IKRAMULLAH KHAN, J.- The petitioner/accused has invoked the inherent jurisdiction of this Court, by filing instant petition under section 561-A, Cr.P.C. In order to set aside the impugned judgment dated 22-9-2014 rendered by learned Judicial Magistrate-II, D.I.Khan.
2. In essence, the petitioner was charged in case FIR No,3 dated 2-1-2014 registered under section 489-F, P.P.C. At police station Cantt: D.I. Khan on the report of respondent/complainant.
3. During the course of bail proceedings, both the parties entered into written commitment, resulting in release of the petitioner on conditional bail. The petitioner, in order to pay back an amount of Rs,10,00,000 handed over a bank cheque to complainant party, but the same was not honoured on presentation to the concerned bank. The complainant on one hand reported the matter of default, in regard to the bank cheque, whereby FIR bearing No,740 was chalked out against the petitioner, while on the other hand, applied to the Court of learned Judicial Magistrate for cancellation of bail granted to the petitioner in case FIR No,3. The learned Judicial Magistrate vide its impugned judgment recalled the concession of bail already granted to the petitioner through his judgment dated 22-9-2014. Hence the instant petition.
4. The learned counsel for the petitioner contended that the impugned judgment is against law whereas petitioner was condemned unheard that the learned Judicial Magistrate has got no jurisdiction to cancel the bail of an accused in terms of provisions contained in section 497(5), Cr.P.C. As Court of Magistrate is not vested with such powers; that conditional bail is not the requirement of law and the very judgment of the learned Judicial Magistrate, whereby the petitioner was released on conditional bail, itself was against established principles of law. The learned counsel for the petitioner, in support of his arguments, relied upon the cases of Mst. Afshan Bibi v. The State (1998 SCMR 6) and Babar Afzal v. Presiding Officer and 2 others (2010 PCr.LJ 1293).
5. As against that, the learned Addl: A.G assisted by learned counsel for respondent No,2 supported the impugned judgment.
6. I have heard the learned counsel for the petitioner and the learned Law Officer assisted by the learned counsel for respondent No.2 in the light of law and available record.
7. The contention of learned counsel for the petitioner that petitioner was condemned unheard is not attractive in the peculiar circumstances of the case, as the petitioner was afforded an opportunity to defend himself, who opted to abscond and neither surrendered himself to the Court nor procured the attendance of his learned counsel.
8. The second contention of the learned counsel for the petitioner that Court of Judicial Magistrate could not exercise jurisdiction under the provisions contained in subsection (5) of section 497, Cr.P.C. Is not tenable at all, as the provisions contained in subsection (5) of section 497 Cr .P.C.
When reproduced for convenience, would read as: "A High Court or Court of Session and, in the case of a person released by itself any other Court may cause any person who has been released under this section to be arrested and may commit him to custody."
9. The express intention which one can gather from the plain reading of section 497(5), Cr.P.C.
Certainly conveys the meaning that High Court or Court of Sessions or any other Court may cancel or recall the concession of bail extended/granted to an accused.
10. The third contention of the learned counsel that no condition could be imposed on an accused while releasing him on bail in so far as the case in hand is concerned, is not tenable, as the petitioner was not released on bail on merits but on the basis of compromise, without any objection raised by the petitioner at the moment when he was conditionally released on bail, nor after his release. The conditional bail granting order dated 25-7-2014 was never challenged by the petitioner, except when his bail was recalled due to misuse of the conditions on which he was released.
11. No doubt, no strict condition could be imposed while granting bail when an accused deserves to be released on bail on merits, but when his release on bail is itself the result of some settlement, agreed upon by the accused himself, then any such condition when imposed could not be said harsh or illegal. The facts and the law enumerated in the judgments of the apex Court as well as by the honourable Sindh High Court (ibid) are not applicable to the facts and circumstances of the case in hand, however, petitioner, as stated earlier, had never challenged even his conditional release on bail before the same or any other Court, therefore, estopped to challenge it when his bail is already cancelled.
12. Generally, Courts are inclined to release accused on bail in criminal cases in which the punishment provided thereunder does not fall within the prohibitory clause of section 497, Cr.P.C., while cancellation of bail is rare phenomenon, but when exceptional circumstance is experienced by the Courts, in such situation, the Courts are left with no other option but to take recourse to the punitive provisions in order to keep balance, decorum as well as dignity and respect of Courts.
13. The petitioner did not surrender himself before the learned Judicial Magistrate on the date when his case was being heard and thereafter in this Court played the same tactics. Even today it was observed that the petitioner was not present during the course of arguments and when this Court inquired from the learned counsel for the petitioner about the petitioner, he produced a medical certificate of the petitioner, which he would have produced before the arguments. The conduct of the petitioner is deplorable one and amounts to playing mockery on the Courts. On the strict directions of this Court, at late hours, when the Court had concluded all its work except to announce orders, petitioner stood appeared on the door of the Court in hope to run away in case his petition is not accepted. In such circumstances, this Court is left with no other better option but to dismiss the instant petition, as the petitioner was required to approach the learned Sessions Court for regular bail after his surrender which the petitioner not opted for reasons best known to him.
14. The jurisdiction conferred upon this Court under section 561-A, Cr.P.C. Could not be used to circumvent the normal procedure as provided under the Criminal Procedure Code for redressal of a particular grievance. Such powers could rarely be exercised in cases, wherein law warrants interference to secure the ends of justice and to prevent the abuse of process of any Court or otherwise when it is observed by this Court that gross injustice and miscarriage has occasioned by any Court, but in the case in hand, the petitioner is not a person deserving any concession, as no injustice, illegality or irregularity could be pointed out in the impugned judgment. It is not the mandate of law to determine the fate of a criminal case in exercise of the inherent powers of this Court envisaged under section 561-A, Cr.P.C. To deviate or to do departure from the normal course and such deviation from normal course is always pregnant with risk of being led astray. In case titled Bashir Ahmad. v. Zafar-ul-Islam and others (PLD 2004 SC 298) it was held that:-- "The provisions of the section could not be used to override the express provisions of law to offer just another remedy where a remedy already exists or to circumvent the normal course of law."
15. For the reasons mentioned hereinabove, the instant petition being bereft of any merit and substance is hereby dismissed. However, the petitioner would be at liberty to apply for his release on bail in accordance with law, adopting normal course of law as envisaged under section 497, Cr.P.C, if he is arrested in consequence of the impugned judgment of the learned Judicial Magistrate.
16. These are the reasons of my short order of even date.