P L D 1970 Karachi 46 (PLP)

This is a revision application against the order of the learned Sessions Judge, Tharparkar at Mirpurkhas forfeiting the bond of the petitioner who had stood surety for the appearance of an accused and calling upon him to pay the penalty.

2. Aziz Ahmad, son of Nasir Ahmad was an accused person in an anti‑corruption case and it was pending in the Court of Additional Sessions Judge and Special Judge, Hydera bad. Bail was granted to him and he was required to execute P. R. and surety bond in the sum of Rs. 10,

000. The present applicant stood surety on, 17th April 1964 and executed a surety, bond which reads as under: "Whereas the above‑named accused has been challaned by C. I. A. Police, Hyderabad to stand their/his trial under section 419/420/465, P. P. C. and whereas on filing the bail application by the Advocate of the above‑named accused before this Court, the Court has ordered to release the accused on furnishing: surety in the sum of Rs. 10,000 (ten thousand) and P. R. in the like amount. Whereas I, Haji Abdul Ghani son of Jota Khan Saraf, caste Sheikh, resident of Bakra Mandi, Taluka, Hyderabad stand surety for the above‑named accused in the sum of Rs. 10,000 and bind myself/ourselves to produce the above‑named accused before the Court of Sessions, Hyderabad on 11th May 1964, and thereafter whenever called upon to do so, failing which: I/we shall pay a fine of Rs. 10,000 to the Government of West Pakistan for which my/our legal heirs are also to be held: responsible and bound down:"

3. Subsequently the presiding Judge was transferred as District and Sessions Judge, Mirpurkhas and, therefore, the case was also transferred to him by this Court. Accused Aziz Ahmad failed to appear at Mirpurkhas on the date of hearing in spite of the process issued against him and, therefore, notices were issued to the applicant. He was served for 9th February 1967 and 9th March 1967, but on each occasion he sent a telegram for postponement on one or the other excuse. The learned Sessions. Judge by his order dated 19th March 1966 forfeited the surety bond and notice was issued to the applicant to show cause why the amount of Rs. 10,000 be not recovered from him. Non bailable warrants were also ordered to be issued against the accused. The applicant, however, could not be served with the notices as it was said that he had absconded. Consequently the learned Sessions Judge by his order dated 28th July 1967, issued warrant of attachment of the property of the applicant simultaneously issuing warrant of arrest for his detention in civil prison for a term of six months.

4. The applicant having come to know about this order filed the present revision petition. It was urged by the learned counsel for the applicant that the applicant had stood surety for the appearance of the accused in the Court of Sessions, Hyderabad, and not for the Court of learned Sessions Judge, Tharparkar at Mirpurkhas, and, therefore, the order passed by the learned Sessions Judge was not in terms of the bond. I find consider able force in this contention. Apparently the bond was for the appearance of the accused in the Sessions Court, Hyderabad and not for appearance in any other Court. The cancellation of bond could only be in terms of the bond. Applicant had given no undertaking for the appearance of the accused or for his pro duction in any other Court.

5. It may be said that since the bond was executed under the Criminal Procedure Code which permits the transfer of the case from one Court to the other, the liability under the bond cannot be presumed to have ceased on the transfer of the case but it continues wherever the case is sent. Indeed the code provides for the transfer of the case but the bond contains no provision binding the surety to produce the accused in a Court other than the Court mentioned in the bond. The terms of the bond being penal must be construed strictly. The contingency that the case may be transferred to some other Court or Courts was never contemplated by the parties nor any such condition was imposed in the bond. There is no reason, while construing the penal clause of a surety bond, for the application of a legal fiction. So it is not possible to construe it differently.

6. This view is fully borne out by the provisions of section 499, Cr. P. C. which reads as under "(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 require, 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."

7. Subsection (1) clearly enjoins police officer and Courts the duty expressly stating in the bond the condition that the 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. Sub section (2) provides that, if the case so requires, the bond shall also bind the person released on bail to appear, when called upon, in the High Court, Court of Session or other Court to answer the charge.

8. Thus this subsection clearly means that the bond must expressly provide for such contingencies. It not only lays down that the time and place be mentioned in the bond but it also lays down that the bond may provide for the appearance in any other Court which is obviously intended to meet the eventuality on the transfer of the case to another Court. It, therefore, follows that if the obligation to appear in the Court to which the case may be transferred has not been specified in the bond, the surety cannot be penalised for the e failure of the accused to appear in that Court. In the absence of a provision in the bond for such an eventuality, the bond effected its purpose when the case was transferred to Sessions Court, Mirpurkhas.

9. It will also be useful to refer to the expression, "or where the bond is for appearance before a Court, to the satisfac tion of such Court" occurring in subsection (1) of section 514, Cr. P. C. This requires that the forfeiture should be established to the satisfaction of the Court before which the accused was bound by the bond to appear. No other Court has the power L to forfeit the bond or impose the penalty. The bond in the present case provided the appearance of the accused in the Sessions Court, Hyderabad on the date specified therein and on any subsequent date whenever called upon to appear. So the only Court which could exercise the power was that Court only. Evidently this power could not be exercised by the Sessions Judge, Mirpurkhas irrespective of the fact that the case was transferred to him and, therefore, the forfeiture of the bond was illegal. 10. 1 may now refer to the authority in the case of Bhoop Singh Kehri Singh v. The State (A I R 1954 Madh. Bhar. 8) which was sought in aid by the learned counsel for the applicant. It was held that where a security bond is given for attendance and production of an accused in a particular Court only, the liability of the surety comes to an end when the case is transferred to another Court and in such a case the bond cannot be forfeited for failure of the accused to appear before the transferee Court. In this, the view taken by the High Courts of Nagpur, Bombay and Calcutta was followed.

11. Apart from this the order of the learned Sessions Judge suffers from other serious infirmities as it violates the provisions of section 514, Cr. P. C. According to subsection (2) the penalty can be recovered by issuing warrant for the attach ment and sale of movable property. Consequently the immovable property cannot be attached and general warrant for the attachment and sale of the property of the surety is not proper and, therefore, the warrant is invalid.

12. The second infirmity is that the order violates sub section (3) of section 514, Cr. P. C. It lays down that in case the movable property belonging to such person is situated out of the limits of the Court issuing the warrant then the war rant has to be sent to the District Magistrate of the District within the local limits of whose jurisdiction such property is found and it is only after his endorsement that the warrant can be executed. In the present case the learned Sessions Judge did not comply with this mandatory provision of law and instead sent the warrant directly to S. H. O., Phulely Police Station, 'Hyderabad.

13. Lastly, the order of the learned Sessions Judge violates the provision of subsection (4), which lays down that if the penalty is not paid or cannot be recovered by such attach ment and sale the order for the imprisonment should be passed. The learned Sessions Judge without waiting for the result of the warrant passed both the orders simultaneously, that is, he issued the warrant of attachment of the property as well as issued the warrant of arrest of the applicant by the same order. The necessity of the warrant of arrest could arise only after the amount was not recovered by the attachment and sale of the movable property of the applicant.

14. For the foregoing reasons the order of the learned Sessions Judge is not sustainable. I, therefore, allow the revision petition and set aside the impugned order. A. E./S. A. H. Petition allowed.