MUHAMMAD ASHRAF alias MONI vs The STATE and anothers
This matter arises from a petition seeking pre-arrest bail after the petitioner's earlier bail was cancelled and he was declared a proclaimed offender by the trial court for absenting himself from proceedings. The core legal question was whether a trial court is competent to summarily cancel bail and declare an accused a proclaimed offender upon their absence, without following prescribed statutory procedures such as forfeiture of bonds and proper proclamation. The Lahore High Court held that the trial court exceeded its jurisdiction by cancelling the bail and declaring the petitioner a proclaimed offender without adopting the mandatory procedures under the Code of Criminal Procedure 1898, noting that a trial court can only forfeit bail bonds and issue warrants to secure attendance rather than cancel bail granted by a higher court. The court laid down the principle that the cancellation of bail and declaration of a proclaimed offender must strictly follow the legal procedures prescribed, and failure to do so renders such orders null and void.
- Whether a trial court is competent to cancel bail granted by an Additional Sessions Judge?
- What is the correct legal procedure for a trial court when an accused absents himself from proceedings while on bail?
- Can an accused be declared a proclaimed offender without adopting the procedure prescribed under sections 87 and 88 of the Code of Criminal Procedure 1898?
- Section 324, Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 514, Code of Criminal Procedure 1898
- Section 87, Code of Criminal Procedure 1898
- Section 88, Code of Criminal Procedure 1898
ORDER
' SYED IFTIKHAR HUSSAIN SHAH, J.---Muhammad Ashraf petitioner has sought pre-arrest bail in case F.I.R. No,218 of 2011 dated 19-10-2011 registered under section 324/337-F(i)/34, P.P.C. At Police Station Thatha Sadiqabad District Khanewal.
2. The allegation against the petitioner is that he while armed with repeater .12-bore along with his co-accused, in furtherance of their common intention, came in the fields of the complainant where some ladies were picking cotton, made indiscriminate firing as a result of which Mst. Suraya Bibi was injured.
3. Learned counsel for the petitioner has contended that the petitioner was granted post-arrest bail by learned Additional Sessions Judge Jahanian vide order dated 13-2-2012, however the petitioner absented from the learned trial Court on 22-10-2012. Hence, his bail was cancelled and he was declared proclaimed offender; that learned trial Court was not competent to cancel the bail; that the petitioner made an application for seeking pre-arrest bail before learned Additional Sessions Judge Jahanian, who also did not look into this aspect of the case and dismissed the bail petition arbitrarily; that the order of learned trial Court is against law, therefore, the petitioner is entitled to the confirmation of his pre-arrest bail.
4. On the other hand learned DPG has opposed this petition and it is contended that the petitioner has misused the concession of bail, therefore, his bail has rightly been cancelled and no cogent reason exists to confirm the pre-arrest bail.
5. I have heard learned counsel for the petitioner, learned DPG for the State and have perused the record
6. The petitioner was admitted to bail by Mr. Muhammad Hussain Seyal, learned Additional Sessions Judge Jahanian, vide order dated 13-2-2012. The petitioner was facing the trial and case was fixed for prosecution evidence for 22-10-2012 when he absented from the Court and learned trial Court then and there declared the petitioner as proclaimed offender, cancelled his bail, issued perpetual warrants of his arrest, initiated the proceedings under section 514, Cr.P.C. Against the surety and consigned the file to the record room.
7. The petitioner was admitted to bail by learned Additional Sessions Judge, therefore, learned Judicial Magistrate/trial Court was not competent to cancel the bail. Learned trial Court could only forfeit the bail bonds and issue non-bailable warrant of arrest for procuring his attendance and could proceed against the surety under section 514, Cr.P.C. But learned trial Court exceeded his powers and cancelled the bail arbitrarily. Furthermore, on the same day, learned trial Court declared the petitioner as proclaimed offender without adopting the procedure prescribed under section 87, Cr.P.C. The petitioner could not be declared absconder without adopting the procedure prescribed under sections 87 and 88, Cr.P.C. The procedure adopted by learned trial Court while declaring the petitioner as proclaimed offender is unwarranted by law and said order has got no sanctity in the eye of law. The learned Additional Sessions Judge while dismissing the application for grant of pre-arrest bail of the petitioner also did not look into this illegality and irregularity committed by learned trial Court.
8. The learned Magistrate/trial Court should have forfeited the bail bonds and have issued bailable/non-bailable warrant of arrest of the petitioner for procuring his attendance and after satisfying himself that petitioner has absconded or has concealed himself to avoid the execution of the warrant against him, have published the written proclamation requiring him to appear in the Court and thereafter, should have declared him a proclaimed offender. But learned trial Court vide order dated 22-10-2012 observed that accused has deliberately absented himself from the Court and declared him as proclaimed offender and issued perpetual non-bailable warrant for his arrest and then consigned the file to the record room. The learned trial Court (Mr. Iqtidar Ali Khan, Magistrate Jahanian) has adopted the novel proceedings while disposing of the matter in summary manner. He is directed to remain careful in future.
In view of the above, order dated 22-10-2012 passed by learned trial Court is declared as null and void and the petitioner shall be deemed to be on bail. He is directed to surrender before the learned trial Court and submit fresh bail bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the said learned Court. Copy of this order be also sent to learned Magistrate, learned Additional Sessions Judge and the learned Sessions Judge concerned for guidance.