The facts of the case are that Mr. Azhar Hafeez learned Additional Sessions Judge, Lahore, by his order dated 27-5-1980, dismissed the bail application of the petitioners, who were already on interim anticipatory bail, on account of their non-appearance. It is admitted on record that the petitioners while being granted interim pre-arrest bail surrendered themselves before the Court.
2. The aforesaid order dated 27-5-1980 was, set aside by this Court vide order-dated 9-6-1980 and the petitioners were directed to appear before the learned Additional Sessions Judge on 12-6-1980.
While admitting the Criminal Miscellaneous to regular hearing, the petitioners were granted interim pre-arrest bail. It was directed that their bail bonds would remain effective till their bail application was decided by the learned Additional Sessions Judge on merits.
3. Since the learned Additional Sessions Judge, according to the petitioners, was to be on leave on 12th and 13th of June, 1980, therefore, they approached him on 10-6-1980 on the basis of the order passed by this Court on 9-6-1980 whereby it was held that since the petitioners had once surrendered themselves before the Court at the time they were granted interim pre-arrest bail, it was not obligatory for them to appear again at the time of confirma--tion or otherwise of their bail, unless it was so directed by the Court. The learned Additional Sessions Judge rejected their application again on the ground that they had failed to furnish any reasonable cause for their non appearance on the previous date of hearing when their bail application was rejected.
4. It has been vehemently argued by the learned counsel for the State on the basis of an order passed by the learned Additional Sessions Judge on 20-5-1980 while granting bail to the petitioners on interim basis directing them to join the investigation and to appear in the Court on every date of hearing, that there being clear direction to the petitioners they were obliged to be present on the date of hearing fixed for confirmation of their bail and the learned Additional Sessions Judge was right in rejecting their bail application.
5. According to Sardar Latif Khosa, learned counsel for the petitioners his clients could not appear on 27-5-1980, when their bail application was rejected, because of their illness and medical certificates to that effect were furnished before the Court, but the same were not taken into consideration. The short order passed by the learned Sessions Judge, however, does not indicate whether any medical certificate was furnished.
6. The question which arises for consideration in this case is: whether on account of the non- appearance of the petitioners their bail application could be rejected or otherwise it was liable to be disposed of on merits. According to law as laid down in Maulana Fateh Muhammad v. The State (PLD 1973 Lah. 874), and Sahibzada Ahmad Raza Khan Kasuri and 4 others v. The State (1974 P Cr. L J 482), it is not necessary for a person to be present on the date of confirmation or otherwise of his bail; unless the Court insists for that or otherwise it is so directed by the Court: 1n the present case, there is no doubt that the learned Additional Sessions Judge had directed the petitioners to appear in the Court on every date, but if they were absent on account of their illness on a particular date, then their appearance on a later date could be insisted by the learned Additional Sessions Judge, failing which their bail bonds could be cancelled. According to law, even in the case of non- appearance of the petitioners on 27-5-1980 the learned Additional Sessions Judge was obliged to dispose of their bail application on merits and could not reject the same summarily on account of their non-appearance. At the most their bail bonds could be forfeited. Once their bail application had been admitted to regular bearing, it was obliged to be decided on merits even in the absence of the petitioners. Further, I don't find any justification in insisting for the appearance of the petitioners on the date of confirmation or otherwise of their bail in the given circumstances of the case.
7: As such, the impugned order dated 10-6-1980, passed by the Additional Sessions Judge cannot be sustained and the same is hereby set aside. The Cr. Misc. Is hereby accepted in the terms stated above.
8. The petitioners, who are already on interim bail, would remain on bail till their bail application is disposed of by the Additional Sessions Judge on merits. They will appear before him on 29-6-1980 when their bail application, which will be deemed to be still pending adjudication, will be disposed of on merits after hearing them.
This order will be conveyed to the learned Additional Sessions Judge immediately.