1992 PLP 898 (MLD)

The question that has been raised in this revision application relates to the interpretation of section 499, Cr.P.C.

2. The applicant who is involved in a criminal case pending before Sessions Judge (West) Karachi, was allowed bail on the ground of statutory delay. He offered two sureties, namely, Muhammad and Yousuf. Both these sureties were, however, not found fit. The former was found unfit for the following reasons:‑‑‑ "The surety is present who is tout of the Court. He does not appear solvent and seems to have been asked to stand surety for money. In such cases of heroin, the accused after producing surety disappears. Surety is rejected."

3. The affidavit of justification filed by the latter surety was rejected for the following reasons:‑‑‑ "The case is at defence stage. Surety is a fisherman, while accused is a Pathan. Surety is the owner of launch, but failed to convince me that he has known the accused very well. He has been set up as a professional surety. Rejected, as accused will abscond after release."

4. These orders, dated 9‑12‑1991 and 11‑12‑1991, are the subject‑matter of the present revision application.

5. Section 499, Cr.P.C. provides for bond of accused and sureties in the following words:‑ "Bond of accused and sureties.‑‑‑(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. (2) If, the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge."

6. Rules 16, 17 and 18 of the Federal Capital and Sindh Courts Criminal Circulars, which are statutory in nature, lay, down the procedure for the acceptance or otherwise of the sureties. A perusal of these rules makes it clear that where the surety is found to be solvent, reliable and is identified the Court is bound to accept the same. A similar question was examined in the case of Muhammad Salim v. The State, reported in PLD 1970 Karachi 187, wherein it was observed:‑‑‑ "On a plain reading of this section two conditions are necessary before any person is released on his own bond. These are, firstly, that he must execute a bond for such sum of money as the Court may think sufficient and that, secondly, a bond has to be executed by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the Court. In other words, it is the Court which has to determine the sufficiency of the bond as well as the sureties. This determination must be a judicial determination as the function of granting bail is a judicial function and not an administrative one.

7. It is apparent that the Court has to verify the "solvency of the surety" and the "fitness of surety" before accepting the same. A particular person may be solvent but he may not be a fit person to stand as surety. Such determination being a judicial function it necessarily implies that the verification should be based upon proper inquiry.

8. Section 122, Cr.P.C. deals with the procedure for ascertaining solvency of the surety in cases where a person is ordered to execute a bond of good behaviour with sureties under section 118, Cr.P.C. As observed in the case of Muhammad Salim referred to in para. 6 ante, the determination of the sufficiency of surety under section 499, Cr.P.C. involves the examination similar to that of an inquiry as is prescribed in section 122, Cr.P.C. and, therefore, the rule laid down by the superior Courts in relation to section 122, Cr.P.C. will apply with equal force to such determination under section 499, Cr.P.C.

9. Mr. Abdul Waheed Siddiqui, learned counsel for applicant has referred me to a wealth of case‑law commencing from 1921 down to the present day in support of his contention that the surety offered by an accused cannot be rejected at the sweet will of the Court. The first of these cases is a decision of Budhu Ahir v. King‑Emperor, reported in AIR 1921 Calcutta 356(1), wherein it was observed that the mere fact that the proposed surety had been convicted of such an offence as assault is not sufficient to justify the Magistrate in coming to the conclusion that he could not be a proper surety. In Ghisa v. Emperor, reported in AIR 1924 Oudh 132 (2), it was observed. "The applicant Ghisa has been bound over to be of good behaviour for a period of one year. He furnished two sureties, Jagannath Singh and Baiju Singh, one of whom was accepted by the Trying Magistrate. The other was not accepted on the ground that he had already stood surety for some other man. That ground is clearly insufficient. Jagannath Singh is zemindar and Baiju Singh is an under‑proprietor. The undertook to look after the accused if their security bonds be accepted. The application is allowed and the Trying Magistrate directed to release the accused Ghisa if the security‑bonds of Jagannath and Baiju Singh are still subsisting and have not been withdrawn."

10. In the case Gul Hassan v. The State reported in PLD 1961 Karachi 698, a learned Single Judge of this Court held as follows:‑‑‑ "Section

122. Cr.P.C. provides that the Magistrate may refuse to accept any surety offered, on the ground that such surety is an unfit person, for the purpose of the bond. Proviso to section 122(1) provides. that before so refusing to accept or reject any such surety, he shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him. In this case, admittedly. the Magistrate before refusing to accept the surety has not held any inquiry as to the fitness of the persons who had offered themselves as sureties for the applicant. Thus there is a violation of the mandatory provision of the proviso of section 122(1), Cr.P.C. The order therefore is illegal."

11. Another passage although in the context of section 122, Cr.P.C. as appearing in the case of Sajjad Mir and 2 others v. The State, reported in 1975 PCr.LJ 532, is to the following effect:‑‑‑ "Additionally it appears that even if the order, dated 13‑9‑1973 is considered to be one under section 117(3), Cr.P.C. the said order does not impose any qualifications on the sureties apart from the qualifications of solvency. In such view of the matter it was not open to the Sub‑Divisional Magistrate to reject the sureties produced by the applicants on grounds other than the solvency of the sureties. Indeed the Magistrate has expressed in his order, dated 15‑9‑1973 that the sureties were financially sound. In such view of the matter the rest of the order was in derogation of the order, dated 13‑9‑1973 and cannot be sustained."

12. The latest judgment on this point is to be found in the case of Mst Sher Bano and another v. The State reported in PLD 1989 Karachi 602, wherein it was made clear that the Court had an option to get the title deed verified, but it was not open to it to reject the surety simply on the ground that by appearance she was a poor lady.

13. Applying the above principle to the facts of the present case, it is clear that the learned Sessions Judge rejected the surety offered by Muhammad on a ground which is not substantiated from the record. There is nothing on record to show that Muhammad is a tout of the Court. The ground on which Yousuf was not accepted as surety is again not tenable. It may be repeated that the determining factor for the acceptance of surety is the solvency alone, unless of course the surety is not found fit. In that exigency there should be some material on record to justify a finding of this nature.

14. In this view of the matter, the impugned orders cannot be sustained and are set aside. The learned Sessions Judge is directed to get the documents submitted by the sureties verified from concerned authorities. He may also hold an inquiry about the "fitness of sureties" and if the documents are found genuine and the sureties are found fit, he should accept the sureties produced before him. M.B.A./N‑401/K Order accordingly.