1992 P Cr (PLP)

This revision application filed under section 435/439, Cr.P.C., raises a short point which may possibly be of some practical interest.

2. Applicant Abeel Badshah stood surety for accused Zaheer Khan son of Zamir Gut in a case pending against him in the Court of IInd Additional Sessions Judge (West) Karachi, for the offence under section 13-D of the Arms Ordinance, 1965, and bound himself in the sum of Rs.10,000 to produce the said accused before the Court on every date of hearing till otherwise directed. On 19-8-1989 the applicant appeared before the Court and applied for being discharged from: the bond under section 502, Cr.P.C. when he was informed that bail bond was already forfeited due to absence of accused. It is the case of the applicant that accused Zaheer Khan son of Zamir Gut for whore he had stood surety was arrested in Crime No.53 of 1989 Mithadar Police Station, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and Crime No.54 of 1989, Mithadar Police Station under section 13-D of the Arms Ordinance, 1965, under a fictitious name of Shabbir Gut son of Achar Gul and he was confined in Juvenile Jail Landhi. It was, therefore, pleaded by the applicant that it was not possible for him to produce a person before the Court who is already in custody (under a fictitious name). The refusal of the learned Additional Sessions Judge to discharge the applicant as surety of accused Zaheer Khan son of Zamir Gul has given rise to the present revision application.

3. I have heard Mr. Wazir Ali, learned counsel for applicant and Mr. Jalaluddin Baloch, learned counsel for the State.

4. Section 502, Cr.P.C. lays down the procedure for the discharge of sureties in the following words:-- "Discharge of sureties.

(1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants. (2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him. (3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to custody."

5. This section contemplates release of a surety only on the appearance of the accused before the Court. The case of Fatehchand Wadhumal v. Emperor reported in A I R 1940 Sindh 136 is clear on this point, wherein a Division Bench-of the Sindh Chief Court observed as follows:-- "Section 502 Criminal P.C. does not provide for a Magistrate discharging a surety as soon as he applies. The Magistrate shall issue a warrant directing the arrest of the accused, and only on the appearance of the accused before him does the Magistrate then discharge the surety:"

6. Therefore, the learned Additional Sessions Judge was justified in directing the applicant to produce the accused before he is discharged. The matter, however, does not rest here. It is the case of the applicant that the accused for whom he had stood surety is already confined in Juvenile Jail Landhi, after he was arrested by Mithadar police under a fictitious name of Shabbir Gul son of Achar Gul, and before penalising him he was entitled to an inquiry about the identity of the accused. I must say at once that the argument employed by learned counsel for applicant has force in it. Faced with this situation, the learned counsel for the State, has conceded that on account of the peculiar and strange situation he would not support the impugned orders.

7. In view of the observations made in para. 6 ante; I would set aside the order by which the bail bond of accused Zaheer Khan son of Zamir Gut was forfeited. The case will go to the Additional Sessions Judge or the Magistrate, C if it is transferred to him for holding inquiry about the detention of Zaheer Khan son of Zamir Gut under the fictitious name of Shabbir Gut son of Achar Gul, who shall pass necessary orders on the application made by applicant C under section 502, Cr.P.C. in the light of the finding of the inquiry, as the case may be.

8. In the result the revision application is allowed in the above terms. N.H.Q./A-1224/K ????? Revision allowed.