2004 PLP 563 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑This petition for leave to appeal has been filed against the judgment dated 16th September, 2002, passed by High Court of Sindh, Circuit Bench at Sukkur, whereby criminal revision filed by petitioner has been dismissed.

2. Precisely stating the facts of the case are that petitioner Nawazo stood surety for Aadat, Jani and Jaffar who are accused in a murder case vide F.I.R. No.51 of 2000 lodged with Police Station Khanpur Mahar. He moved an application to the trial Court on 3rd December, 2001 that the accused are likely to abscond as such they be taken into custody. Since the trial Court failed to take them into custody, therefore, they made their escape good. Subsequently, the petitioner was directed by the trial Court vide order dated 20th March, 2002 to pay the full surety amount of Rs.6,00,000 (six lacs). Petitioner challenged the said order before High Court of Sindh, Circuit Bench Sukkur whereas all the accused are still at large. Learned High Court by means of impugned order dismissed the criminal revision filed by the petitioner.

3. Learned counsel contended that petitioner being surety of the accused persons produced them before the Court an 3rd December, 2001 alongwith the application that their bail bond may be cancelled and they may be taken into custody as they are preparing to abscond. Therefore, learned trial Court may have taken them into custody as per the requirement of subsection (3) of section 502, Cr.P.C. He further stated that issuing notice of the application to the accused persons was not warranted because in the meanwhile, they have made their escape good as‑such petitioner was not responsible to cause their appearance before the Court.

4. On the other hand, Mr. Suleman Habibullah, learned Additional Advocate‑General, Sindh contended that in all fairness notice of the application was necessary because unless the accused persons had not arranged alternate surety bonds, there was no occasion to take them into custody because the order of grant of bail to them was intact.

5. We have heard both the learned counsel for the parties and have also gone through the contents of the application. Its transformation in English is reproduced hereinbelow:‑‑ "Sir, I applicant Nawazo son of Kehar Mahar by caste submit that in the above, I am surety of accused namely Aadat, Jani and Jaffar. As I am unable to take care of the accused named above, in future, as the accused are in preparation to abscond away in the above case, they are not under my control and they might abscond, due to that reason, I produce the above accused. This Honourable Court 'may kindly cancel my bail bond and take the 'accused in its custody, in the interest of justice."

6. It is to be seen that section 502, Cr.P.C. regulates the procedure for discharging of surety and in view of the facts and circumstances of instant case subsection (3) of section 502, Cr.P.C, is applicable. Because once the accused persons have appeared or their appearance have been caused by the petitioner alongwith application, making request to discharge the surety bonds, the Court may have taken them into custody with direction to them to furnish fresh surety bonds. Unfortunately, the provisions of subsection (3) of section 502, Cr.P,C., were not complies with as a result whereof the accused‑persons made their escape good because when the notice was issued to them, the case was adjourned and the apprehension which was expressed by the petitioner in the application proved to be‑correct and they made their escape good for which they were already preparing. Therefore, under these circumstances, we are of the opinion that after the submission of application, it was not the responsibility/duty of the petitioner to again produce the accused person before the Court for the disposal of the application. In such‑like cases decision is required to be taken expeditiously because if the time is allowed to accused, then they are bound to take undue benefit as it has happened in this case. Thus for the foregoing reasons, instant petition is converted into appeal and allowed, as a result whereof, order passed by the High Court as well as by the trial Court dated 16th September, 2002 and 20th P March, 2002, respectively, are set aside. N.H.Q./N‑185/S Petition allowed.