P L D 1962 (W (PLP)

Date of hearing : 10th November 1961. These three criminal revisions are allied in character, each relating to a surety in a criminal case whose bond was forfeited. The three accused persons, Gulab Khan, Mohsin Khan and Jan Khan, were Pawindas, who were alleged to have committed the offence of smuggling under Martial Law Regulation No. 40, read with Regulation No.

27. An application for bail was made by each of them to the Additional District Magistrate of Lyallpur, Mr. Muzaffar‑ud‑Din, who, on the 26th of January 1961, granted "interim bail" "for the present" till the 30th of January. The bail bonds, however, were not produced until the 2nd of February 1961, but on that date they were accepted by the Magistrate and the accused were released on bail. These bonds required the accused to appear in Court at each hearing until the case was decided. At the next hearing, the accused did not appear, and it was reported to the Magistrate that each had left Rs. 5,000 with the surety for the purpose of being utilised in the event of the forfeiture of the bonds. It subse quently transpired that only one amount of Rs. 5,000 had been left behind and this had been left by Mohsin Khan accused's brother, Masoom Khan, with Raja Muhammad Kazam, an attesting witness of the surety bond. This amount has been paid in Court by Raja Muhammad Kazam.

2. Notices were issued to the sureties and in due course a forfeiture order was passed on the 17th of April 1961, forfeiting the entire amount of Rs. 10,000 In each case. In doing so, the Additional District Magistrate purported to act under section 514 of the Code of Criminal Procedure. He further directed that a separate case be started "against all the persons concerned" under Martial Law Regulation No. 32, because it appeared to him that "Muhammad Ayub Khan respondent, in collusion with Raja Muhammad Kazam, Lambardar and Barkat Ali, attesting witnesses, had facilitated the accused in absconding and thus helped to save him from legal punishment." The same observa tion was made in respect of the other two sureties, Muhammad Nazir Khan and Abdul Majid.

3. The sureties filed separate appeals to the District Magis trate, who, however, declined to interfere on the ground that this being a Martial Law case, he had no jurisdiction as an appellate court under section 515 of the Code of Criminal Procedure. According to the learned District Magistrate, even the Additional District Magistrate had assumed a jurisdiction which was not available to him and if he had availed of it, it was because this was "the most just and equitable analogy available".

4. I should at once say that jurisdiction is available to the learned District Magistrate under the Code of Criminal Procedure, which states in section 5 that all offences under the Pakistan Penal Code, shall be investigated, inquired into, tried and other wise dealt with according to the provisions of the Code and that all offences under any other law shall also be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise, dealing with such offences. Now, the special law in the present case is constituted by the Martial Law Regulations and Orders and the procedure prescribed for bail is stated in Martial Law Administrator's Order No. 38 to be that a bail application is presented to the District Magistrate or his nominee who may order bail against appropriate cash or personal sureties. If subsequently the case is referred to a Martial Law Court, such court may, at its discretion cancel the bail. There is no further provision in the Regulations or Orders, and learned counsel's argument that because there is no provision for forfeiture, although there is a provision for bail, an order for forfeiture cannot be passed, is obviously faulty. Section 5 of the Code clearly says that except for any special provision, the Code will apply to every matter relating to the proceeding of a criminal trial. Section 514 will, therefore, apply, and was applied rightly, and the order was appealable to the District Magistrate under section 515 of the Code.

5. It was then argued that in effect there was no order granting bail and that, consequently, there could be no forfeiture. It will be recalled that although the order granting bail was passed on the 26th of January 1961 and was to operate until the 30th of January, bail bonds were not produced until the 2nd of February. Now, since these bail bonds were consciously accepted by the Magistrate be must be cognizant of the fact that his previous order operated till the 30th of January. It is, not urged that any deception has been practised upon him. It may be that he limited the operation of the order, in the first instance, till the 30th of January because the investigator had promised to complete the case by that date, and since the case was not completed, be ordered bail. In any case, whether there exists or does not exist a separate order granting bail, the fact that a bail bond is produced before a Magistrate and is accepted by him, constitutes by itself an order of bail.

6. The next objection was that under section 499 of the Code of Criminal Procedure, the bail bond should "require that such person shall attend at the time and place mentioned in the bond" but that here the accused was required to attend the Court only and there is no specification as to the Court and the date of hearing. It is obvious that when a person is released on bail before the trial begins and the Court where the trial is to take place has not been named, the accused waits until he receives intimation that he has to appear on a certain date in a certain Court. It is, therefore, enough that the bond should say that the accused will appear in Court at each hearing and continue to attend until the case is finished.

7. Lastly, it was objected that the amount of Rs. 5,000 had been taken from Raja Muhammad Kazam, a person who was neither the principal accused nor a surety. With this part of the case the petitioners before me are not concerned, but Raja Muhammad Kazam himself deposited the money in Court, and if he stated to the Magistrate that this had been paid to him by a brother of one of the accused as a guarantee against his running away, then I do not see anything improper in its being appropriated against the surety bond. The Magistrate's observa tion in respect of the application of Martial Law Regulation No. 32, however, is not clear to me. That Regulation is to the following effect:‑ "Whoever misuses or attempts to misuse facilities, conveni ences, etc., provided by the State for official use or whoever commits other mal‑practices in any manner or form, shall be punished. Maximum punishment 14 years' rigorous impri sonment."

8. What is alleged against the sureties and Raja Muhammad l Kazam and Barkat Ali by the Magistrate is that they had "facilitated the accused in absconding" This does not amount to a misuse of "facilities" provided by the State for official use. A clear instance of the application of this section will be the misuse of a telephone which is installed for official purposes.

9. These petitions are dismissed, but the cases are remanded to the District Magistrate in order that he may decide, with reference to the gravity of the offence and the value of the property involved, whether total forfeiture is justified. A. H. Petitions dismissed.