' Applicant Hubdar Ali was accused of offences under section 13-E, of the Arms Ordinance vide F.I.R.
In Crime No,152 of 1992 Police Station Mehar, District Dadu. He was released on bail by an order of Special Court for Suppression of Terrorist Activities, Dadu, dated 8-9-1993, he remained absent from Court on a few dates of hearing in 1995 and was subsequently arrested and confined at Mehar Jail under orders of the learned S.D.M., Mehar purported under section 109, Cr.P.C. Thereafter, he applied for bail on 12-11-1995 and his application for bail was dismissed by the learned Special Court vide order 12-12-1995.
2. The applicant, thereafter applied for bail before this Court and by an order dated 26-3-1996 the Division Bench of this Court after finding that nonappearance before the Special Court was for reasons beyond his control released on bail, and a surety bond was executed to the satisfaction of the Additional Registrar of this Court. A letter had been received from the learned Special Court Dadu stating that the accused who had been granted bail by this Court on 26-3-1996 remained absent from the trial on 31-12-1996 and seeking permission from this Court to cancel the bail bond and forfeiture of the surety bond of the accused. It was further requested that the surety bond may be sent to the Special Court in case such permission was granted. Upon receipt of this letter my learned brother Rashid Ahmed Razvi, J., issued notice to the surety as well as Additional Advocate- General, Sindh for appearance on 29-1-1996. The parties appeared before the Court, but the matter was adjourned on two subsequent dates.
3. It does not appear quite clear as to what procedure was to be adopted when under-trial prisoner released on bail not by the trial Court itself, but by Higher Court (for the matter this Court) jumped bail and where the trial Court of the Court granting bail was required to consider and decide whether his absence on a date of hearings was ought to be condoned or which Court was competent to take action against sureties. Since such questions were likely to arise in number of cases, I decided vide my order, dated 20-3-1997 to frame the following legal questions and hear the counsel for the applicant Ayaz Soomro and the then Additional Advocate-General Mr. Muhammad Bachal Tunio in detail. I also requested Messrs Ali Nawaz Ghanghro and Issardas to assist the Court as amicus curiae.
(1) When an under-trial prisoner enlarged on bail does not appear before the trial Court, can he be taken into custody only after cancelling his bail?
(2) Whether the Special Court exercises all powers of the Court of Sessions under sections 497 and 498, Cr.P.C.?
(3) If so whether the power to cancel bail under section 497(5), Cr.P.C. Is available to a Court of Sessions irrespective of the question which Court had granted bail to an accused person and the stipulation ' in the case of a person released by itself' appearing in the said provisions is applicable only to a Court other than the High Court or Court of Sessions?
(4) In any case does the law enable the Special Court to cancel a bail granted by the High Court after obtaining 'permission' of the High Court?
(5) Whether the powers to cancel bail granted by the High Court can be exercised by a Single Judge or only by Division Bench?
4. Subsequently Mr. Muhammad Buchal Tunio informed me that he has resigned from his office and the State could be represented by Mr. Abdul Fatah Mughal, I nevertheless requested Mr. Tunio to assist the Court amicus curiae. Mr. Ali Nawaz Ghanghro, Advocate addressed the Court at length on the aforesaid questions with respect to the first question, he was of the view that it was not necessary to cancel the bail granted to an accused. In case such person did not appear before the trial Court and he could be committed to custody upon forfeiture of the bail bond furnished by him.
He referred to the provisions of sections 499 and 514 and pointed out that the appearance in Court on the date of hearing of under-trial prisoner is a normal condition of the bond in terms of section 499 and upon his non-appearance and entails forfeiture of the bond. In such event a penalty can be levied on the surety in the discretion of the Court under section 514 of the Code. He nevertheless maintained that a bond could only be forfeited by the Court before whom it was furnished. In response to specific question from the Court as to whether the trial Court could take no action against a person who had been granted bail by the High Court and furnished surety before officer of that Court, Mr. Ghanghro submitted that the trial Court could issue non-boilable warrants for his arrest and even commit into custody till such time as a question of forfeiture of the bond was decided by the High Court. He was nevertheless clearly of the opinion that the trial Court could not, in such cases, forfeit the bond itself but was required to make a reference to the High Court. He appeared to be in complete agreement with the proposition laid down in the case of Manzoor Ahmed Bhatti v. The State 1985 PCr.LJ 1558. With respect to the second and third question mentioned above, Mr. Ali Nawaz Ghanghro stated that by virtue of section 6 of the Suppression of Terrorists Activities (Special Courts) Act, 1974, the Special Courts had all the powers available to Court of Sessions exercise the original jurisdiction under the Criminal Procedure Code subject of course to such limitations as may be imposed by the Special Law. He, therefore, contended that the powers to grant bail available to Sessions Court under sections 497 and 498 were exercisable by the Special Courts subject to the limitations contained in section 5-A of the 1974 Act. Nevertheless he was clearly of the view that a Court of Sessions could not cancel bail, granted by the High Court under section 497(5) and referred to several precedents in support of his view. He contended that even if such power could be spelt out from the text of section 497(5) as a matter of judicial propriety, if not pure in law, it would be highly improper for Sessions Court to cancel a bail granted by the High Court.
5. In view of his reply to the third question Mr. Ali Nawaz Ghanghro submitted that a question of obtaining permission to cancel bail did not arise. Nevertheless in case material against the accused comes to the notice of the trial Court which might justify cancellation of bail a Court of Sessions could bring the same to the notice of the High Court for taking appropriate action. With respect to the last question he was of the view that when the power to grant bail was exercised only by Division Bench of the High Court, the power to cancel the same will also be exercisable only by Division Bench. Mr. Issardas and Mr. Muhammad Buchal Tunio also subscribed to the opinion of Mr. Ghanghro in respect of above formulations and incidently the counsel for both parties also express their complete agreement, as such there was complete unanimity in the comments among all learned members of Bar addressing.
6. Despite the unanimous opinion of the counsel and despite my gratitude for the valuable assistance received from them. I do not feel pursuaded to agree with all the propositions of law enunciated by Mr. Ghanghro and his colleagues for reasons which I shall discuss hereinafter. From my research I have been able to lay my hands on three reported judgments, one from the Lahore High Court and two from this Court which may be directly relevant to the questions involved.
7. In the case of Manzoor Ahmed Bhatti v. The State 1985 PCr.LJ 1558 the accused did not attend the trial after he had been granted bail by the Honourable High Court and thereupon the Sessions Court tried him cancelled his bail. The order of the Sessions Court was called in question before the Honourable High Court of Lahore and Muhammad Munir Khan, J. (as his Lordship then was) proceeded to hold as under:-- "Without having cancelled the bail granted by the Supreme Court, he could only issue non-boilable warrant for the arrest and production the appellant before him and that he could also proceed against the surety and accused under section 514, Cr.P.C. But he had no authority to cancel the bail."
8. The second decision is the case of State v. Piass Ali PLD 1986 Kar.
355. In this matter the accused had been granted bail by the Honourable High Court but did not appear before the trial Court on 21-3-1984. His father submitted an application for condoning his absence on medical grounds. He was directed to produce the medical certificate on the next date of hearing. On 28-4-1994 the accused appeared himself and produced the certificate but the trial Court doubted its authenticity and the accused was remanded to custody while the doctor, issuing certificate, was directed to appear on 3-5-1994. On that date the trial Court rejected the application for condoning his absence on 21-3-1984, forfeited and surety bond, issued notices to the surety and made references to the High Court for cancellation of bail. Before the High Court it was argued that the order of the trial Court, dated 18-4-1984 remanding the accused to custody amounted to cancellation of bail and could not be passed by the trial Court. The learned counsel for the State conceded this position and, therefore, without examining the question whether this legal proposition was correct the order was set aside and his Lordship was pleased to hold that the trial Court could not cancel the bail granted by the High Court unless it was enabled by the High Court itself to do so in the bail granting order. As regard the order rejecting the application for exemption from appearance it was found on merits that such rejection was not justified.
9. A third line of reasoning is reflected in the case of Muhammad Ashraf and others v. The State 1990 M LD 99. In this case the accused were granted bail by the High Court and were directed to furnish bonds in the 'sum of Rs,20,000 each to the satisfaction of this Court. After sometime the accused jumped bail and absconded for more than 4 months. The trial Court forfeited the bond, issued non-bailable warrants for their arrest and made reference to the High Court for cancellation of their bail. Qaisar Ahmed Hamidi, J., examined the question whether such reference was necessary and came to the conclusion that the powers of the High Court and Sessions Court related to the cancellation of bail were concurrent and -that in such reference to the High Court was not necessary. It was observed that:- "therefore, whether the accused jumped bail for remaining absent for about 4 months forfeited the concession extended to them, the issuance of non-bailable warrants against accused amounts to cancellation of bail and for that no reference to the High Court is necessary."
10. It may be noticed that a careful reading of the above three judgments would show a divergence of opinion on more than one point. In the cases of Manzoor Ahmed Bhatti and Piasse Ali it has been clearly held that a Court at Sessions has no power to cancel the bail granted by the High Court.
This view however, is not shared by Hamidi, J., in case of Muhammad Ashraf. Similarly in Manzoor Ahmed Bhatti's case, it has been clearly held that the trial Court could not cancel the bail granted by the Supreme Court though it can issue non-bailable warrants for the arrest of the accused. In other words issuance of warrants of arrest did not entail cancellation of bail. A contrary view however seems to have been taken by Sajjad Ali Shah (as his Lordship then was) in Piass Ali's case, where his Lordship appears to have accepted the contention that issuance of non-bailable warrants itself amounts to cancellation of bail. Hamidi, J. Also appears to have concurrent to this view in Ashraf's case.
11. It may also be pertinent to reproduce the letter from the Registrar of this Court, dated 28-12-1985 addressed to the Special Judge Central, Karachi, apparently founded upon (pinion of the then Chief Justice (Abdul Hayee Qureshi, C.J.) which has been reproduced in Muhammad Ashraf's case:-- "I am directed to refer your Letters Nos.501 of 1985 and 580 of 1985 both dated 11-12-1985 on the above subject and to say that under section 514, Cr.P.C. In cases of forfeiture of bonds for appearance, satisfaction in regard to breach of bond has been to be recorded by the Court before whom the accused is bound to appear. Under these circumstances you are fully competent to record forfeiture of the bond on account of absence of accused. You can even issue a non- bailable warrant for arrest of the absconded accused or take any other action which the law permits you to take.
' In a similar case, Criminal Bail Application No,471 of 1984 Majid Mushtaq v . The State, on a reference haN ing been made by you, the Honorable Chic Justice was pleased to pass the following orders:- ' Bail was granted by Mr. Justice Ali Nawaz Budhani for appearance before the Court or Special Judge (Central) Karachi. Under section 514, Cr.P.C. The satisfaction in regard to forfeiture of the bond has to be recorded by the Court before whom such person has to appear. No orders of the High Court are, therefore, necessary. The Special Judge could after recording such satisfaction take action in terms of the bond, and even issue non-boilable warrants. In view of what is stated above, no further orders are necessary and the application stands disposed'.
' You are, therefore, requested to desist from making reference in such cases in future and deal with them according to law."
12. The first question to be determined is whether cancellation of bail is a pre-requisite for causing the arrest of or taking action against an accused person or his suety in the event of his failure to appear before the trial Court. The expression "bail" has not been defined in the Code elsewhere but as held by the Cr.P.C. Honourable Federal Court in the case Crown v. Khushi Muhammad PLD 1953 FC 170 bail means delivery of an accused person from the custody of police (or jail authority) to the custody of the surety. It may be necessary to examine the relevant two issues of sections 497(5), 499 and 514(1) to appreciate - the correct legal position:-- "497(5) Cr.P.C.--- A High Court or Court of Sessions 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.
"499(1), Cr.P.C.--- 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 condition 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.
(2) If the case so requires, the bond shall also bind the person released on bail to appear when called for the High Court. Court of Sessions or other Court to answer the charge."
13. Indeed any under-trial prisoner enlarged on bail is required to appear before the trial Court on a date of hearing. What needs to be determined is how this obligation can be enforced. A comparison of the provisions of sections 497(5) and 199 indicates that it is the latter section which deals with the specific requirement of law. It requires that before releasing a person on nail, a bond is to be executed by such person as well as his surety undertaking that such person shall appear before the Police Officer or the Court whenever required. Such bonds have been held to. Be in the nature of contracts and breacn of the conditions stated therein entail their forfeiture. Moreover, such bonds are required to be executed not only with respect to bailable offences where bail is accepted not by a Court but by the police and a person executing it before a Police Officer is as much bound by its conditions as one who has furnished it before a Court. It, therefore, appears that the provisions of section 499 and the terms of a bond executed thereunder provide a complete mechanism for securing a person's appearance before a Court or before a Police Officer including consequences for non-appearance. Section 514 also enables penal action against a surety in such circumstances.
14. Section 497(5) on the other hand confers a specific statutory power upon certain Courts to cancel the concession of bail accorded to a person accused of a non-boilable offence. Its exercise is not dependent on the appearance or nonappearance of an accused person before a Court. This power can be exercised by a competent Court, in accordance with settled legal principles, even if the accused person regularly attends the trial Court for instance when incriminating material against the accused is found after grant of bail indicating possibility of his involvement in a heinous offence or when a higher Court finds that the lower Court exercised its discretion in granting bail on wrong principles.
15. I, therefore, agree with Mr. Ghanghro that when an accused person fails to appear before the trial Court with justifiable reason, the trial Court is fully competent to take action against him and secure his presence by issuance of coercive process i,e, non-bailable warrants and it is not necessary to cancel his bail or move another Court for such cancellation. I am fortified in this respect not only by the judgment of Muhammad Munir Khan, J. In Manzoor Bhatti's case but also by the opinion of the then Chief Justice and the precedent mentioned in the letter quoted in Para. 11 above. It may be observed that the said letter only states that whenever the accused jumps bail, action can be taken by the Special Judge (or the Sessions Judge) in terms of the bond itself and makes no reference whatsoever to the power to cancel bail.
16. On the other hand if one were to take the contrary view to the effect that action against an accused for not appearing on the date of hearing could only be taken under section 497(5) it might lead to anomalous consequences. A Court indeed has the power to seek attendance of a person accused of a bailable offence which could only be exercised under sections 499 and 514 as the provisions of section 497(5) are applicable only to those granted bail under that section and not under section 496. Perhaps this aspect of the matter was not brought to the attention of Hamidi, J., in Muhammad Ashraf's case. In Piass Ali's case the observations were premised on a concession and his Lordship never had the occasion to examine the question in detail.
17. Nevertheless I do not agree with Mr. Ghanghro in so far as he has said that provisions in terms of the bail bond can only be initiated before the Court where the bond was furnished. In the first place, one can take judicial notice of the fact that once a Court comes to the conclusion that the accused is entitled to bail, directions relating to furnishing of bond are made according to the convenience of the accused or the sureties and should not have any effect on the jurisdiction of Courts.
Moreover, the provisions of section 514(1), Cr.P.C. Are explicit. It is clearly stipulated that when a bond is for appearance of a person before a particular Court, it is only that Court which can proceed against the sureties and not the Court granting bail or the Court before whom the bond is furnished. I am, therefore, of the view that when an accused person granted bail by the High Court and having furnished a bond for his appearance before the trial Court, does not appear before the trial Court without justification, the trial Court has ample powers to proceed against him in terms of the bond, cause his arrest and upon recording his satisfaction as to forfeiture of the bond even proceed against the surety. I am, consequently, of the view that the letter of the Registrar referred in Para. 11 reflects the correct legal position and the first question stands answered accordingly.
18. In view of the findings that the cancellation of bail under section 497(5) is not necessary in the circumstances the remaining questions have become largely academic and need not be answered. I must nevertheless record my gratitude to the learned counsel and particularly to Mr. Ali Nawaz Ghanghro for the invaluable assistance rendered.
19. In view of the foregoing I would hold that reference to this Court was unnecessary and direct that the matter be placed before the learned Special Judge who would consider the application for condemnation of absence on merits and proceed to pass appropriate orders in accordance with the law.