ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Revision Application No.S-43  of  2013

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE.

08.10.2013.

1. For orders on office objection.

2. For Katcha Peshi.

Mr. Irfan Badar Abbasi, advocate for the applicant/accused.

Mr. Ali Raza Pathan, State Counsel.

O R D E R.

ABDUL MAALIK GADDI, J.-      Through this criminal revision application, the applicant/accused Hubdar Kalhoro has assailed the legality and propriety of the order dated 27.8.2013, passed by the learned Special Judge, Anticorruption (Provincial), Larkana in a case No.39/2011 re State v. Hubdar Ali, whereby the bail bonds of the accused/applicant was forfeited and N.B.Ws were issued against him.

          2.       It is contended by learned Counsel for the applicant that the learned trial Court in harsh and hasty manner issued the N.B.Ws while rejecting the prayer of the applicant/accused for condonation of his absence only for one day, which was supported with medical certificate showing the ailment of applicant/accused.  He has further submitted that the applicant/accused was on bail and he never misused the bail, but on the relevant date i.e., 27.8.2013 he could not appear before the trial Court because of his ailment and such application for condonation of his absence sent to the learned trial Court through his son, which was not accepted.

          3.       Learned State Counsel has supported the impugned order by arguing that the impugned order is perfect in law, but he did not substantiate his argument through any valid reason.

          4.       Record shows that applicant/accused, who was facing trial before the learned Special Judge, Anticorruption (Provincial), Larkana, was on bail.  He did not appear in Court on 27.8.2013, however he sent

an application for condonation of his absence through his son duly supported by medical certificate, but the learned trial Court did not agree with the reason for condonation of absence mentioned in the application and passed the following order :-

“27.8.2013.

          Accused Hubdar Ali is called absent, application received on his behalf for excuse his absence.  Order on it.  Bail bond of accused is forfeited.  Issue N.B.W against him and notice against his surety.  ADPP and DA are present.  P.Ws Ashraf Ali, Athar Hussain, Pervez Ali and complainant Hizbullah are present.  Put off to 02.10.2013.  Present P.Ws are bound down to attend.

Sd/-

Spl. Judge, A.C., Larkana”

          5.       As per record, the applicant/accused has been attending the Court regularly; that the applicant is a clerk by profession and on the relevant date he could not appear before the trial Court as he was suffering from “diarrhea” and in this respect he sent an application to trial Court for condonation of his absence which was supported by the medical certificate.  The explanation of the applicant/accused for his non-attending the Court was not accepted by trial Court.  The certified copy of the case diaries, which is available on record, shows that the applicant was regular in attending the Court.  Learned State Counsel has not been able to controvert the above factual position, therefore, under the circumstances, the impugned order passed by the learned trial Court appears to be harsh, as such, under the peculiar facts and circumstances, it appears to be fit case calling interference of this Court under revisional jurisdiction under Section 435 read with Section 439 and 561-A, Cr.P.C.  The scope of revisional jurisdiction of this Court is very wide and it is to be exercised whenever facts calling for its exercise are brought to the notice of the Court and where the order of the trial Court is found absolutely harsh, based on misconception of law and facts and quite contrary to the principles laid down for dispensation of criminal justice.  Such jurisdiction is to be exercised to correct or to prevent gross miscarriage of justice.        

          6.       The grounds as submitted by the petitioner for non-attending the Court on the relevant date was sufficient for trial Court to condone the absence of the applicant/accused for one day, but the learned trial Court did not exercise its judicial discretion in favour of the applicant.    

          7.       Accordingly under the afore-mentioned facts and circumstances of the case and while relying upon the case of Abdullah v. The State, reported in 1998 CrLJ 328, this revision application is allowed, impugned order dated 27.8.2013 is set aside and absence of the applicant/accused is condoned.  The applicant/accused is on bail and he will remain on bail on same surety and P.R bond.

          8.       This criminal revision application is allowed and the impugned order is set aside in above terms.

                                                                                                JUDGE

Qazi Tahir/*