1999 P Cr (PLP)

Malik Sultan Ahmad v. The State 1986 PCr.LJ 1446; Bela Singh v. Emperor AIR 1919 Lah. 67; Haji Abdul Ghani v. The State PLD 1970 Kar. 46 = 1970 PCr.LJ 511; Bahadur Khan v. The State 1976 PCr.LJ 1283; Allah Rakha Sulehria v. The State 1985 PCr.LJ 907; Hasan v. The State 1990 ALD 455(2); Ashiq Ali and another v. The State 1991 PCr.LJ 681 and Muhammad Khan v. The State 1986 PCr.LJ 2181 ref. Muhammad Shafi for Applicant. Mian Khan Malik, Addl. A.-G. for the State. Applicant stood surety for two accused persons namely Sher Muhammad and Anwar in a Session Case bearing No. 117 of 1996 arising out of crime No. 12 of 1995 of Police Station Mirpur (Old). Subsequently, the bail granted to the above mentioned two accused was cancelled by the Sessions Judge Mirpur Khas in Criminal Revision No. 124 of 1996 by passing an order on an application filed by the complainant under section 497(5), Cr.P.C. One of the grounds prevailed upon with the learned Sessions Judge was that the offence involved in the said crime was scheduled offence as specified in the Suppression of Terrorist Activities (Special Court) Act, 1975 and, therefore, the said Court was not competent to grant bail. It is not denied that the day when the order of granting bail was recalled by the learned Sessions Judge both the above named accused were present before the Court.

2. Now the surety/applicant is aggrieved by the order of learned Judge Special Court-II for (Suppression of Terrorist Activities), Hyderabad whereby bail/surety bonds were forfeited and the surety was directed to deposit the entire surety amount of Rs.60,

000. It is argued by Mr. Muhammad Shafi that since the bail order was recalled in presence of accused persons, the surety is not liable either to produce them before the Special Judge nor the surety bonds are liable to be forfeited. According to the learned counsel for the petitioner, the applicant stood surety to produce the two accused before the Sessions Court and not before the Special Court (Suppression of Terrorist Activities), Hyderabad and, therefore, once the initial order of granting bail was recalled it is to be presumed that the bail bond/surety bond stood discharged. Reliance is placed on Malik Sultan Ahmad v. The State 1986 PCr.LJ 1446 where a learned Single Judge of this Court while following the rule laid own in the case of Bela Singh v. Emperor AIR 1919 Lah. 67, held that the order of Special Judge Anti -Corruption forfeiting surety of the applicant was not legal as the applicant in that case stood surety for the accused before the Deputy Commissioner on 30-1-1983 which order was recalled by me Military Court.

3. There are other reported cases which support the applicant's contention. In Haji Abdul Ghani v The State PLD 1970 Kar. 46 = 1970 PCr.LJ 511, it was held, inter alia, that the obligation of a surety to produce accused is confined to the Court which has granted bail and where it is not specified that such surety would be bound to produce the accused person before the transferee Court, the surety cannot be penalised for failure of accused to appear in the transferee Court. This view was followed by a learned Single Judge of Lahore High Court in the case of Bahadur Khan v. The State 1976 PCr. LJ 1283 This view was also upheld by Lahore High Court in Allah Rakha Sulehria v. The State 1985 of PCr.LJ 907 and by this Court Hasan v. The State 1990 ALD 455(2). See also Ashiq Ali and another v. The State 1991 PCr.LJ 681 and Muhammad Khan v. The State 1986 PCr.LJ 2181. This is now the consistent view of Sindh and Lahore High Courts and, therefore, we are not inclined to take a different view.

4. It is an admitted position that the applicant stood surety for the above named two accused persons to produce them before the Court of Sessions which order was recalled by the learned Sessions Judge in presence of accused At the rime of recalling that bail order by the Sessions Judge, it may be due to some oversight that the surety bonds were not discharged which has resulted in giving rise to the present controversy, Learned Judge Special Court-II (Suppression of Terrorist Activities), Hyderabad committed error by not appreciating that the surety bond was executed by the applicant to produce the two accused persons before the Court of Sessions and not before the Special Court (Suppression of Terrorist Activities). The moment bail order was recalled when the two accused persons were present before the Sessions Court, in our considered view, the responsibility or liability of the applicant to produce the two accused persons before any other Court stood discharged. This being the legal position, learned Advocate Additional-General has conceded for grant of this Criminal Revision Application.

5. As a result of the above discussion, we accept this application, set aside the impugned order, dated 10-8-1998 passed by District and Sessions Judge, Mirpur Khas and discharge the bail bonds executed by the surety. H.B.T./G-73/K Revision Application accepted.