2022 PLP 118 (YLRN)

ROZI KHAN BARRECH, J.

The petitioner has invoked the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973: "It is, therefore, respectfully prayed that this Hon'ble court may kindly be pleased to:- i. The impugned order dated 14.09.2019, passed by learned Additional Sessions Judge-VII, Quetta may kindly be declared as null and void. ii. Restoring the orders dated 21.08.2019, 02.08.2019, and 04.09.2019, passed by the trial Court (Judicial Magistrate-I Quetta) iii. Directing the respondent No.1 to comply with the orders of the trial Court by submitting the remaining surety. iv. Any other relief, which may deem and fit by this Hon'ble Court may also be awarded."

2. Brief facts of the case are that the petitioner lodged FIR No. 144/2018 for an offence under Section 489-F, P.C. dated 22.10.2018 with Police Station City Quetta against respondent No.1. During course of investigation, respondent No.1 was arrested, who moved an application for grant of post arrest bail before learned Judicial Magistrate-I Quetta (trial court) and the same was granted subject to furnishing surety in the sum of Rs.50,00,000/- equivalent to amount of alleged cheque issued by respondent No.1 to the petitioner.

3. The respondent No. 1 did not arrange the surety amount of Rs.50,00,000/- and filed an application for reduction of surety amount and also requested for depositing cash surety. The application was allowed and respondent No.1 deposited cash amount of Rs.300,000/- with the trial court, where after the respondent No.1 was released on bail. Subsequently, on 02.08.2019, 21.08.2019 and 04.09.2019 the trial court directed the respondent No.1 to also submit personal surety of Rs.47,00,000/- but the respondent No.1 failed to do so and filed a revision petition before the learned Sessions Judge Quetta, which was transferred to the learned Additional Sessions Judge-VII Quetta (revisional court). After hearing the arguments of the parties the revisional court set aside the order dated 21.08.2019, 02.09.2019 and 04.09.2019. Hence this petition.

4. On 5.08.2020 despite service and repeated calls counsel for the petitioner was not in attendance and same was the position on 22.06.2020, 29.04.2020 and 02.01.2020. Due to repeated non-appearance of learned counsel for the petitioner we were left with no other option but to decide the petition on the basis of available record.

5. It may be observed that the allegation levelled against respondent No.1 is that he issued a cheque of Rs.50,00,000/-, which was dishonored. Respondent No.1 was arrested, who filed an application for post arrest bail and the same was granted by the trial court on 16.05.2019 subject to furnishing surety amounting to Rs.50,00,000/- equivalent to the amount of dishonored cheque. Subsequently the respondent No.1 filed an application for reduction of the surety amount, which was allowed and respondent No.1 was directed to furnish cash surety of Rs.300,000/-.

6. So far as the point of fixation of amount of surety equivalent to the amount of dishonored cheques, we are of the humble view that the same cannot be applied as a matter of rules in all the cases. Even otherwise the amount of surety cannot be used to penalize the applicant or deprive him from the concession of bail in appropriate cases. This dictum is laid down in the case titled as Laiq Ahmed v. The State reported in (2011 YLR 75), whereby it was held as under:-- "It is my view that if the trial Court in matters of bail relating to section 489-F, P.P.C. comes to the conclusion that the applicant is entitled to the grant of bail, then while granting bail the surety amount as a rule of thumb should not be equivalent to the dishonoured cheque; but should be reasonable and in accordance with the facts and circumstances of each case, so that the very object of granting bail should not be defeated. Even in the matter of Negotiable Instruments under Order XXXVII, C.P.C. and Financial Institutions (Recovery of Finances) Ordinance, 2001, the Courts have discretion either to dismiss or to grant leave to defend application of the defendant, with or without surety/security being taken into consideration the nature and facts of the case".

7. Moreover, the purpose of release of accused on surety is to ensure his attendance on each and every date of hearing before the trial Court till conclusion of trial and the person who stands surety executes surety bond in the required sum or money with undertaking to produce the accused on each and every date of hearing. Provisions of section 499, Cr.P.C. provide complete mechanism for securing the presence of the accused before a Court or before police officers including the consequences of non-appearance. The object of calling upon the accused for furnishing surety is not to penalize them but to ensure their presence in Court, therefore, the amount of surety must be fixed with regard to nature of offence so that every object of granting of bail is not defeated and the applicant may not suffer agony of jail unnecessarily for the reasons beyond his control. In view of the above discussion, no illegality or irregularity whatsoever has been committed by the revisional court, therefore, the instant petition being devoid of merits is dismissed in limine. SA/223/Bal. Petition dismissed.