1999 PLP 396 (MLD)

On 29-4-1997 the applicant stood surety for the abovenamed accused Abdul Rehman and such a writ of release was issued by .the trial Court and it was sent to Superintendent Central Prison Karachi for compliance. The accused Abdul Rehman was not released as he was also facing trial in other cases before other Courts in which he was confined as under trial prisoner. 10-6-1997 accused Abdur Rehman was produced by the Jail Authorities before the Court of Vlth Additional Sessions Judge, Karachi South in Sessions Case No. 490 of 1995 and the case was adjourned to 13-6-1997 and he was remanded to judicial custody as is evident from the case diary. After his case was adjourned he absconded from police custody. Learned Vth Additional Sessions Judge forfeited the bail bonds and applicant was served with a notice under section 514, Cr.P.C. to which applicant surety furnished explanation and by the impugned order dated 7-1-1998 trial Court ordered that surety should produce the accused in Court, failing which legal action would be taken against him. Learned counsel for the applicant/surety has contended that accused Abdur Rehman was not released from the Jail and he absconded from police custody. He submitted that surety is not liable to produce the accused. It is, thus, argued that the impugned order is bad in law. Mr. Ashique Hussain Mehar, learned counsel for the State has frankly conceded to the arguments of learned counsel for the applicant/surety. I have heard the learned counsel for the applicant/surety as well as counsel for the State and perused the impugned order of the trial Court and material on record. On 9-3-1998 this Court sent the report from the Superintendent Central Prison Karachi as well as from the S.H.O. Police Station Kalakot. The relevant portion of the said order is reproduced below:- "Call for the report form the Superintendent Central Prison Karachi well as from the S.H.O. Police Station Kalakot to intimate this Cour; whether the said accused was released on the basis of release order issued by the trial Court. " In compliance to the order of this Court stated above reports from Superintendent Central Prison Karachi and S.H.O. Kalakot Karachi were received. The relevant report of Superintendent Central Prison Karachi is reproduced herein below in extenso:- "I have the honour to refer Honourable Court Letter No./GP/Rev/Appln/ 18 to 20/98, dated 13-3-1998 on the subject noted above and to submit that accused Abdul Rehman son of Dad Muhammad was granted bail in Case No. 615 of 1995 (F,.I.R. No. 52 of 1995 P.S. Kalakot) by learned Additional Sessions Judge (South) Karachi and necessary release entries were made on record of this office but was obtained in other cases. He was sent before the Court of Additional District Judge VIth South Karachi on 10-6-1997 for trial in case F.I.R. No.3 of 1995 Police Station Kalakot Sessions Case No.49 of 1995 under section '24/353/34 Qisas and Diva', under Proper Police escort, when he escaped from custody of police escort. At present he is not confined in this prison. This is for favour of kind information. " It is crystal clear from the aforementioned report that absconding accused Abdul Rehman was never released from the Jail and he absconded from the custody of police. The liability of surety starts from the day when accused is released from the custody in lieu of bail bond furnished by surety. The bail is nothing but change of custody, as after the rent of hail and consequent released from custody accused is placed in the custody of the surety and he is responsible to produce him (accused) in the Court if and when ordered or required. In case of non-appearance or non-production of the accused before the Court, the surety is liable to penalty under law. In the case in hand, accused Abdul Rehman was never released from prison and he admittedly, absconded from police custody. Accordingly, impugned order is set aside and revision application is allowed. Since main application has been disposed off, the Miscellaneous Application No. 322 of 1998 has become infructuous and the same is also disposed of accordingly. N.H.Q/A.225/K Revision petition allowed.