GHULAM NAB Versus THE STATE

Muhammad Nawaz son of Ilam Din, who was involved in case F.I.R. No. 104, dated 22‑7‑1994, registered at P.S. Qila Kalarwala, District Sialkot, applied for pre‑arrest bail to the learned Sessions Judge, Sialkot. This application came up for hearing before Ch. Zafar Hussain, learned Additional Sessions Judge, Sialkot, who vide ordei dated 10‑8‑1994 allowed interim pre ‑arrest bail to Muhammad Nawaz, The case was then adjourned to 17‑8‑1994, for which date notice was issued to the State. Accordingly Ghulam Nabi, the present petitioner furnished bail bond on behalf of Muhammad Nawaz for a sum of Rs.50,000 as directed by the learned Court. On 17‑8‑1994, the case was. adjourned to 28‑8‑1994 as the learned Presiding Officer had gone to Pasrur on tour. Finally the case was taken up on 4‑9‑1994, on which date the following order was passed as Muhammad Nawaz accused did not appear in the Court:‑‑

"In this view of the matter, the bail petition is dismissed for non piusetution. The bail bond is forfeited the surety be issued a notice under section 514. Cr.P.C. as to why the full amount of his bail bond ‑be not recovered from him as he has failed to comply with the conditions of the bail bond,

The present petitioner filed reply and took the plea that he had undertaken to produce the accused Muhammad Nawaz on 17‑8‑1994 and not beyond that and that this condition of the bail Uotid was fulfilled by him, therefore, bail bond could not be forfeited. However, on 13‑6‑1995, the learned Additional Sessions Judge rejected the plea of the petitioner/surety by observing as follows:‑‑

"It was the duty of the surety to product the accused on each and every date of hearing but he has failed to do so, hence the bail bond was rightly forfeited. As regards the quantum of penalty, it does not appear that the surety had gained any monetary benefit by submitting the ban bond. So I take a lenient view and direct that Rs.25,000 be recovered from the surety as penalty

The petitioner Ghularn Nabi, who stood surety before the learned Additional Sessions Judge, has filed the present revision petition. Learned counsel for the petitiune, has mainly relied upon the terms of the bail bond and submits that there was a specific contract between the petitioner and the Court for the production of accused Muhammad Nawaz who was granted prc‑arrest bail by the Court. He referred to the bail bond itself which states as follows:‑

2. Learned counsel for the petitioner also relied on Muhammad Shafi v. The State 1991 PCr.LJ 813.

3. The petitioner furnished the bail bond which was accepted by the learned Court. This bail bond specifically provided that the surety was bound to produce Muhammad Nawaz in the Court on the next date of hearing, i.e. 17‑8‑1994. On that date, admittedly, Muhammad Nawaz had appeared in Court as is evident from the Court proceedings of that date. Even on subsequent two dates, Muhammad Nawaz appeared in Court but the case was adjourned on both the occasions. According to the order of learned Additional Sessions Judge, dated 4‑9‑1994, the notice under section 514, Cr.P.C. was issued to the present petitioner, "as he had failed to comply with the conditions of the bail bond".

4. The petitioner had furnished bail bond in terms of sections 498 and 499, Cr.P.C. for the appearance of accused Muhammad Nawaz on 17‑8‑1994. It was clearly and specifically mentioned in the bail bond that if the accused failed to appear in Court on 17‑8‑1994, the surety i.e. the present petitioner, would be liable to pay to the Government of Pakistan a sum of Rs.50,000 as penalty.

5. It is established rule of Law that the penal clauses have to be strictly construed and followed. In the present case, the bail bonds furnished by Ghulam A Nabi, petitioner, were accepted by the learned Court although surety had undertaken to cause the appearance of the accused Muhammad Nawaz on 17‑8‑1994 only. No doubt, the order dated 10‑8‑1994 of the learned Court, granting interim bail to Muhammad Nawaz, provided that the latter would join the investigation and attend the Court on each and every date of hearing till the final disposal of the bail petition. However, the term of the order dated 10‑8‑1994 was not incorporated in the bail bond furnished by Ghulam Nabi, the petitioner.

6. In the light of the above discussion, in my opinion, the bail bond furnished by Ghulam Nabi, could not be forfeited as no terms of the bail bond were violated by the petitioner. Accordingly, the provisions of section 514, Cr.P.C. were not attracted in the present case. This Revision Petition is, therefore, accepted and the order impugned herein dated 13‑6‑1995, passed by the learned Additional Sessions Judge, Sialkot, is set aside.

N.H.Q./G‑312/L

Revision petition accepted.