This revision application filed under section 439 Cr.P.C, involves a somewhat important -point of law on which there does not seem to be any direct authority of our own High Court.
2. Applicant Jiwano who is facing trial before Ist Additional Sessions Judge, Sukkur in Crime No. 56 of 1985, Daharki Police Station, under section 302 P.P.C. Was on bail when on 8-5-1990 his bail was cancelled and he was taken into custody mainly due to absence of his Advocate with the following order: "Accused present on bail. A.P.P. Present. Complainant is present. Adjournment application moved by accused. Order on it rejected. The P.Ws. Were present on the last date of hearing bait case could not proceed as the original report riled by D.C. Today there is no intimation for learned 'D.C.
Therefore it shows that accused is avoiding to proceed the case intentionally. His bail bond forfeited. He is remanded to custody. To be produced on 21-5-90. Issue N.B.W against PW s Ali'
Muhammad, Faiz Muhammad and Allah Wadhayo Case put of to 21-5-1990 and summons to R. PW s. Call for Chemical report."
This order is the subject-matter of the present revision application.
3.. In Law Lexicon the word `bail' is defined as meaning to set at liberty a person arrested or imprisoned on security being taken for-the appearance on a day and at a place certain, and such security is called bail - because the party arrested or imprisoned is delivered into the hands of those who bind themselves for his forthcoming, in order that he. May be safely protected from prison. As observed in Crown v. Khushi Muhammad, reported in PLD 1953 F.C. 170, the basis.
Conception of the word "bail" is release of a person from the custody of police (or prison) and delivery into the hands of sureties, who undertake to produce him in Court whenever required to- do so. This is borne out by the forms of bond and notice to surety given in Schedule V of the Code of Criminal Procedure, 1898. The language of section 499, Cr.P.C. Again makes it clear that before any person is released, on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person and, when he is released on bail, by one or more sufficient sureties conditioned, that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as, the case may be. Admittedly the applicant attended the Court regularly and he was present is Court on the day when his bail bond was forfeited due to absence of his Advocate. The bond which was essentially for the appearance of applicant/accused could only be forfeited after the accused failed to attend the Court without any just cause and not otherwise.
4. It appears that the learned Additional Sessions Judge had in mind the provisions of subsection
(5) --f section 497 Cr. P.C. And he cancelled the bail of applicant-as in his opinion the applicant was impeding the course of justice: The record, however, speaks otherwise. The order sheet dated 7-4-1990 makes it clear that adjournment on this date was sought by A.P.P. And it was on his request that the case was put of to .8-5-1990. Again no opportunity was provided to applicant before cancelling his bail. I cannot do better than quoting the weighty observations of the Supreme Court made in the case of Ghulam Ahmad v. Bashir Ahmed and others, reported in 1973 SCMR 129, in the following terms: "We are not impressed by this argument. The High Court has rightly issued notice to the respondents to show cause why their bail should not be cancelled. Whatever the reason for which bail had been allowed to the respondents, the cancellation of that bail meant the curtailment of their liberty and therefore, they had a right of being heard."
5. The opportunity of being heard must be real, fair and reasonable. The applicant simply sought an -adjournment on the ground of absence of his Advocate and this exercise at no stretch of imagination could be termed as an impediment to the course of justice.
6. The impugned order was, therefore, passed in complete disregard of the provisions of law and is liable to be set aside on both the above scores. In the result the revision application is allowed and the impugned order is set aside. The Ist Additional Sessions Judge, Sukkur is directed to issue release writ of the applicant forthwith, who shall continue on the same bail.
7. By a short order dated 12-7-1990, I had allowed this revision application. These are the reasons for the said order.