P L D 1965 (W (PLP)

Date of hearing : 19th October 1964. This is a criminal reference by Mr. Mehdi Ali Siddiqi, Additional Sessions Judge, Karachi, recommending that the two orders passed in this case by Mr. Aftab Hussain, A. C. M., Karachi, dated 7‑5‑1962, and Mr. Salahuddin Qureshi, City and Additional District Magistrate, Karachi, dated 22‑12‑62 be quashed on account of the legal defects appearing in those two orders.

2. The brief facts giving rise to this matter are that on 4‑2‑61 the respondent Syed Mahejabeen Hussain Naqvi stood surety on behalf of accused Shabbir Hussain, in respect of an offence under section 420, P. P. C. in the Court of a First Class Magistrate, Karachi. On a date fixed for hearing of this matter, the accused Shabbir Hussain absented himself from the Court, so that his surety was called upon either to produce him or show cause why his bond should not be forfeited, and on his failing to produce the accused, the Magistrate, Mr. Aftab Hussain on 7‑5‑62, forfeited the bond and called upon the respondent to pay a sum of Rs. 3,000 instead of the full amount of Rs. 5,000 for which the bond had been executed. An appeal against this order under section 515, Cr. P. C. was carried to the Court of the City and Additional District Magistrate, Karachi, who on 22‑12‑62, dismissed this appeal. A revision was then filed in the Court of the Sessions Judge, Karachi, which has resulted in the present reference.

3. In the course of his order of reference, Mr. Mehdi Ali Siddiqui, A. S. J., Karachi, refers to the two points raised on behalf of the applicant by his counsel, Mr. M. A. Naqvi, the first being that the bond that has been forfeited stood in the name of His Excellency the Governor‑General of Pakistan, who at the time the bond was executed, had no legal existence. The second point was that inasmuch as the co‑accused of Shabbir Hussain has been acquitted ultimately in the case, the amount of the bond that had to be forfeited should be reduced.

4. I have heard Syed Murtaza Hussain in support of the reference, and Mr. M. A. Naqvi, Advocate, on behalf of the res pondent. Mr. Murtaza has invited my attention to a similar reference made by the same Additional Sessions Judge and bearing No. 785/63 based on identical facts. This reference along with another similar reference bearing No. 687/63 made by the Sessions Judge himself, Mr. Kadir Nawaz Awan, was disposed of by a consolidated order dated 30‑5‑64 by Feroze Nana, J. After setting out the various contentions raised in these two references, Mr. Justice Feroze Nana reached the conclusion that‑ "the bonds executed in favour of the Governor‑General of Pakistan by Islam and Abdul Rehman are legal and enforcible in both these cases. Consequently, I decline to accept the references made by the learned Sessions Judge, Karachi, dated 7th October 1963, and the learned Additional Sessions Judge, Karachi, dated 7th November 1963,"

4. In view of this long order of Feroze Nana, J. it becomes unnecessary for me for the purpose of disposing of this present reference, to write another long older. The present reference by Mr. Mehdi Ali Siddiqui, A. S. J., Karachi was made on 12‑3‑64, that is to say, well before the date of the order of Feroze Nana, J. on the previous reference by this same Additional Sessions Judge. I have no doubt that if the order of Feroze Nana, J. of 30‑5‑1964 had reached Mr. Mehdi Ali Siddiqui before 12‑3‑1964, he would not have made this reference. Nevertheless, in rejecting the present reference, it would be useful to summarize in this order my reasons for not accepting this reference in toto.

5. The first ground on which this reference has been made is that on the date of the execution of the bond in question in this case, namely, 4‑2‑61, there was no Governor‑General of Pakistan in existence. Now, it is no doubt true that this was so: but it must be remembered that there was a Governor‑General of Pakistan until the 23rd day of March 1956. Prior to that, Form No. 42 in Schedule B, Cr. P. C. was amended by the adaptation of Central Acts and Ordinances Order, 1949, being Governor‑General's Order IV of 1949, published in the Gazette of Pakistan dated 29‑4‑1949, omitting the expressions "The Empress of India" and "The Emperor of India". Thereafter came the President's Order No. 1 of 1961, Central Laws (Adaptation) Order, 1961, printed in the Gazette of Pakistan Extraordinary dated the 24th of January 1961, and in sub‑Article (2) of Article 2 of this order, the expression "Government" was ordered to be substituted for the expressions "Crown", "His Majesty" or "Her Majesty" occurring in the Central Acts and Ordinances, and the word "President" for the expression "Governor‑General". According to subsection (2) of section 1 of this Order, it came into force on the 23rd day of March 1956. Thus it is established that the post of Governor‑General of Pakistan did exist for some time until it was replaced by the word "President". Hence, although in the form of the bond in question the word "Governor‑General" has been used, it shall be construed as referring to the President of Pakistan. For these reasons, then, I find no substance in the first ground of this reference.

6. But with regard to the second ground on which this reference has been made, I do feel that some compassion and sympathy should be bestowed upon the respondent. He is an old journalist who has now fallen on bad days. The co‑accused at the trial at which accused Shabbir absconded, was acquitted by the trial Court. In view of these circumstances, I would, while forfeiting the bond of the present respondent, reduce the amount to be recovered from him from Rs. 3,000 to Rs. 1,000, only. This reference should, therefore, be returned unaccepted except for the reduction in the amount of the forfeited bond. K. B. A. Reference rejected.