1997 PLP 1677 (MLD)

S. Madad Ali Shah for Applicant. Abdul Sattar Kazi, A.A.‑G., Sindh for the State. Date of hearing: 12th September, 1996. Applicant Ghulam Muhammad stood surety for accused Imam Bux Ari who was involved in Crime No. 1 of 1990 registered at Police Station Manjhand and was on bail granted by the learned trial Court in Sessions Case No.74 of 1990 pending in the Court of 1st Additional Sessions Judge, Dadu. According to the impugned order since accused Imam Bux Ari remained absent on 3‑2‑1994 and subsequent dates of hearing till he died on 31‑8‑1994, therefore, bail bond of the applicant was forfeited and penalty of Rs.20,000 was imposed on him Fide order, dated 3rd May, 1995 by the learned trial Court. He has challenged the said order‑ in this revision application under section 439, Cr.P.C. I have heard Mr. Syed Madad Ali, Shah learned counsel for the applicant and Mr. Abdul Sattar Kazi learned A.A.‑G. for the State and also perused the record. From the perusal of the case diaries it appears that accused Imam Bux Ari had been attending the trial Court regularly but he was called absent on 3‑2‑1994. The case diary indicates that one Muhammad Qasim had informed the Court that accused Imam Ari was detained in Sub‑Jail Mehar. No order for his production was passed and the matter was adjourned to 5‑3‑1994. On this date of hearing as well as on 7‑4‑1994, 14‑5‑1994, 19‑6‑1994, 25‑7‑1994 and 24‑8‑1994 the accused attended the Court. He died on 31‑8‑1994 but on 26‑9‑1994 and 24‑10‑1994 he was called absent and it was ordered that non -bailable warrants be issued against him and the surety (present applicant) may also be served with notice. Same order was repeated on 17‑11‑1994, 18‑12‑1994. 4‑1‑1995, 4‑2‑1995 and 19‑3‑1995. On 16‑4‑1995 after recording the statement of the process server it was ordered that since accused Imam Bux Ari is reported to have died therefore, proceedings stood abated against him. Keeping in view the above background of the proceedings it is to be seen whether the learned trial Court was justified to make the following observations in the impugned order:‑‑ "On 3‑2‑1994 accused Imam Bux remained absent and continued to remain absent from this Court till he died on 31‑8‑1994. Such report regarding his death was received in this Court, on 16‑4‑1995 and proceedings against accused Imam Bux Ari were ordered to be abated. It is now to be examined whether the surety has failed to discharge his liabilities for producing the accused before this Court on various dates of hearing. From the diary, it appears that the accused Imam Bux was called absent on 3‑2‑1994. No intimation regarding his absence was received in this Court, hence notice to the surety was issued under section 514, Cr.P.C. Today surety Ghulam Muhammad is present and has requested for mercy. " A plain reading of the abovequoted observations in the light of relevant facts available on record makes it abundantly clear that the impugned order was passed by the learned trial Court without proper application of judicial mind. On 3‑2‑1994 the accused was called absent but one Muhammad Qasim informed the trial Court that he was confined in Sub‑Jail Mehar and then on 5‑3‑1994 the accused produced certificate about his confinement in Jail on the previous date. Thereafter till his death he regularly attended the Court. Therefore, as was rightly submitted by the learned counsel for the applicant the question of his absence and his production by the surety does not arise. Learned A.A.‑G. frankly conceded to this position and has not supported the impugned order. I am of the humble view that once the surety enters into a bond to produce the accused at the time and place as specified in the bond then he is responsible for the appearance of the accused in that particular Court where the bonds were executed till such time his bond is legally effective. Under section 502, Cr.P.C. the surety can apply for discharge or return of documents and Court can discharge the surety only on the appearance of the accused but in case of death of the accused the surety ceases to have any control over him and in such a situation no further action is required to be taken as he stands automatically discharged. In the instant case the accused had expired on 31‑8‑1994 and order of abatement was passed on 16‑4‑1995 therefore, legally there was absolutely no justification to pass the impugned order on 3rd May, 1995. In view of the above, since the impugned order is void, ab initio and illegal, therefore, it is set aside and the revision is allowed. N. H. Q./G‑18/K Revision petition allowed.