1986 P Cr (PLP)

Syed Hyder Raza Naqvi for Appellant. Nemo for the State. Date of hearing: 3rd February, 1986. This Revision Application is directed against the order of learned Sessions Judge, Karachi, dated 30‑4‑1984 which is reproduced as under:‑ "Stoppage of proceedings does not tantamount to end of the proceedings. Trial Court cannot discharge bail bonds executed in senior Court Rejected." The circumstances in which the above order was passed may be summarised as follows. The accused Syed Wazir Ali, who was, facing trial under section 408/468/420, P.P.C. in the Court for the Additional City Magistrate, Garden and Nabi Bux, Karachi, moved the Sessions Court for pre‑arrest bail. He was granted bail and the applicant Syed Masood‑ul‑Hassan stood surety for him and submitted the documents involved in the case in proof of his solvency and being a man of means. Subsequently by order, dated 9‑12‑1979 the learned Additional City Magistrate stopped the proceedings pending against the accused under section

249. Cr.P.C. and ordered his release. His bail bond was also in consequence discharged. After this order was passed, the applicant approached the Sessions Court for return of his documents but his request in this regard was turned down by the impugned order mentioned above. I have heard the arguments of the learned counsel for the applicant and have also gone through the relevant documents connected with the case. The case against the accused pending in the learned lower Court was stopped under section 249, Cr.P.C. It reads as under:‑ "

249. Power to stop proceedings when no complainant.‑‑ In any case instituted otherwise than upon complaint a Magistrate of the first class, or with the previous sanction of the District Magistrate, any other Magistrate, may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction and may thereupon release the accused." It would be noticed that as provided in the above section the accused has got to be released following the stoppage of the proceedings. The word "release" used in the above section cannot be confused with "release" from custody. Because the accused may not be in jail at the time of passing the order under the above section. In the instant case when the proceedings against the accused were stopped, he was on bail. Therefore, the question of his release from custody in consequence of the order under section 249, Cr.P.C. did not arise. Release in such a case can only be construed to mean release from the liability for attending the Court. Consequent upon stoppage of the proceedings, the case comes to an. end for an indefinite period. The accused is, therefore, no longer required to attend the Court, in any, case not until availability of the evidence justifying the revival of the case against him. Supposing no such evidence is forthcoming for all time to come the case would remain stopped permanently. It seems section 249, Cr.P.C. is in the nature of section 253 which was deleted in the wake of law reforms. The defunct section empowered the Court to "discharge" the accused at any stage of the case prior to framing of charge against him. However the accused's discharge under the said section did not operate as permanent closure of the case against him. Subsequent to his discharge if sufficient evidence became available, the case could be revived against him. Similarly the stoppage of the proceedings under section 249, Cr.P.C. has the effect of discharging the accused until such time when on availability of the requisite evidence the case could be revived against him. I am, therefore, not inclined to endorse the view taken by the learned Sessions Judge. The stoppage of the proceedings amounts to termination of the case for the time being. Since the accused is not required to attend the Court as he stands released from such liability, the liability of his surety which extends to accused's regular attendance in the Court also comes to an end. By no stretch of imagination the surety can be held to continue as surety for the accused for an indefinite period which, as pointed out above, may never be ended. In such a case it would be absurd to withhold the return of the documents deposited by the surety. For above reasons the impugned order was entirely unjustified. It is hereby set aside and the documents deposited by the surety/ applicant are ordered to be returned to him. M.Y.H. Petition accepted.