MAZHAR HUSSAIN vs The STATE and others
This criminal appeal arose out of a petition for leave to appeal against the order of the Lahore High Court recalling pre-arrest bail granted to the petitioner in a case registered under Sections 17 and 22 of the Emigration Ordinance 1979. The core legal question was whether the High Court was justified in recalling pre-arrest bail on the ground of the petitioner's alleged abscondence when the trial court forfeited his bail bond upon a single non-appearance. The Supreme Court observed that the trial court reached its conclusion regarding the petitioner's abscondence without following the required legal procedure, noting the absence of any execution report concerning previously issued arrest warrants. Consequently, the Supreme Court held that the High Court's cancellation order was legally unsustainable. Converting the petition into an appeal, the Supreme Court set aside the High Court's order, restored the pre-arrest bail, and directed the trial court to conclude the trial expeditiously.
- Can pre-arrest bail be recalled on grounds of abscondence without proper procedure and execution reports for arrest warrants?
- Is a single non-appearance sufficient for a trial court to hold an accused as an absconder for the purpose of cancelling bail?
- Section 17, Emigration Ordinance 1979
- Section 22, Emigration Ordinance 1979
- Section 514, Code of Criminal Procedure 1898
ORDER
1. MANZOOR AHMAD MALIK , J.---Crl. M. A. No. 337-L of 2017: For the reasons mentioned in the application, the same is allowed and delay in filing the criminal petition is condoned.
2. Petitioner seeks leave to appeal against order dated 21.03.2017 passed by the learned Lahore High Court in Crl. Misc.
2. No.2974/BC of 2017. Being accused of case FIR No.403/2015 dated 18.03.2015 offence under sections 17 and 22 of the Emigration Ordinance, 1979, registered at Police Station FIA/AHTC Lahore, the petitioner was earlier allowed bail before arrest by the Lahore High Court vide order dated 06.06.2016 passed in Cr 1 . Misc. No.6629/B of 2016, which was recalled through the impugned order.
3. We have heard learned counsel for the parties at length and have perused the available record of the learned trial Court as well as the impugned orders of the learned High Court.
4. Initially the petitioner who is accused of the afore-mentioned FIR approached the learned trial Court for grant of bail before arrest which was refused to him. Thereafter, the petitioner approached the learned High Court and he was allowed pre-arrest bail vide order dated 06.06.2016. On 21.10 2016, when the petitioner failed to appear before the learned trial Court, the learned Court passed the order forfeiting the bail bond of the petitioner and ordered to carry out proceedings against the surety under section 514, Code of Criminal Procedure and non-bailable warrants of arrest were also ordered to be issued against the petitioner. Afterwards, the complainant of the case filed a petition for cancellation of bail of the petitioner before the learned High Court on the ground of abscondence of petitioner from trial court which culminated in A order dated 21.03.2017, whereby pre-arrest bail granted to the petitioner in the aforesaid FIR was recalled. Having gone through the order of the learned trial Court dated 21.10.2016 whereby bail bond of the petitioner was forfeited, we are of the view that the learned trial Court has jumped to the conclusion qua the abscondence of the petitioner without observing required procedure inasmuch as there is no report as to why the warrants of arrest against the petitioner issued on 04.10.2016 were not executed. In these circumstances, the impugned order of the learned High Court whereby bail before arrest of the petitioner was recalled is not justifiable in law. Considering all these circumstances, we convert this petition into an appeal and allow the same. Consequently, the impugned order of the learned High Court is set aside and the order dated 06.06.2016 whereby pre-arrest bail of the petitioner was confirmed by the learned High Court is restored. However, since this case pertains to the year 2015, therefore, the learned trial Court seized of the matter is directed to ensure its conclusion expeditiously. It is clarified that if the appellant or anyone acting on his behalf is, in any way, delays the conclusion of trial, the other side (State or the complainant) shall be at liberty to file a petition for cancellation of bail granted to the appellant.