1993 PCr (PLP)

S. 502

Substitution of security

Surety wanted to substitute his previously deposited security in the shape of Standard Certificates of Deposit with the title documents of the property owned by him

Trial Court, therefore, had no option but to allow such a substitution after weighing the solvency aspect of the surety

Order of Trial Court refusing to allow the aforesaid substitution was consequently set aside and the revision petition filed by the surety was allowed as prayed for. Syed Sami Ahmed for Applicant. Ikram Ahmed Ansari, Dy. A.-G. for the State. Date of hearing: 28th June, 1992. This Special Revision Application has been filed on behalf of applicant Abdul Razzak son of Ali Muhammad whose application for substitution of surety was rejected by the learned trial Court vide order, dated 26-4-1.992. Briefly the facts of the case are that the applicant stood surety for co accused Gul Khan Khattak and deposited Standard Certificates of Deposit of the value of Rs.10,00,

000. The security was deposited by the applicant on 14-1-1992 as the co-accused Gul Khan Khattak had been enlarged on bail vide order dated 8-1-1992. During the pendency of the case the applicant offered to replace the said security by depositing the title deeds of a flat which was owned by the applicant as the applicant needed the first security for solemnizing his sister's marriage. The application moved by the applicant was rejected by the learned trial Judge for the reason that no ground was shown why the applicant wanted to change the surety. I have heard Mr. Syed Sami Ahmed, learned counsel for the applicant and Mr. Ikram Ahmed Ansari, learned Deputy Attorney-General. The latter has not opposed this application. At the very outset I may observe that the learned trial Judge erred in rejecting the said application as under section. 502, Cr.P.C. a surety is permitted to move an application "at any time" to discharge the bond, either wholly or so far it relates to the applicant. Again under subsection (3) of section 502, Cr.P.C. the Court "shall" either discharge. the bond wholly or so far it relates to the applicant and thereafter the Court is required to call upon the accused to find other sufficient surety. It will, therefore, appear on the plain reading of section 502, Cr.P.C. that the surety is not required to give any ground while praying for substitution nor can the Court question such an application moved by the surety for substitution as this was a case where the same surety/applicant was substituting by means of a fresh title documents in respect of a property which was also owned by him. Therefore, the trial Court had no option but to allow such a substitution after weighing the solvency aspect of the surety. In view of my above observations coupled with the consent of the learned Deputy Attorney-General the order, dated 26-4-1992 passed by the learned Special Judge (Customs and Taxation), Karachi is hereby set aside and this revision application is allowed as prayed for. N.H.Q./A-1375/K Revision allowed.