medical Board is of the opinion that he has history of migraine headache. History of getting fainting attacks. He needs treatment and assessment in a teaching hospital."
' Since the notice of appearance was issued to the respondent by this Court but he failed to appear and his surety also failed to produce the respondent-accused, therefore, the surety furnished by the respondent was forfeited. The notice has also been issued to surety to show cause as to why the forfeited amount of surety be not recovered to him. The learned trial Court shall initiate such proceedings regarding recovery of forfeited amount as envisaged under section 514, Cr.P.C. This Court also issued non-bailable warrants of arrest against the respondent to be served through Special Court (CNS), Peshawar for execution. The non-bailable warrants were entrusted to the Assistant Political Agent, FR Kohat through. Assistant Director, PS ANF, Kohat but the same have been returned unexecuted with the endorsement that during army operation in Dara Adamkhel the respondent-accused has been shifted to unknown place and could not, be traced out. It is manifest that respondent is avoiding to appear before the learned trial Court as well as before this Court due to migraine headache. He was needed treatment in a teaching hospital and the learned High Court granted bail on account of medical treatment coupled with that the respondent was in jail for the last two years. The learned High Court neither observed that the delay in conclusion of trial rests upon the prosecution nor the reference of diary has been mentioned in the impugned order. Since the respondent has failed to appear before this Court despite notice and non-bailable warrants issued against the respondent have been returned unexecuted and he has been shifted to unknown place, therefore, the presence of the respondent-accused before the learned trial Court as well as before this Court has become impossible and this matter cannot be pending for an indefinite period.
4. Resultantly, the impugned order dated 11-2-2009, passed by, Peshawar High Court, Peshawar is set aside and the concession of bail, extended to the respondent-accused, is recalled. Learned trial Court is directed to proceed with the case in accordance with law. This petition is converted into appeal and same is allowed.
Bail cancelled.