LUQMAN AKHTAR vs THE STATE
This bail application arose after the trial court cancelled the petitioner's previously granted bail due to his alleged misuse of the concession by prolonging trial proceedings through frequent adjournments and changes of counsel. The petitioner was charged under sections 354 and 452 of the Pakistan Penal Code 1860, with additional charges under section 18 read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979. The core legal question was whether the trial court was justified in cancelling bail based on the conduct of the accused and his counsel during trial proceedings. The High Court held that while the trial court had expressed frustration over delaying tactics, the absence of defence counsel could not be directly attributed to the petitioner to the extent of justifying the withdrawal of bail. Emphasizing that the petitioner had already been granted bail and relying on the assurance of regular appearance by counsel, the Court restored the bail. The key principle laid down is that a petitioner should not be penalized for the absence of their counsel, and bail should not be cancelled solely on that basis without clear evidence of abuse of process by the accused.
- Can bail be cancelled solely due to the absence of the defence counsel during trial proceedings?
- Is a petitioner liable for the delaying tactics of their counsel in the context of bail cancellation?
- Does the misuse of the concession of bail by an accused justify the cancellation of bail after it has been granted?
- Section 354, Pakistan Penal Code 1860
- Section 452, Pakistan Penal Code 1860
- Section 451, Pakistan Penal Code 1860
- Section 18, Offence of Zina (Enforcement of Hudood) Ordinance 1979
- Section 10, Offence of Zina (Enforcement of Hudood) Ordinance 1979
ORDER
' This application for bail after arrest has been filed on behalf of Luqman Akhter petitioner who is involved in a case arising out of F.I.R. No.24 of 2001 registered on 12-5-2001 in Police Station Chakrala, District Mianwali. The F.I.R. Was initially registered under sections 354/452, P.P.C. While section 451, P.P.C. As well as section 18read with section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979 also appear to have been added later on. The F.I.R. Was lodged by one Mst. Kaneez Fatima wife of Amir Afzal stating therein that on 9-5-2001 while she was present in the house of younger brother of her husband, namely, Abdul AZiz, Luqman Akhtar accused entered her room, fell her on the cot by catching hold of her from the breast and tried to open her Shalwar in order to commit Zina-bil-Jabr and as a result of which the string of her shalwar was broken. On hearing the noise Asmat Khatoon, wife of Abdul Aziz and Abdul Aziz himself (younger brother of her husband) reached there and on seeing them the accused fled away. Hence the case.
2. Arguments have been heard and record perused. It appears from the record that the learned Additional Sessions Judge, Mianwali had admitted the petitioner to bail after arrest on 2-7-2001.
Subsequently, after conclusion of investigation, the case was sent upto the Court of Session for trial and later. It was entrusted to the learned Additional Sessions Judge, Mianwali for trial. The charge was framed on 12-3-2002 and then different dates were fixed for the prosecution evidence. It appears that different P.Ws. Appeared on a number of dates of hearing but either the learned defence counsel did not appear or otherwise the petitioner/accused sought adjournments on the ground that the writ petition filed by him was pending before the Honourable High Court. On 25-4- 2002, three P.Ws. Were in attendance while the learned defence counsel was not present and it was stated that the lawyers were on strike. Hence the learned trial Court fixed the next date as 8-5-2002 for the prosecution evidence. On the next date all the P.Ws. Except Investigating Officer, were present but the accused/petitioner filed an application that his counsel was not ready to cross- examine the witnesses and sought an adjournment. In its order dated 8-5-2002, the learned Additional Sessions Judge, Mianwali observed that the accused had changed four counsel and had been prolonging the case on different pretexts and in this way he had misused the concession of bail. The learned trial Court observed that as the accused was using delaying tactics and was abusing the process of law, therefore, he had lost his entitlement to bail and consequently the learned trial Court proceeded to cancel the bail already granted to the accused/petitioner and in consequence' of the said order the accused/petitioner was arrested and sent to the judicial lock- up. Hence this application of bail.
3. Arguments have been heard and record perused. Since the learned trial Court had admitted the petitioner to bail on 2-7-2001 after considering all the relevant facts of the case, we need not discuss in detail the facts of the case for deciding this application for bail after arrest. The hail granted to the petitioner/accused by the learned Trial Court had been subsequently cancelled on 8-5-2002 on the ground that hewas misusing the concession of bail and was abusing the process of law by prolonging the proceedings of the case on different pretexts.
4. At the time of arguments on this application the learned counsel for the petitioner has assured that in case the petitioner is admitted to bail, his counsel shall be regularly appearing before the learned trial Court and will not seek any adjournment during the trial on any pretext. It is expected by this Court that on the basis of the assurance given by the learned counsel for the petitioner, the counsel for the petitioner shall be appearing before the learned trial Court in future regularly on all dates fixed for trial and the petitioner will not try to prolong the trial on any pretext, whatsoever.
5. Since the absence of the defence counsel cannot be attributed to the petitioner, it would not be proper to punish him on that account, by withdrawing the concession of bail. In any way, as the petitioner was already on bail, without discussing the facts of the case in detail, the application is accepted and the petitioner is admitted to bail in the sum of Rs.1,00,000 with two sureties each in the like amount, to the satisfaction of the learned trial Court/Additional Sessions Judge, Mianwali.