2003 PLP 1906 (YLR)

Applicant Nawazo had stood surety for accused Aadat, Jani and Jaffar in a murder case (Crime No.51 of 2000 Police Station Khanpur Mahar) who absconded after grant of bail by this Court on 10-8-2001. The surety bond having been forfeited, the applicant is directed to pay the full bond amount of Rs.6,00,000 (six lacs) by the trial Court by its order dated 20-3-2002. The surety has challenged the above order in revision before this Court. All the three accused are still at large. I have heard the learned counsel for the applicant/surety and the learned Additional Advocate-General for the State. It was contended by Mr. Shah that the applicant had made an application to the trial Court on 3-12-2001 that the accused are likely to abscond so they be taken into custody and since the trial Court failed to take them into custody, they absconded. His contention was that on 3-12-2001 when the accused were present before the trial Court on the date of their hearing, learned Court ought to have taken the accused into custody and discharged the surety. He further argued that if it had been done, the accused would not have absconded. Mr. Shah was asked whether the Court was bound to discharge the surety at the time when the latter desired or whether there was any discretion with the Court to have issued notice to the accused and ask them to arrange for a fresh surety. The counsel failed to make a satisfactory reply and also failed to produce any relevant decision on the point. Mr. Shah's second submission was that the surety was bound to produce the accused only before the Court of IInd Additional Sessions Judge, Ghotki before which Court the bond was executed and since the surety had not executed any bond before the learned transferee Court of Sessions Judge, he was not bound to produce the accused before the Court of learned Sessions Judge. Reliance was placed on 1992 PCr.LJ 2238, 1990 MLD 2076 and 1999 PCr. LJ 2108. Mr. Ghulam Dastagir A. Shahani, learned Additional Advocate-General appearing for the State opposed the revision and submitted that the surety had taken upon himself the liability of producing the accused before the Court as and when required. He also submitted that the surety was bound to produce the accused before the Courts to which the case was transferred. The record shows that 3-12-2001 was the date of hearing in the case, on which date the accused had appeared before the trial Court, when the surety also appeared before the Court with an application praying therein to be discharged. The question would arise whether the learned trial Court upon receipt of application from the surety, who appeared on the date of hearing in the case, had no discretion to intimate the accused through a notice and was bound to discharge the surety from his ability on the same date when he presented the application before the Court. In this case the learned trial Court found it fit to issue notice to the accused with a direction to them to arrange for another surety and further directed the surety to appear on the next date of hearing. There is no provision of law or any decision on the point that the Court was duty bound to oblige the surety and discharge him from his liability, the moment he prays to be discharged. The case-law referred by the applicant's learned counsel is hardly of any help to the applicant. Generally speaking, it was well in the interest of justice and fair play that the accused were allowed some time to arrange for their fresh surety as they were under-trial prisoners. Nothing prevents the trial Court to postpone the order on the application of the surety. In my humble view, the learned trial Court was within its discretion to allow time to the accused to bring another surety on the date of hearing. Indeed the surety would be bound by his liability till he is discharged by the Court. Resultantly, the Criminal Revision Appeal No.40 of 2002 is dismissed alongwith listed application. H.B.T./N-125/K Application dismissed.