P L D 2005 Lahore 610 (PLP)

This judgment will dispose of Criminal Revision No.309 of 2005 filed by Muhammad Yasin, Criminal Revision No.310 of 2005 filed by Malik Noor Muhammad and Criminal Revision No.311 of 2005 filed by Rehmat Ali. Criminal Revision No.311 of 2005:

2. The necessary facts giving rise to this revision petition are that Rehmat Ali petitioner stood surety for Muhammad Asif alias Achha accused who was admitted to ad interim pre-arrest bail in case F.I.R. No.180 of 2001 for the offences under sections 302/324/34, P.P.C. registered at Police Station Bhatti Gate, Lahore, on 16-5-2003 till 26-5-2003. On the subsequent dates i.e. on 26-5-2003 and 2-6-2003 the matter stood adjourned. Finally on 3-6-2003 bail application of the accused was dismissed due to non-appearance and notice under section 514, Cr.P.C. was issued to surety by Additional Sessions Judge, Lahore. In response to the same, the surety filed reply and learned Additional Sessions Judge, Lahore being not satisfied with the reply vide order dated 6-4-2005 forfeited the surety bond submitted by Rehmat Ali petitioner directing him to deposit Rs.2,00,000 the amount of surety bond in the Government treasury within ten days. Criminal Revision No.309 of 2005 and 310 of 2005: After the dismissal of above said bail application Muhammad Asif alias Achha along with his co-accused Muhammad Mohsin once again on 18-3-2004 (i.e. after about eight months) applied for the grant of pre-arrest bail and learned Additional Sessions Judge, Lahore allowed ad interim pre-arrest bail till 26-3-2004. Petitioner Muhammad Yasin stood surety for Muhammad Asif alias Achha whereas Malik Noor Muhammad (petitioner) stood surety for Muhammad Mohsin and filed surety bonds in the sum of Rs.One Lac each respectively. On 3-4-2004 bail application of accused was dismissed due to their non-appearance and proceedings against the sureties under section 514, Cr.P.C. were initiated. The learned Additional Sessions Judge, Lahore after providing proper opportunities vide order dated 6-4-2005 while forfeiting the surety bonds submitted by the petitioners Malik Noor Muhammad and Muhammad Yasin, directed them to deposit Rs.1,00,000 each the amount of surety bond in the Government treasury within ten days. Through these criminal revisions legality of both the said orders passed on the same day i.e. 6-4-2005 has been challenged.

3. In support of these petitions, it has been argued by learned counsel for the petitioners that bail bonds submitted by the petitioners were for the appearance of the accused on specific dates whereupon the accused appeared before the Court, therefore petitioners could not be penalized for the accused persons non-appearance before the Court after the specific dates. In this connection reliance has been placed by the learned counsel for the petitioners on the cases titled Abdul Hafeez v. The State 1993 MLD 541 and Sardar Muhammad v. The State 1998 PCr.LJ

236. It has further been argued by learned counsel for the petitioners that petitioners had not stood as sureties for the accused for any monetary gain and that the petitioners had done so only on humanitarian consideration and that while passing the impugned orders the Additional Sessions Judge, Lahore had taken a very harsh view.

4. I am afraid contentions raised by learned counsel for the petitioners are not persuasive in nature. The acceptance of such arguments would amount to require the submission of fresh bail bonds by the surety for each date of hearing to which the pre-arrest bail is adjourned. Under section 499, Cr.P.C when bail is allowed the accused and surety are required to file the bonds i.e. bail bonds and the surety bonds. This section reads as follows:-- "499. (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 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 or other Court to answer the charge." The bare perusal of the section reveals that the surety is bound to produce the accused before the Court on the dates of hearing until otherwise directed by the Court concerned. On filing the bond the surety becomes responsible for the production of the accused before the Court on each and every date of hearing till the final decision of the case/matter unless directed otherwise by the Court concerned. Admittedly in the present case, the orders passed by the Court at the time of granting ad interim pre-arrest bail and on different dates during the proceedings, are silent with regard to the liability of the surety that he is responsible for the production of the accused only for a specific date. No doubt the statute (Criminal Procedure Code ) is silent about the frame of bond to be executed by the surety as required under section 499, Cr.P.C., however, High Court under section 554, Cr.P.C., has the power to make rules about the frame of form for the smooth running of the affairs of the criminal Courts. The relevant portion of the said section reads as under:- "554(1) . (2) Power of {***} High Courts to make rules for other purposes. Every High Court may, from time to time, and with the previous sanction of the Provincial Government. (a) ....................................................................................................... .. (b) frame forms for every proceeding in the said Courts for which it thinks that a form should be provided; (c) (d) Under Rules and Orders of High Court of Judicature at Lahore Volume VI, Part-B Criminal Forms (Edition 1958), the frame of form under section 499 Cr.P.C., has been prescribed against item No.67 which reads as follows: BOND AND BAIL BOND ON A PRELIMINARY ENQUIRY BEFORE A MAGISTRATE. (Section 496 and 499 of the Code of Criminal Procedure, Schedule V, Form XLII) District In the Court of_____________________ Magistrate _________ Class I (name), of (place) being brought before a Magistrate of... ....class, charged with the offence of and required to give security for my attendance in his Court at the Sessions Court, if required, do bind myself to attend at the Court of the said Magistrate on every day of the preliminary enquiry into the said charge, and should the case be sent for trial by the Sessions Court, to be, and appear, before the said Court when called upon to answer the charge against me, and in case of my making default herein, I bind myself to forfeit to His Majesty the King-Emperor of India, the sum of Rs. Dated this ______________ day of ______________ 19. (Signature) I hereby declare myself (or we jointly and severally declare ourselves and each of us) surety (or sureties) for the said (name) that he shall attend at the Court of_____________ on every day of the preliminary enquiry into the offence charged against him, and should the case be sent for trial by the Court of Session, that he shall be, and appear, before the said Court to answer the charge against him and in case of his making default therein, I (or we) bind myself (or ourselves) to forfeit to (His Majesty) the King-Emperor of India, the sum of Rs. Dated this _____________ day of _______ 19. (Signature) ...................................... ...................................... This frame of form reveals that the same was made before the implementation of Law Reforms Ordinance. The Deputy Registrar (Rules) who was asked to search for the amendment in the said Pro forma has informed that the said Performa is still holding the field. He has been directed to put up the matter before the concerned Committee of the High Court for appropriate amendments in the Pro forma. Be that as it may, the bare perusal of the said Pro forma also reveals that the surety is duty bound to produce the accused before the Court on each and every date of hearing. On the other hand, the surety bonds filed by the petitioners before the bail granting Court reads as under:- Urdu 615 In the light of the said wordings of the surety bond the arguments of the learned counsel that the petitioners were responsible for the production of the accused only for the specific date mentioned therein C has no force because the said interpretation is not only contrary to the intention of the legislatures but the same is also in conflict with the spirit of law as observed earlier.

5. The detailed orders have been passed by learned Additional Sessions Judge, Lahore in this case showing the application of mind to all the relevant factors involved therein. The reasons, advanced by the learned Additional Sessions Judge, Lahore for passing the impugned D order are not adverse to the settled principles governing the exercise of jurisdiction under section

514. Cr.P.C. The learned Additional Sessions Judge being not satisfied by the explanations given by the petitioners for producing the accused before the Court on the specified dates has passed the detailed orders. Before parting with the case I would like to observe that while passing the bail granting order the Courts should specifically mention about the liability of the surety. The Courts accepting the bail bonds also should not accept the same mechanically without examining the entries made therein. They should ensure that these bonds clearly specify the dates, including extended dates for interim bails or proceedings for which the surety be made liable for the production of the accused before the Court. For the reasons stated above, finding no force in these petitions, the same stand dismissed. H.B.T./M-1092/L Petition dismissed. ***