WARD SHAMSUL HASAN vs THE STATE
This application was filed under Section 561-A of the Code of Criminal Procedure 1898, seeking the release of a surety amount deposited by the applicant following the withdrawal of the criminal case against the accused. The core legal question was whether a surety could be penalized or held liable for the forfeiture of a bail bond when the underlying criminal prosecution against the accused had been formally withdrawn by the state, particularly where no prior notice of the accused's abscondence had been served upon the surety. The court held that the surety could not be penalized in these circumstances. The ratio of the decision is that once the prosecution against the principal accused is withdrawn under Section 494 of the Code of Criminal Procedure 1898, the purpose of the bail bond is extinguished, rendering the forfeiture of the surety amount unjustified, especially where the procedural requirement of issuing notice to the surety regarding the accused's abscondence was not fulfilled. The court directed the Nazir to release the deposited surety amount to the applicant.
- Can a surety be penalized for the abscondence of an accused if the underlying criminal prosecution has been withdrawn by the state?
- Is a surety entitled to the return of a bail bond amount if the prosecution against the accused is withdrawn under Section 494 of the Code of Criminal Procedure 1898?
- Does the failure to issue notice to a surety regarding an accused's abscondence preclude the forfeiture of the surety bond?
- Section 561-A, Code of Criminal Procedure 1898
- Section 494, Code of Criminal Procedure 1898
- Section 494(A), Code of Criminal Procedure 1898
ORDER
1. ' SALMAN ANSARI, J.--- This application for release of surety under section 561-A Cr.P.C. And direction to the Nazir to return the surety amount to the applicant/ surety. Affidavit of this application has been accompanied by the Surety S. Sirajul Hasan Zahid by a statement dated 10th May, 2008 that Federal Government of Pakistan had informed the Chairman NAB that the Federal Government has decided to withdraw the above case and accordingly NAB Headquarters, Islamabad by their letter dated 6th May, 2008 has forwarded such letter to Regional NAB Sindh and the Special Prosecutor submitted the statement before the Special Judge (Central) Karachi in Cr.Case No,91 of 1996 for permission to withdraw from the prosecution as required under section 494 Cr.P.C. By order dated 10th May, 2008 was allowed " Prayer for withdrawal from the prosecution made in B the statement is allowed . Consequently the accused stands discharged under section 494(A) Cr. P. C . "
2. ' Learned counsel has argued that though by order dated 19-12-2007 the bail order had been recalled due to abscondence of Wajid Shamsul Hasan, but no notice has been sent to the Surety as was directed by the High Court, hence the Surety has not received any notice, therefore, could not be penalized and should be discharged accordingly.
3. ' Learned Standing Counsel has conceded to contentions raised by the learned counsel for the applicant/surety.
4. ' Under the circumstances, though the bail order was recalled by the High Court, notice was yet to be issued to the Surety and no penalty was imposed. In my opinion where the prosecution against the accused himself has been withdrawn, therefore, could not be penalized the surety. I, therefore, allow this application and direct the Nazir of this court to release the same of Rs,100,000 deposited by the surety S. Sirajul Hassan Zaidi, learned counsel points out that in fact the correct name of the surety is S. Sirajul Hassan Zahid. The Nazir to verify the correct name and do the needful.
5. Accordingly this C application is disposed of.