MIR AFZAL vs TAHIR ALI and anothers
This matter arises from a petition for leave to appeal filed against the judgment of the Peshawar High Court, which had set aside the trial court's order forfeiting the bail bonds of the respondent and declaring him an absconder. The respondent was facing trial for heinous offenses under sections 302, 324, 148, and 149 of the Pakistan Penal Code 1860, and had left for abroad during the proceedings after securing exemptions from personal appearance on grounds of illness. The core legal question was whether the High Court was justified in setting aside the trial court's order when the accused had willfully absconded and abused the concession of bail. The Supreme Court held that the trial court's order was appropriate given the willful absence of the accused who had jumped bail, and consequently converted the petition into an appeal, allowed it, and set aside the impugned High Court order while directing the trial court to proceed in accordance with law. The key principle laid down is that an accused who deliberately misuses the concession of bail and absconds is not entitled to discretionary relief or exemptions from personal appearance, and trial courts are fully empowered to forfeit bail bonds and initiate coercive measures under the law.
- Whether an accused who has jumped bail and fled abroad is entitled to exemption from personal appearance before the trial court?
- Can the High Court set aside a trial court's order forfeiting bail bonds when the absence of the accused is established to be willful and intentional?
- Is a trial court justified in initiating proceedings against sureties under section 514 of the Code of Criminal Procedure 1898 upon the abscondance of the accused?
- Section 302, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 514, Code of Criminal Procedure 1898
' DEEDAR HUSSAIN SHAH, J.---Leave to appeal is sought against the judgment, dated 12-6-2000, of the Peshawar High Court, Circuit Bench, Abbottabad, passed in Criminal Revision No,2 of 2000.
2. Briefly stated the facts of this case are that Tahir Ali respondent was nominated under sections 302/324/148/149, P.P.C. Vide F.I.R. No,40, dated 5-3-1993, registered at Police Station Ghazi, District Haripur, Police submitted charge-sheet before the Court. During the trial the respondent was allowed bail by the Court charge was framed by the trial Court on 189-1994, and the respondent attended the trial Court till 1999. His learned counsel submitted an application in the trial Court on 19-4-1999 for his exemption. The trial Court allowed him exemption only for one day. Another application was moved on 3-5-1999 and again one day's exemption was granted by the trial Court.
However, on 8-7-1999 it was reported that the respondent had left for abroad, and on the statement of D.F.C. His bail bond was forfeited by the learned trial Court vide order dated, 4-5-1999.
Learned counsel for the respondent had moved another application on 23-10-1999, which was dismissed by the trial Court on 22-2-1999. It would, therefore, be appropriate to set it out here in extends.
' "The application of Tahir Iqbal submitted for exemption does not stand with reason being he had been declared absconder. The sureties present in the Court directed to submit reply within terms of section 514, Cr.P.C. To come up for reply and evidence for the date fixed."
3. Aggrieved, the respondent filed a revision in the Peshawar High Court which was accepted vide impugned judgment, dated 12-6-2000, the relevant part whereof runs as under:-- ' "I accept this petition, set aside the impugned order of the learned Special Sessions Judge, Haripur, dated 22-12-1999 and grant exemption to the petitioner from personal appearance before the trial Court. The learned trial Court is directed to proceed with the case and dispose of the same as early as possible. The petitioner will be represented by his duly appointed counsel Mr. Saeed Akhtar Khan Advocate. The non-bailable warrants of arrest issued against the petitioner and notices to his sureties by the learned trial Court are also withdrawn. The learned trial Court is at liberty to summon the accused if considered necessary at any stage of the trial, according. To law."
4. Hence this petition by Mir Afzal complainant.
5. Learned counsel for the petitioner contended that Tahir All respondent alongwith others was charge-sheeted by the police in the above-mentioned crime, which resulted in the death of Ghulam Muhammad and injuries to Jafar, Basharat, Hamid and Zaheer-ud-Din. Tahir Ali accused- respondent after releasing on bail jumped the bail and of false pretext of illness submitted applications for setting exemption from attending the Court, which were allowed by the trial Court.
The trial Court after due consideration passed the order, which was within four corners of the law but the same was set aside by the learned Judge in Chambers; that the respondent has deliberately misused the concession of bail and has proceeded abroad and at present he is in United States, with some ulterior motive so that he may serve there. The impugned order, in any case, is not sustainable.
6. Learned Additional Advocate-General, N.-W.F.P. Also does not support the impugned order and has no objection to the grant of petition for leave to appeal.
7. We have considered the arguments of the learned counsel for the parties and have also perused the record. The respondent is facing trial in heinous offence. Ordinarily in such cases bail is not granted. Be that as it may, the accused-respondent was granted bail, and on his behalf, on the ground of illness, applications were filed and reasonable exemptions were granted by the trial Court. When the trial Court came to know that absence of the accused was willful and intentional, process was issued and statement of the process-server was recorded by the Trial Court, which shows that the respondent has jumped the bail, and there is no likelihood that he will attend the Court. In these circumstances, the learned trial Court passed very appropriate order and also called upon the sureties to explain as to why their surety bonds may not be cancelled.
8. According to record, the P.Ws. Had been attending the Court, but due to the willful absence of the respondent they were not examined.
9. In view of what has been stated above, this petition is converted into appeal and allowed. The impugned order is hereby set aside. The trial Court shall proceed with the case and take action in accordance with law.