IN THE HIGH COURT OF SINDH AT KARACHI
CR. B.A. NO. 490 OF 1998
Mr. Justice Muhammad Sadiq Laghari.
FOR ORDERS ON REFERENCE DATED 12.9.2002
MADE BY SPECIAL JUDGE (STA), MALIR.
Mr. Arshad Lodhi, Assistant Advocate General.
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MUHAMMAD SADIQ LAGHARI, j.- Muhammad Umar alias Umro was sent for trial under Section 13-D Arms Ordinance on the allegation that he was possessing a consignment of Arms and ammunition. After dismissal of his bail plea by the trial Court, he was admitted to bail by this Court on 16.3.1999. He furnished the surety in the sum of Rs.1,00,000/= with PR Bond in the like amount to the satisfaction of the trial Court i.e. Special Judge (STA) Malir.
2. On 12.09.2002, Special Judge (STA) Malir has sent reference for cancellation of bail of accused Muhammad Umar as he has absconded with effect from 28.5.2002.
3. We have heard the learned AAG and gone through the relevant order and reference.
4. As the bail bonds were executed before the learned trial Court i.e. Special Judge STA Malir for appearance before that Court it can take action under Section 514 Cr.P.C. Sub-Section 1 of Section 514 reads as under:-
“514. PROCEDURE ON FORFEITURE OF BOND.-(1)Whenever it is proved to the satisfaction of the Court by which a bond under this code has been taken, or of the Court of a Magistrate of the first class.
Or when the bond is for appearance before a Court, to the satisfaction of such Court.
That such bond has been forfeited the Court shall record grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.”
5. The Scheme of the provision appearing clearly from its wording is that when bond is for appearance before a particular Court that Court only can initiate proceedings under Section 514 Cr.P.C. First of all it has to record its satisfaction based on reasons, that the bond stands forfeited, then it may direct a person bound by such bond to pay a penalty or to show cause why it should not be paid. Further action is to be taken according to the scheme of the Sub-Sections 2 to 7 of Section 514 Cr. P.C.
6. For non-appearance or absconsion of the accused the trial Court is fully competent to issue warrant of his arrest. Section 92 Cr.P.C. provides for issuance of warrant in such situation.
7. As regards the power to cancel the bail Section 497(5) Cr.P.C. that area conferring the powers upon certain Courts. It reads as under:-
“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 any may commit him to custody.”
8. The scheme of the provision is that a Court other than High Court or Court of Sessions can cancel the bail of only that person who was released by it. No such restrictions have been put in respect of the powers of High Court or Court of Sessions. The concurrent legal authority has been conferred upon both of the forums by the statute.
9. In the case of Manzoor Ahmed Bhatti vs. The State, 1985 P.Cr.L.J 1558, the accused did not attend the trial after grant of bail by the Supreme Court and thereupon Sessions Court cancelled his bail. The order of the Sessions Court was challenged before the High Court of Lahore which held as under:-
“Without having cancelled the bail granted by the Supreme Court , he could only issue non-bailable 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.”
10. In the case of Muhammad Ashraf and others Vs. The State, 1990 MLD 99, the accused were granted bail by the High Court and directed to furnish surety to the satisfaction of that Court. After some time accused jumped bail and absconded. The trial Court forfeited the bond and issued non bail able warrant against them. Simultaneously, it also made reference to High Court for cancellation of bail. Mr. Justice Qaiser Ahmed Hamidi, (as he then was) examined the question and came to the conclusion that the powers of the High Court and Sessions Court related to the cancellation of bail were concurrent, therefore such reference by the Sessions Court to the High Court was not necessary. He 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.”
11. The third case relating to the topic was the State Vs. Pias Ali, reported in PLD 1986 Karachi 355 in which the trial Court (Session Court) remanded to custody the accused who was released on bail by the High Court. The order was challenged before the High Court which observed as under:-
“There is no dispute about this fact that if the bail is granted by a superior Court in a case which is pending before the trial Court and no provision is made in the order of bail enabling the trial Court to cancel the bail on its own, then the trial Court shall not cancel the bail and if such action was warranted due to any valid reason then a reference will have to be made to the superior Court granting the bail for its cancellation.”
12. The careful reading of the above judgments shows divergence of opinion on more than one points. In the case of Manzoor Ahmed Bhatti it has been held that Court of Sessions has no authority to cancel the bail granted by Supreme Court. However it could issue non bailable warrant for the arrest and production of the accused, whereas in Karachi case it was held that Sessions Court enjoying the concurrent powers could cancel the bail granted by the High Court. It was further observed that issuance of non-bailable warrant amounts to cancellation of bail.
13. In the case of Pias Ali High Court held that trial Court which was Sessions Court was not competent to cancel the bail granted by the High Court unless a provision was made in the order of High Court eventually the trial Court to cancel the bail if warranted by valid reason.
14. With utmost regards, in our opinion the view that Sessions Court has no authority to cancel the bail granted by the High Court or Supreme Court even when the accused does not attend a trial in violation of the terms of bond executed u/s 499 Cr.P.C. can not be agreed to.
15. On acceptance of that view the Sessions Court would not remain on same pedestal with the High Court where the first part of Sub-Section 497(5) has placed it conferring upon both of the forums the concurrent powers The power of Sessions Court would become subject to restriction like the courts put by the provision in second category. The statutory concurrent powers of Sessions Court to cancel the bail under Section 497(5) can not be taken away by the judicial pronouncement. Also the proposition of authorization by making provision in bail order enabling the Sessions Court to cancel the bail is not acceptable specially when no provision relating to such delegation of powers exist in the Code.
16. It will be more appropriate to discuss the matter further also. The withdrawal of the concession of bail extended to a person is normally considered on the following grounds:-
1. That the bail was granted erroneously applying wrong principles
2. That the development relating to merits having accrued after the grant of bail has justified its cancellation.
3. That the accused has misused the concession of bail.
4. That the accused has jumped the bail.
17. The cancellation on the ground at Serial No.1 can be considered by the Court which release the accused on bail or the higher Court. Obviously, in same circumstances on the basis of same material neither High Court can sit over the order passed by the Honourable Apex Court nor the Sessions Court can take decision about the propriety and justification of the order passed by the High Court. The matter is of judicial propriety.
18. For withdrawal of concession of bail for the reasons at Sr. No..2,3&4. the Courts other than High Court or Court of Sessions have limited powers to the extent of cases where the bail was granted by them only. The High Court and the Sessions Court both have concurrent jurisdiction to take decision about the justification for cancellation of bail. Their powers are not subject to restrictions. However judicial propriety demands that Sessions Court for being the lower forum will be in a better position to appreciate the facts and circumstances and pass an order. This view gets strength from the order of the Honourable Supreme Court in the case of Abdul Sattar Vs. Muhammad Yaqoob and others reported in 1970 ACMR 786. Anyway the concurrent powers will remain in tact.
19. The wording of Sub-Section 5 of Section 497 Cr.P.C. reflects that the arrest of a person in the case where he was released on bail and committing him to custody amounts the cancellation. However, the circumstances in which the person is arrested and the powers of the forum effecting or directing such arrest are not to be lost sight of. As the provisions of Section 92 and 514 Cr.P.C. are independent of Section 497 Cr.P.C. even Magistrate being trial Court can pass orders, if warranted, under Section 92 & 514 Cr.P.C. and direct the arrest of a person released on bail irrespective of the forum having granted the bail. Thus in every case the arrest by itself in the same case will not amount the cancellation of bail. However, if the trial Court, while exercising powers as Sessions Court, directs or effects the arrest of a person under Section 92 or 514 Cr.P.C. it may amount cancellation of bail if the Court mentions it expressly. The position will be different if the arrest has been ordered or effected by the Court having no power to cancel the bail. In such circumstances a reference for cancellation of bail has to be made essentially to the forum competent to pass such orders.
In view of above findings the learned Special Judge (STA) Malir being competent to exercise powers of Sessions Judge under Section 497 and the powers of trial Court under Section 514 and 92 Cr.P.C. was not required to make the reference. With this order the reference is disposed of. JUDGE JUDGE