' Muhammad Ashraf, petitioner, has moved this petition under section 497(5), Cr.P.C. Seeking cancellation of to the accused-respondent by the learned Additional Sessions Judge, Abbottabad, vide his order dated 14-1-1993.
2. Facts relevant to the case briefly stated are that on 10-9-1992 at 1530 hours Muhammad Ashraf complainant reported to an Investigating Head Constable of Police Post P.O.F., Havelian, near Kohistan Flour Mills on the G.T. Road alleging therein that when the complainant demanded a sum of Rs,3,500 from Maqsoodur Rehman, a co-accused in the case, which the former had advanced to the latter as a loan, he started abusing the complainant's son. It is said that when the complainant tried to stop Maqsoodur Rehman from hurling abuses, he along with Duarriyaman accused- respondent herein, and Liaqat ran towards him. It is alleged that Liaqat caught hold of him while Maqsoodur Rehman gave a blow with the brisk which landed on the head of the complainant felling him to the ground. Mst. Sajida the daughter-in-law of the complainant is alleged to have been attracted to the spot but Maqsoodur Rehman also gave her kick and fist blows whereas Duariyaman caught hold of her and threw her from the roof top to the courtyard, as a result of which her right leg had been fractured. She was allegedly 10 months' pregnant and an apprehension was expressed that the child in the womb might also have died. On receipt of this report the police registered F.I.R. No, 212 dated 11-9-1992 at 9-00 hours under section 337-F(vi), P.P.C., as amended by the Qiasas & Diyat Ordinance, 1992.
3. Duarriyaman, accused-respondent; had earlier moved a petition before the learned Additional Sessions Judge, Abbottabad for pre-arrest bail which was dismissed on 3-10-1992 and he was taken into custody. The learned Magistrate, however, by his order dated 14-1.0-1992 admitted him to bail pending trial. The complainant, feeling aggrieved, moved an application for cancellation of bail which was accepted by the learned Additional Sessions Judge, and the post-arrest by the learned Magistrate was cancelled on 14-1-1993. On the same day, it appears, the accused respondent moved another application to the learned Additional Sessions Judge, Abbottabad, seeking permission to deposit the amount of "Daman" and then to be admitted to bail. The learned Additional Sessions Judge, on the same day on which he had cancelled his bail, without any notice to the complainant or the State allowed the accused-respondent to deposit a sum of Rs,8,000 by way of `Daman' and by a separate order of the same day admitted him to bail. Hence this petition for cancellation of his bail.
4. The principal grievance of Sardar Nasir Aslam Khan, learned counsel for the petitioner, is that the learned Additional Sessions Judge, Abbottabad, had first cancelled the to the accused- respondent, on 14-1-1993 but on the same day he admitted hiin to bail on the so-called offer of deposit of the amount of 'Daman' violating the principles of natural justice enshrined in the maxim "Adi alteram partem", i,e, that the accused-respondent could possibly have been admitted to bail after service of notice upon the State as well as the complainant. He also advanced some arguments in support of the cancellation of the plea of bail on merits.
5. Mr. Muhammad Aslam Khan the learned A.A.-G. Appearing on behalf of the State has supported the petition for cancellation of bail and adopted the same arguments which the learned counsel for the petitioner had advanced before me. On the other hand, the learned counsel for the accused-respondent submitted that as the offence falling under section 337-F(vi) of the P.P.C as amended, did not fall within the prohibitory clause of section 497(1), Cr.P.C., in that, it was not punishable with death or imprisonment for life or imprisonment for 10 years, therefore, the complainant and the State were not entitled to any notice of the offer of deposit of amount of compensation by way of 'Daman' and admit the accused-respondent to bail.
6. I have decided to refrain from making any observation on the merits of the case lest it should affect the case of the parties before the Court to which a fresh application for bail might be moved.
7. The contention of the learned counsel for the accused respondent, I am afraid, is not tenable. No doubt, under section 497, Cr.P.C. The Legislature by defining the offences under which the bail is not to be granted (viz. Offences punishable with death or imprisonment for life or imprisonment for 10 years) has laid down that bail should ordinarily be granted, and that only in cases of heinous offences it will be withheld but this proposition does not in any way absolve the Court of serving a notice upon the State before passing any order, merely because the person accused of offences other than those falling under prohibitory clause ought to be admitted to bail without any notice to the State and the opposite party. Under the new dispensation of the Criminal justice in the context of the offences covered by the Qisas and Diyat Ordinance, 1992 both the State and the complainant are entitled to a notice before any order is passed favourable to an accused in the case of bail. In this context, I can do no better than refer to the well-known dictum of the Supreme Court laid down in the case of "University of Dacca v. Zakir Ahmed" (PLD 1965 SC 90). While dismissing the University's appeal against the order of the High Court of Dacca, the Supreme Court of Pakistan stated the guiding principles of natural justice required to be applied while making enquiries into cases whose decision would result in consequences affecting the person, property or other right of individuals. The proposition that was laid down in this precedent case was the general consensus of the judicial opinion that in order to ensure the "elementary and, essential principles of fairness" as a matter of implication the person sought to be affected must at least be made aware of the nature of the allegations against him, he should be given a fair opportunity to make any relevant statement putting forward his own case and "to correct or controvert any relevant statement brought forward to his prejudice". The Supreme Court has already had occasion to point out in at least three cases, namely, in the cases of the Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45, Faridsons Limited v. Government of Pakistan PLD 1961 SC 537 and Abdur Rehman v. Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SC 461 that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned." This rule applies even though there may be no positive words in the statute or legal document whereby-the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness.
8. While relying on these observations I .Am not unmindful of the right of an accused person whose case is not covered by the prohibitory clause of section 497, Cr.P.C. That he is entitled to bail as of right. What I am emphasizing is that the State and the complainant, particularly under the new dispensation of justice, are certainly entitled to a notice to grant bail to such an accused. In the instant case if the learned Additional Sessions Judge, Abbottabad, was so disposed he could very well have called the Public Prosecutor the same day i,e, on 14-1-1993 and also served the complainant with a short notice of a day or two and could have passed an order of the nature which he did pass on the same day. Having not complied with this requirement of law, the order of the learned Additional Sessions Judge is, prima facie not sustainable.
9. In this view of the matter, the to the accused-respondent is cancelled. He has been taken into custody and remanded to jail. The accused-respondent would, however, be at liberty to move a fresh application for bail to the learned Additional Sessions Judge, Abbottabad. The learned Additional Sessions Judge after serving a notice, may be even for the shortest period, would pass an appropriate order on the petition so moved. The Office is directed to return the record of the case immediately to the Court of Additional Sessions Judge; Abbottabad. A copy of this order is directed to be furnished to the learned Additional Sessions Judge for his future guidance.
Bail cancelled.