1. Through this criminal revision applicants namely Bakht Ali and Muhammad Akram facing trial under sections 302/304, P.P.C. (Qisas and Diyat) Ordinance have impugned order, dated 19-6-2000 passed by 6th Additional Sessions Judge Karachi (South). whereby, the trial Court forfeited the bail bond, remanded them to tie Jail Custody. It is contended by the learned counsel that both the accused were present on the said date but their counsel for some reasons could not appear. It is contended that forfeiture of bond and the action of remanding the applicants to Jail custody is illegal cannot be sustained. In support of his contention he has relied upon the case of Nasir Khan and another v. The State (1991 PCr.LJ 19). During the course of arguments, learned counsel for the applicant also undertakes to proceed with the matter properly without seeking any further adjournment. Mr. Habib Ahmed, Assn. A.-G. has frankly conceded to the arguments of the learned counsel for the applicants. He further submits that for offences entailing capital punishment accused, as a matter of right, is entitled to be represented by a pleader.
2. I have heard the arguments and perused the record, the applicants are facing trial in F.I.R. No,123 of 1997 of Police Station Kalri, Karachi, South, for offences referred to above.
3. On 19-6-2000, when accused persons and prosecution witnesses were present in Court, but counsel for accused did not appear. The learned trial Court passed order, which is as follows: "Case called, both accused are present on bail P.Ws. namely A.S.I. Munir and D.S.P. Khawar Akber Shaikh was called from Tando Muhammad Khan. They are in attendance. On the last date of hearing i,e, 30--5-2000 both the witnesses were present but no defence counsel appeared. About whole day there was no response accused were asked to hence show-cause as to why their bail bond should not be forfeited. Accused had no plausible reasons for not proceeding the case despite of attendance of the witnesses who has been called through Home Secretary. Government of Sinclh by using of coersive process. Looking to the fact that previous Advocate Mr. Muhammad Arif is also called absent and Mr. Salahuddin Gundapuri, Advocate is also absent. Un-name application left without disclosing registration number and name of the applicant hence application stands rejected. Bail bond forfeited. Accused remanded to jail custody due to not proceedings with the case. Put off to 10-7-2000."
4. From perusal of the above order, it appears that the learned trial Court in order to expedite the proceedings passed the order, which has been impugned in this revision.
5. The purpose of taking personal bond from the accused person or bond by one or more sufficient sureties as per section 499, Cr.P.C. is to ensure that accused person. who is being released on such bond, shall attend at the time and place mentioned in the bond and shall continue to attend unless otherwise directed by the Police Officer or the Court as the case may be.
6. Mere fact that a lawyer appointed by an accused person for any reason chooses not to appear on a date fixed for the trial, is not a cause recognized under the law warranting forfeiture of bond entailing remand of accused to judicial custody.
7. Once an accused person is admitted to bail, he can only be re-arrested/remanded to jail, in case, he is unable to furnish surety, his bail is cancelled under section 497(5), C.P.C. or he is convicted after the trial. Admittedly, such being not the situation, the impugned order cannot be sustained.
8. In somewhat similar circumstances, in the case of Nisar Ahmed Khan and another (supra) where the Advocate for the accused failed to appear on appointed date, the trial Court forfeited the bond and bail was cancelled. The following observation was made by the Court at page 19: "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."
9. The revision filed against such order was allowed and it was held at page 18 that "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.
10. Though, in the case in hand, the applicants were asked to show-cause as to why their bail bond should not be forefeited on failure to reply satisfactorily the bond was cancelled and they were remanded to jail. As observed in earlier part, non-appearance of counsel for accused does not furnish a just ground to forfeit the bond.
11. In a situation, where a counsel does not attend the Court on appointed date, he may be guilty of Professional Misconduct and liable to be dealt with according under the Legal Practitioners and Bar Councils Act,, 1973 but the accused cannot be made to suffer on such account.
12. Another aspect that has been lost sight by the learned trial Court is that right of an accused person to be defended by a pleader is recognized under section 340(1), Cr.P.C. under Para.VI of Chapter Vii of the Federal Capital and Sindh Courts Criminal Circulars, [Criminal Circulars] accused person, who is liable to death sentence, as matter of right is entitled to be defended by a Legal Practitioner even at State expenses. In cases where the counsel appointed by the accused person fails to appear and defend the accused then it is the duty of the Court to give proper opportunity to the accused person to engage counsel of his choice, and in case he is not in a position to bear such expenses, the Sessions Court is required to engage the Counsel to undertake the defence of such accused person at the State expenses for reference see the cases as reported in Hussain Bakhsh v.
13. State (1971 PCr.LJ 1331), Muhammad Shard v. State (PLD 1973 Lah. 365) and Niaz Ahmed v. State (1984 PCr.LJ 1054).
14. In a situation where; however, it appears from the conduct and attitude of an accused person that counsel engaged by him 'has deliberately failed to appear to absence of a counsel is a calculated move to cause harassm ent to the witnesses or with an aim to prolong the trial and to defeat the cause of justice, such tendency and malpractice can effectively be checked by imposing heavy cost in appropriate cases by liberal use of powers under section 344, Cr.P.C. In case where the Court is of the opinion that the conduct of accused is motivated to prolong the trial then best course to follow the guideline given in the case reported as Iftikharuddin v. Crown (PLD 1954 Lah. 547) wherein it was held at Page 550 that if on the other hand, the accused contumaciously refuse to accept the offer of legal advice made to him, the proper procedure is to inform him that if representation arrangement by the Court is not acceptable to him, he must conduct his case." Such course is also in consonance with criminal circulars referred to above. In the instant case neither the accused were given reasonable time to engage a counsel themselves or accept counsel engaged by the Court to plead their cases nor they were warraned, that on their failure to appoint a Pleader within reasonable time or accept a Pleader appointed by the Court, then accused must conduct their case themselves. Such course was not followed in the instant matter.
15. The upshot of above discussion, this revision application is allowed and the impugned order is set aside. The Applicants will be treated on bail on the same terms and conditions on which they were admitted to bail on the same bonds and sureties. Learned trial Court is directed to proceed with the matter and decide strictly on merits in accordance with law. Learned counsel for the applicants is directed to proceed With the matter properly without . seeking any adjournment as per undertaking.