The facts of the case which have occasioned this revision filed under section 435/439 read with section 561-A, Cr.P.C. Lie within a narrow orbit and may be briefly indicated.
2. Applicant Rana Masood Ahmad is facing trial in a case under section 307/34, P.P.C. (Crime No.204 of 1989), North Nazimabad P.S., in the Court of 1st Additional Sessions Judge (Central), Karachi. The applicant who was on bail resided in Lahore, from where he used to come to Karachi to attend the Court on every date of hearing. However, he met with a serious accident resulting into fracture of his right fourth rib and damage to spinal cord, which. Prevented him from attending the Court. On 16-2-1991 the advocate for applicant made an application duly supported by a medical certificate seeking condonation of his absence on account of severe pain in spinal cord. The application was, however, rejected by learned Ist Additional Sessions Judge (Central), Karachi, with the following order:-- "Old case. M.C. Is not countersigned by Medical Superintendent and R & P shows that accused is in habit of giving application. Complainant Khalid Mahmood is present. APP opposed application.
Application rejected. Issue N.B.W. Against accused and notice to his surety. Bail stands cancelled."
3. On 30-5-1991 Mst. Nisar Fatima, the surety of applicant sought time for the production of applicant/accused, but this prayer was also refused with the following order passed on 1-7-1991:-- "Surety called absent. No intimation received. Accused also not appeared today. Surety forfeited to the extent of Rs.50,000. Surety to deposit Rs.50,000 in Court within seven days, failing which it will be recovered according to law."
It is in these circumstances that the applicant has challenged both the orders dated 16-2-1991 and 1-7-1991, passed by 's' Additional Sessions Judge (Central), Karachi.
4. I have heard Mr. A. Ghaffar, learned counsel for applicant and Mr. Shoukat H. Zubedi, learn d A.A.- G. For State. The latter has not supported both the orders.
5. The fact that the applicant had met with an accident is not in dispute. A copy of Discharge Certificate, issued by North Surgical Unit, Mayo Hospital, Lahore is placed on record which makes it clear that right fourth rib of the applicant was fractured. The medical certificate dated 12-2-1991, issued by DrAbdul Rauf Zakai, Physician and Surgeon, Lahore, which was disbelieved by Additional Sessions Judge recites as follows:-- "Certified that Mr.Masood Ahmad Rana son of Ali Ahmad Khan, aged 47 years is under my treatment. He is suffering from severe pain of spinal cord. He is advised complete bed rest for 10 days, i.e. '12-2-1991 to 21-2-1991."
6. The medical certificate issued by a registered medical practitioner is the simplest form of documentary evidence regarding the illness of the applicant. There was no reason to suspect the above medical certificate and if at all the learned Additional Sessions Judge doubted its correctness the proper course was to have directed the medical examination of the applicant before a competent Medical Officer at Lahore. At any rate the cancellation of bail granted to applicant on this ground was arbitrary and without any legal authority.
7. The tpisuse of concession of bail is one of the recognised grounds for' the cancellation of bail under subsection (5) of section 497, Cr.P.C., but such power has to be exercised with care and circumspection and there should be j3 satisfactory evidence on record to show that the accused was thwarting the course of justice by adopting dilatory tactics. In the present case the parties had in fact compromised and, therefore, there was no reason for the applicant to avoid attendance before the Court. The learned counsel for applicant has in fact placed on record certified copy of order dated 25-11-1991, passed by learned Additional Sessions Judge, whereby the applicant was acquitted after the parties compounded the offence.
8. The word 'discretion' in itself implies vigilant circumspection d e, therefore, when the legislature concedes a wide discretion to a Judge ora Court, it also imposes a very heavy responsibility. (Law Terms and Phrases by Mokal). What, then is "Judicial Discretion" in this context?, in the elegant, words of Benjamin Cardozo:-- .
"The Judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in all the social life. 'Wide enough in all conscience is the field of discretion that remains.' (The Nature of Judicial Process--Yale University Press, 1921)."
As remarked in 1. Bovu, Law Dictionary, Rawles III Revision, Page 685, quoted in Judicial Discretion, National College of the State Judiciary, Redo Nevada, page 14 it should always be remembered that in no case the discretion of a Judge should be the law of tyrants".
10. Having regard to the above factual and legal position,I am clear in my mind that the order dated 16-2-1991 passed by learned Additional Session Judge was improper and arbitrary, and is, therefore set aside. As a necessary corollary to Ns finding, the order dated 1-7-1991 by which the surety was directed to deposit a sum of Rs.50,OW is liable to be set aside. However. I would like to add that the procedure adopted in this behalf wax. Patently illegal. The provisions of section 514, Cr.P.C. Contemplate a notice to show cause why penalty should or should not be paid after forfeiture of bond. No notice is required before forfeiture of bond. If any authority is needed the case of Sanwan and another v. The State reported in PLD 1965 Karachi 516, may be cited with advantage, wherein it was observed:-- "It is plain from a perusal of the language of this section that it is incumbent on a Court to first declare the bond forfeit and to record the grounds for such a finding before calling upon the surety to pay the penalty thereof or to show cause why it should not be paid."
The learned Additional Sessions Judge has, therefore, clearly erred in putting the cart before the horse and thus the order dated 1-7-1991 is set aside on this ground also.
11. In the result the revision application is allowed and both the orders dated 16-2-1991 and 1-7-1991 are set aside.