ISFANDIYAR vs The STATE
This criminal revision petition challenges an order passed by the Sessions Judge, Diamer, which recalled a post-arrest bail previously granted to the petitioner by a Judicial Magistrate. The core legal question was whether a Judicial Magistrate possesses the jurisdiction to grant bail in cases exclusively triable by a Sessions Court, and whether a Sessions Court can summarily recall such bail without providing the accused an opportunity to be heard. The Court held that while the Judicial Magistrate’s initial order granting bail was legally incorrect based on prevailing precedent regarding the Magistrate's lack of jurisdiction in such matters, the Sessions Judge’s order recalling the bail was also flawed because it was passed without affording the petitioner a right of audience. The Court established the principle that even where an initial bail order is legally infirm due to lack of jurisdiction, a court cannot summarily cancel or recall that bail without providing the accused a fair opportunity to be heard, thereby ensuring adherence to the principles of natural justice and due process.
- Does a Judicial Magistrate have the jurisdiction to entertain and grant a bail petition in a case exclusively triable by a Sessions Court?
- Can a Sessions Court recall a bail order granted by a Judicial Magistrate without providing the accused an opportunity to be heard?
- Is an order recalling bail valid if passed without notice to the accused?
- Section 439, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 471, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 409, Pakistan Penal Code 1860
- Section 406, Pakistan Penal Code 1860
- Section 202, Pakistan Penal Code 1860
- Section 201, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' MUHAMMAD ALAM, J.---This petition under section 439 read with section 561-A, Cr.P.C. Has been directed against the impugned order dated 03-09-2015, passed by the learned Sessions Judge Diamer, in Sessions Case No,112/2015.
2. The facts of the case in hand are that learned Judicial Magistrate granted bail in favour of the petitioner/accused in the case of FIR No,70/2014 of Police Station City Chilas, District Diamer. The said FIR contained the following offences:- ' 471/468/420/409/406/202/201/34, P.P.C.
Petitioner filed an application for his post arrest bail before the Judicial Magistrate Chilas, who through his order dated 27-11-2014, allowed the paid petition and directed for release of petitioner on bail. Police of the investigation branch of police Diamer submitted challan of the case in the Sessions Court, routing the same through the Judicial Magistrate Chilas. The Sessions Judge, who was the trial court of the offences of above referred FIR, opted to recall the post arrest bail grant order dated 27-11-2014. Petitioner felt aggrieved from the order dated 03-09-2015 of the Sessions Judge Diamer and has filed this petition.
3. We have heard learned counsel for parties. Learned counsel for petitioner argued that the impugned order is wrong as is against the normal practice of the courts in Gilgit-Baltistan. Judicial Magistrates in Gilgit-Baltistan normally grant bail facilities to all the accused in the cases which are exclusively triable by the Sessions Courts. On the other hand, learned Deputy Advocate General opposed the views of the learned counsel for petitioner and argued that in view of the recent precedent law, a court of Judicial Magistrate, who is exercising powers of committal Magistrate, has no powers to entertain a bail petition in a case exclusively triable by the Sessions Court.
Learned Deputy Advocate General relied on case law, reported in Cr.PLA No,21/2015 of SAC GB, in support of this version.
4. It is not disputed that prior to the above referred judgment of honorable Supreme Appellate Court Gilgit-Baltistan, the bail matters in the cases exclusively triable by the Sessions Court were heard and decided by the Judicial Magistrate before submission of challan of such cases to the said trial court through Judicial Magistrate.
5. We are of the opinion that the learned Judicial Magistrate granted bail facility to the petitioner in the light of practice that prevailed in the region, prior to the above referred precedent law, therefore, we hold that the said order dated 27-11-2014 of Judicial Magistrate Chilas is although incorrect, but at the same time impugned order is also incorrect because the same was passed without giving hearing to the petitioner. Once it is not disputed that when the petitioner was free in the light of order dated 27-11-2014 of the Judicial Magistrate, the impugned order could not be passed without giving any hearing to the petitioner. So, we suspend the operation of the impugned order till the learned trial court gave hearing to the petitioner and the learned trial court is then free to pass any order. We direct petitioner to appear before the trial court till 14-05-2016, with an application for pre-arrest bail. In case petitioner fails to appear in the trial court on or before the said date, with an application for pre-arrest bail, the impugned order will become operative with its full force. Petition is allowed accordingly. This file be consigned to record.