2006 PLP 960 (YLR)

IJAZ-UL-HASSAN KHAN, J.--Petitioner Aziz-ur-Rehman has moved instant application under section 516-A, Cr.P.C. for the quashment of order dated 28-10-2005 of Additional Sessions Judge, Peshawar, to. the extent of direction to furnishing Bank guarantee in the sum of Rs.1,50,000 for the purpose of return of vehicle till the disposal of case.

2. Shortly narrated the facts are, that the petitioner was arrested in case F.I.R. No. 557 dated 17-5-2005, registered at Police Station, Gulbahar Peshawar, under sections 411/420/468/471, P.P.C. and was released on bail by Judicial Magistrate, Peshawar. At the time of arrest, Motor Car bearing Registration No.1445-DR was also taken into possession by the concerned police from the petitioner. The petitioner applied for the return of the vehicle on'superdari' to the Court of Judicial Magistrate, Peshawar but the same was rejected. The petitioner applied for return of the vehicle in the Court of Additional Sessions Judge, Peshawar, which was accepted, but the petitioner was directed to furnish Bank guarantee in the sum of Rs.1,50,000.

3. Mr. Hussain Ali, Advocate for the petitioner, contended that the car in question was taken into possession from the petitioner at the time of his arrest; that the petitioner is a bona fide purchaser of the car and that the petitioner is a taxi driver by profession and it is not possible for the petitioner to furnish Bank guarantee of such a huge amount. To substantiate the contentions, reliance was placed on Muhammad Yousaf v. The State 1986 MLD 2632 and Amir Sardar v. The State 1990 PCr.LJ 414.

4. Mr. Amin-ur-Rehman, Advocate, appearing for the State, supported the impugned order, maintaining that the application is liable to dismissal.

5. An order demanding cash security for bail is illegal as there is no provision in the Code of Criminal Procedure, 1898 to support such order. It is open to the Court to accept cash security to such an extent as it may think fit if such security is offered by the accused under section 513, Cr.P.C., but the Court cannot insist on the cash security. Section 499, Cr.P.C. again contemplates the execution of a bond with surety and not a cash deposit. The accused as well as the surety, have, therefore, to execute only bonds which are sufficient. This section, however, does not authorize the demand of cash in lieu of bond by a Court. The following observations were made in Lakhi Narayan Kandu v. The Crown reported in PLD 1955 Dacca 1984: "With regard to the question as to whether a Magistrate is competent to insist on the deposit of cash security instead of requiring the execution of a bond, we agree with the decisions in cases of Rajballam Singh v. King Emperor, Abdul Gani and others v. Emperor 48 Cr. U 773 and R.R. Chari v. Emperor 49 Cr. L.1 282, that the section contemplates the execution of a bond with sureties and not a cash deposit."

6. In view of the above, the impugned order dated 28-10-2005 is modified to the extent that the vehicle in question shall be released on `superdari', subject to furnishing bond by the petitioner in the sum of Rs.1,50,000, instead of requiring the petitioner to furnish Bank guarantee. The quashment petition is disposed of in the above terms. H.B.T./16/P???????????????????????????????????????????????????????????????????????????????????????? Order accordingly.