MUHAMMAD RAFIQ and anothers vs THE STATE
This matter arises from a criminal revision petition directed against the order of the Additional Sessions Judge, Burewala, which cancelled the post-arrest bail previously granted to the petitioners by the Judicial Magistrate. The core legal question revolves around the legality of cancelling bail without providing an opportunity of being heard to the accused and whether bail can be cancelled in offences not falling within the prohibitory clause without sufficient grounds. The Lahore High Court held that the order of the Additional Sessions Judge was illegal as it was passed behind the back of the petitioners without proper service of notice or a finding of wilful absence, violating the fundamental principle that no one shall be condemned unheard. The Court established that cancellation of bail, which curtails a citizen's liberty, requires strict adherence to natural justice, and that bail granted for offences not falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 is the rule, with refusal being the exception. Consequently, the revision was accepted, the bail cancellation order was set aside, and the original bail order of the Judicial Magistrate was restored.
- Can bail granted to an accused be cancelled without affording them an opportunity of being heard?
- Does an order of bail cancellation passed without establishing the wilful absence of the accused violate the principles of natural justice?
- Is the grant of bail the rule and refusal the exception for offences that do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Section 337-A(i), Pakistan Penal Code 1860
- Section 337-A(ii), Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 337-F(v), Pakistan Penal Code 1860
- Section 337-L(ii), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' The brief facts of the case are; that the petitioners Muhammad Rafiq and Muhammad Aslam alias Achhu were named as accused in case F.I.R. No,464 of 2000 which was registered at Police Station Gaggo, District Vehari on 3-12-2000 under sections 337-A(i)(ii), 337-F(i)(v), 337-L(ii)/34, P.P.C. After the investigation of the case the petitioners were granted bail by the learned Judicial Magistrate, Burewala vide order, dated 28-3-2001. The complainant Muhammad Rafiq moved an application for cancellation of bail before the learned Additional Sessions Judge , Burewala on 3-4-2001. The said application was allowed by the learned Additional Sessions Judge, Burewala vide order, dated 11-5-2001 and cancelled post-arrest bail granted to the petitioners by the learned Judicial Magistrate. The petitioners moved an application for pre-arrest bail before this Court which was converted into a revision petition vide order, dated 18-5-2001 of this Court in accordance with the principle laid down in Bahadur Khan v. Alam Khan (PLD 2000 Kar. 74).
2. I have heard the learned counsel for the parties and have also gone through the impugned order of the learned Additional Sessions Judge, Burewala. The bare perusal of the order shows that it was passed behind the back of the petitioners without hearing them. The learned Additional Sessions Judge has nowhere mentioned that the absence of the petitioners was wilful or they had been served with a notice and had not turned up. The Additional Sessions Judge has chosen to write one sentence about the absence of the petitioners which is being reproduced as under: "Sufficient intimation to respondents No,1 and 2 have been made".
' How the intimation was made to the petitioners and who had served any notice to the petitioners has nowhere been mentioned in the impugned order. , Cancellation of bail means curtailment of liberty of a citizen and the grounds for cancellation of bail are entirely different from those of grant of bail. The superior Courts of this country have time and again been laying guidelines vis-a-vis the principles regarding the cancellation of bail. It is a settled principle of law that nobody can be condemned unheard and bail granted to a person cannot be cancelled until and unless he has been served with a notice and he has been heard or he avoids to appear in the Court wilfully. No such material is available against the petitioners in the case. Even otherwise none of the offences allegedly to have been committed by the petitioners falls within the prohibitory clause of section 497, Cr.P.C. And in such like cases the grant of bail is 'a rule and refusal is an exception.
3. The learned Additional Sessions Judge has also mentioned that the petitioners had been threatening the first informant after their release on bail. In that case he should have directed the complainant to move for cancellation of bail before the learned Judicial Magistrate who had granted the bail and should not have taken up the matter himself.
4. As the order of the learned Additional Sessions Judge has been passed against the settled principles of law, therefore, I accept this revision and set aside the order, dated 11-5-2001 passed by the Additional Sessions Judge, Burewala and restore the order of the Judicial Magistrate, dated 28- 3-2001 whereby the petitioners were granted bail.