1996 P Cr (PLP)

S. Azizur Rehman for the State. This is a criminal revision application filed under sections 435, 439 read with section 561-A, Cr.P.C. directed against the order, dated 12-11-1995 passed by IIIrd Additional Sessions Judge, Karachi, Sessions Case No.31/91 State v. Pervaiz alias Kharati and others, F.I.R. No.201/91 registered under section 302/201/34, P.P.C: of Police Station Nabi Bux whereby IIIrd Additional Sessions Judge refused to accept surety on the basis of the report of the Sub Registrar "T" Division, Karachi, offered by Abdul Rahim son of Allah Bux for accused Pervaiz alias Kharati in the sum of Rs.50,000. I have heard Mr. S.A. Ghaffar, learned counsel for the applicant, and Shaikh Azizur Rehman, learned counsel for the State. Learned counsel for the State has not supported the impugned order and has stated that same is not in accordance with law and is liable to be set aside. Accused Karati was granted bail in the sum of Rs.1,11,111 with P.R. Bond in the like amoount by IIIrd Additional Sessions Judge in the above case. The accused offered sure of Abdul Rahim son of Allah Bux whose sale-deed in original was sent for verification to the Sub-Registrar and his National Identity Card was also sent to the Director-General of Registration, District Registration Office, Karachi, for verification. The Sub-Registrar in his report stated that the sale-deed sent to him was executed between Muhammad Siddiq son of Ahmad Khan and Abdul Rahim son of Allah Bux in respect of the property bearing No.3519 situated at Daryaabad, Lyari, Karachi, as registered in the office of Sub-Registrar "T" Division, Karachi. The Director-General as per information through letter, dated 2-11-1995 informed Serishtedar of IIIrd Additional Sessions Judge that Abdul Rahim son of Allah Bux is registered against Citizen Code No.508-45-251040. Section 499 of the Code of Criminal Procedure reads:-- "499. Bond of accused and sureties.

(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the Police Officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the Police officer or Court, as the case may be. (2) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session o: other Court to answer the charge. " Reference is made to Muhammad Saleem v. State PLD 1970 Kar. 187 at page 192 wherein learned Judge in Chamber observed:-- "Apart from section 499, Cr.P.C. there is no other provision which deals with this subject. However, it will be found that in section

122. Cr.P.C. there is a procedure prescribed for ascertaining solvency of the surety in cases where a person is ordered to execute a bond for good behaviour with sureties in Accordance with section 118 Cr.P.C The answer to the above problem has to be found from section 499, Cr.P.C On a plain reading of this section two conditions are necessary before any person is released on his own bond. These are, firstly, that he must execute a bond for such sum of money as the Court may think sufficient and that, secondly, a bond has to be executed by one or more sureties conditioned that such person shall attend. at the time and place mentioned in the bond and shall continue as to attend until otherwise directed by the Court. In other words, it is the Court which has to determine the sufficiency of the bond as well' as the sureties. This determination must be a judicial determination as the function of granting bail is of judicial function and not an administrative ....... It is, therefore, implied that such surety must be a person competent to contract and that further he must be also possessed of the amount of the bond before he can be regarded as a fit person to stand surety. Thus, according to, me, the word 'sufficient' would include not only the solvency of the person offering himself as the surety but also his fitness to enter into contract." At page 194 it has further been observed: "Although no procedure for holding an enquiry is prescribed in section 499, Cr.P.C., yet I am of the view that the determination of the sufficiency involves the examination similar to that of an enquiry as is prescribed in section 122, Cr.P.C. and that, therefore, these observations will also apply with equal force. Thus, if the Magistrate is unable to come to the conclusion that the surety is a fit person he should be justified in rejecting surety end asking for another fresh surety. In case if he accepts a surety and it transpires that the surety has been wrongly accepted because of mistake, fraud or otherwise, then he is empowered under section 501, Cr.P.C. to order for arrest of that parson and further to direct him to find other sufficient surety." From the above provision of law and the case cited it would appear that Court has to see whether the surety is solvent and fit to be accepted, for that if necessary he has to hold an enquiry and has to pass orders accordingly. In the present case, the learned IIIrd Additional Sessions Judge has not stated in the order as to whether surety is not solvent or is not fit to be accepted but instead of that he has stated that in view of the report of the Sub-Registrar surety is not accepted whereas the Sub-Registrar has not stated that the surety is not owner of the said property, so also it is not stated the N. I. Card is forged, yet the learned Judge without stating as to solvency, sufficiency and fitness of surety refused to accept surety. The impugned order in the circumstances cannot be said to be in accordance with law. Accordingly, the said order is set aside and IIIrd Additional Sessions Judge, Karachi South is directed to examine the solvency, sufficiency and fitness of the surety end pass necessary orders, consequently revision petition is allowed. N.H.Q./A-1605/K Revision petition accepted.