P L D 1965 (W (PLP)

These are two references made to this Court the former by the learned Sessions Judge of Karachi on the 7th October 1963, and the latter by the learned Additional Sessions Judge, Karachi on 7‑11‑1963.

2. The facts that gave rise to the former application are that one Abdul Rehman stood surety for an accused person, Bashir Ahmed, in the Court of the S. D. M. Old Town Karachi, and on 26‑3‑1962, executed a bail bond in the sum of Rs. 3,000, undertaking to produce the accused on subsequent dates of hearing. No bond was however executed by the accused, Bashir Ahmed. The case was transferred to various Courts, and finally to the Court of M. Wali Muhammad Shah, when the defect was noticed on 23‑8‑63, Bashir Ahmed was made to execute a bond for his appearance in the Court in the sum of Rs. 3,

000. The case was transferred thereafter to the Court of Mr. Minwalla where the accused failed to put in an appearance. The case was again transferred to the Court of Mr. Junejo who by an order dated 29th December 1963, ordered the forfeiture of Abdul Rehman's bond in the sum of Rs. 3,000.

3. In appeal, the learned City and A. D. M. declined to interfere with Mr. Junejo's order, and a revision application was consequently filed before the learned Sessions Judge, that a reference be made to this Court to set aside the order of forfeiture. The learned Sessions Judge in the course of his reference states that Abdul Rehman did execute a bond in the sum of Rs. 3,000 on 26‑3‑1962, but the back of this bond which should have been executed by Bashir Ahmed was left blank, supporting the contention that no bond in fact was executed by Bashir Ahmed in the Court of the S. D. M., Karachi. Subsequently such a bond was executed by Bashir Ahmed on 23‑4‑62 but at the back of this bond executed by the accused was blank, thus indicating that Abdul Rehman and Bashir Ahmed had executed two bonds in two different Courts at different times. Bashir Ahmed's failure to appear in Court was admitted, and it was contended that as these forms were not in accordance with the provisions of law, no liability had been incurred specially by the applicant, and after a discussion of the relevant law on the point the learned Sessions Judge held that it would create an anomalous position if when as in the instant case, no bond had been executed by the accused person, only the surety, if lie had done so, should be taken to task, for the absence of the accused. Apart from this, the circumstance on which the learned Sessions Judge relied, was that there was a defect in both these bonds, in that they were executed in 1962 in favour of H. E. the Governor‑General of Pakistan, which post did not exist in 1962, and ceased to exist as from 23‑3‑1956, and relying on State of Uttar Pradesh v. Muhammad Sayeed (P L D 1957 S C (Ind.) 431), he recommended that the order of forfeiture be quashed.

4. In the latter case before the learned Additional Sessions Judge, Karachi, Ismail had stood surety for the accused Wahid Hassan in the sum of Rs. 1,000, binding himself to H. E. the Governor‑General of Pakistan in that sum. Wahid Hassan defaulted in appearance before the learned A. C. M., Karachi, and on 9‑10‑1962 Ismail's bond was forfeited, and he was ordered to pay a sum of Rs.

400. His appeal before the leaned City and Additional District Magistrate was dismissed on the ground that the words "H. E. the Governor‑General of Pakistan had not been cancelled through oversight and this was immaterial" and the bond stood forfeited in favour of the Government of Pakistan. In revision the learned Additional Sessions Judge held that the bonds involving payments of penalty should be strictly construed, and that since the reference to the G. G. of Pakistan was not cancelled, and as there was no G: G. of Pakistan on the relevant date, and relying on Bhairon Lal Ranadhin v. State (A I R 1956 All. 123) he was of the opinion that the bond had been wrongly forfeited, and recommended that the order of forfeiture against Ismail, be quashed.

5. Since the important point involved was what was the effect of the mention of the words "G.‑G. of Pakistan" in the bonds executed by the parties in both these references, I ordered notice to issue to the learned A. A.‑G. and I have heard him in consequence. I have also heard Mr. Murtaza Hussain who previously appeared for the State and Mr. Iqbalur Rahim, in Cr. Reference No. 687 of 1963 for respondent Abdul Rehman. The common point in both the references in regard to the position of the G.‑G. of Pakistan in that according to the Courts below, such a post did not exist in 1962, and, therefore, a designation to the proper and correct authority was not indicated in the bond, and consequently the forfeiture of the bond was illegal.

6. In P L D 1957 S C (Ind.) 431, which was relied upon by the learned Sessions Judge, Karachi, the surety had executed a bond in 1953 under section 499, Cr. P. C. agreeing to forfeit to "the King Emperor Qaisar‑e‑Hind" a certain sum of money if he made default in procuring the attendance of the accused before the Court. On his failure to produce the accused, the bond executed by him was ordered to be forfeited, and the Supreme Court finally held that the bond being executed in favour of King Emperor Qaisar‑e‑Hind was not a bond executed under the provisions of the Code, and the forfeiture of such a bond under section 514, Cr. P. C. was invalid. A reference was made to the Adaptations of Laws Order, 1950, clause 4, whereby the word "Government" was to be substituted by the words "Crown", "Her Majesty" and "His Majesty". There was no mention therein of the words "King Emperor" or "Emperor of India", "Queen Empress" or "Empress of India" or "Qaisar‑e‑Hind", and since the bond had been executed on 26‑1‑50, in favour of "King Emperor Qaisar‑e‑Hind", it was not a bond under the provisions of the Cr. P. Code, and resort could not be had to the provisions of section 514, Cr. P. C.

7. Similarly in A I R 1956 All. 123, which was referred to by the learned. Additional Sessions Judge, which is a judgment of a Single Judge, Roy, J. it was observed that after India became a Republic and Form 42 of Sch. V, Cr. P. C. had been amended by the Adaptation of the Laws Order, 1950, there was no point in executing a bond in favour of the `King Emperor' because there was no `King Emperor' so far as India was concerned: hence where a bond was by mistake executed in favour of the King Emperor on an old form, it could not be forfeited to the Government. The learned Judge held that this mistake though technical was a material one and, therefore, could not be enforced against the applicant at the instance of the State, in consequence of which the orders of the Courts below were set aside.

8. To these two points, the learned Additional Advocate General has given what is in my opinion an effective answer. He has stated that in Form 42 in Schedule V, Cr. P. C., both the accused and the surety bound themselves in those terms to Her Majesty the Queen or the Empress of India. By the Adaptation of the Laws Order, 1949, being Adaptation Order IV of 1949 published in the Gazette of Pakistan dated 29‑4‑1949, of the Central Acts and Orders, 1949, published in the All Pakistan Legal Decisions, Central Acts, Ordinances, Notifications, etc., Volume I, p. 1, and at page 22, referring to Schedule V of the Criminal Procedure Code, the expressions "Empress of India and the Emperor of India," were ordered to be omitted. He has further urged that by the President's Order No. 1 of 1961 Central Laws (Adaptation) Order, 1961, printed in the Gazette of Pakistan, Extraordinary dated the 24th of January 1961, and in clause (2) of Article 2 of this Order, the expression "Government" was ordered to be substituted for the expressions "Crown", "His Majesty" and "Her Majesty" wherever occurring, in Central Acts and Ordinances. According to clause (2) of of Art. 1 of this Order, it was to come into force on the 23rd day of March 1956. He has, therefore, argued, on the basis that the post of the Governor‑General of Pakistan did in fact for some time exist, that it should be construed that the bonds in both these matters were properly taken and executed, and consequently rightly forfeited on the admitted failure of the accused to appear before the relevant Courts. It has not been denied that the post of the Governor‑General of Pakistan did exist until the 23rd of March 1956. The position as set out in P L D 1957 S C (Ind.) 431 and A I R 1956 All. 123, can be clearly distinguished, in view of the contentions raised by the learned A. A.‑G. at the bar since the ruling of the Supreme Court of India solely relied on the fact that there was no mention of the words "King‑Emperor or Emperor of India, Queen Empress or Empress of India" in clause (4) of the Adaptation of Laws Order, 1950.

9. In the President's Order 1 of 1961, a clear indication has been given as to the substitution to be made for the words "Crown, His Majesty or Her Majesty" wherever occurring. Consequently, I would sustain the objections raised against the two references made on this point.

10. The next point has particular reference to the order of the learned Sessions Judge referring to the aspect that a bond executed by a surety cannot be enforced in the absence of a bond by the accused person. Mr. Iqbalur Rahim hr‑ Abdul Rehman has referred to Maxwell's Interpretation of Statutes, 10th Ed., at page 263, on the point that it is unquestionably a reasonable expectation that, when the Legislature intends the infliction of suffering, or an encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers and privileges, it will not leave its intention to be gathered by mere doubtful inference, or convey it in `cloudy and dark words' only, but will manifest it with reasonable clearness. The rule of strict construction does not, indeed, require or sanction that suspicious scrutiny of the words, or those hostile conclusions from their ambiguity or to from what is left unexpressed, which characterize the judicial interpretation of affidavits in support of ex parse applications, or of Magistrates' convictions, where the ambiguity goes to the jurisdiction. But the rule of strict construction requires that the language shall be so construed that no cases shall be held to fall within it which do not fall both within the reasonable meaning of its terms and within the spirit and scope of the enactment. Where an enactment may entail penal consequences, no violence must be done to its language to bring people within it, but rather care must be taken that no one is brought within it who is not within its express language.

11. This he has done on the two principles referred to by him that a forfeiture is an onerous debt involving a lenient view of whatever consequences may arise, and that the language of the bond should be strictly construed. I have given this matter my serious consideration, and I hold, for reasons already given, that granting that the provisions of such a Penal Act should C be strictly construed, there is no doubt that the forfeiture of the bond executed in 1962 by Muhammad Ismail and Abdul Rehman were correct, and in accordance with the law.

12. The learned‑A. A. G. has contended in reference to the order of the learned Sessions Judge, Karachi, that even though the accused had not executed a bond, he should be held liable on the basis of his affidavit dated 26th March 1962. According to this affidavit, he agreed to bind himself in a certain sum for the production of the accused in that relevant Court. The relevant affidavit is dated the 26th March 1962. In that affidavit, the surety had stated that on failure of the accused to attend Court, he undertook to pay the amount of the bond to the Government. Reliance was placed on Rambilas Sharma v. Emperor (A I R 1940 Pat. 375) and Babar Hussain and others v. The State (A I R 1956 All. 78). On the argument that the accused had not signed the bond, and that instead the surety had done so, reliance was placed on Abdul Aziz v. Emperor (A I R 1946 All. 116), where a Division Bench of that Court held that under section 499, Cr. P. C. the surety does not guarantee the payment of any sum of money by the person accused who is released on bail, but guarantees the attendance of that person. He is a surety for attendance and not a surety for payment of money. His contract and the contract of the person released on bail are independent of each other. The fact that the person released on bail did not sign the bond for attendance when called upon, does not make the bond executed by the surety an invalid one.

13. In Keshav Narain Choudhary and others v. The State (A I R 1954 Pat. 200), a Division Bench similarly held that under the Criminal Procedure Code there is no question of a principal and a surety. Under it, there can be surety without a principal, in the sense that the surety may undertake to produce a person released on bail, yet the person so released may not have executed any bond for his own appearance. Section 499 contemplates two cases: one when the accused is to be released on his own bond and the other when the accused is released on bail. The execution of a bond by the accused is imperative and, in the case of release of the accused on bail, a bond by sureties has to be executed in addition. If a bond is not taken from the accused himself but only from a surety, and the accused is released on bail, this would be an irregularity, but it would not make the bond executed by the surety invalid. This decision was given after reference to the case law on the point from as early as 1939, as A I R 1939 All.

682. The contention of Mr. Iqbalur Rahim that there are two pre‑requisites of Form 42 in Schedule V of the Cr. P. C., and that if one part is incomplete, the whole is incomplete and, therefore, unenforceable, is obviously untenable in view of the fact that bonds, for reasons given earlier, as executed by the accused and by the surety, are independent of each other.

14. There has undoubtedly been a conflict of views in this sub‑continent on the enforcibility or forfeiture of a bond in circumstances in which a surety has executed a bond and the accused has not done so, but for reasons I have already given, and in view of the law earlier referred, to, I am clearly of the view that although in terms of A I R 1954 Pat. 200, it may be an irregularity that no bond of the accused person has been taken, it does not make a bond admittedly executed by the surety, invalid.

15. My conclusion therefore is that the bonds executed in favour of the Governor‑General of Pakistan by Ismail and Abdul Rehman are legal and enforcible in both these cases. Consequently I decline to accept the references made by the learned Sessions Judge, Karachi dated 7th October 1963 and by the Learned Additional Sessions Judge, Karachi dated 7th November 1963. K.B.A. References rejected.