KHADIM HUSSAIN Versus THE STATE

ORDER

1. MAQBOOL BAQAR, J.‑‑ ‑Mr. Gul Hassan Solangi is present in Court, he waives notice. He received the copy of application. We have heard Mr.Abdul Rehman Bhutto, learned counsel for applicant and Mr.Gul Hassan Solangi, learned counsel for the State.

2. The order in question been challenged on the ground that the Sessions Judge, Jacobabad while granting bail to applicant should not have asked for furnishing security.

3. It may be noted that on 12‑12‑2003 by way of the impugned order, the Sessions Judge had granted bail to the appellant in the sum of Rs. one lac on furnishing security in the said amount. Mr. Gul Hassan Solangi, learned State Counsel in view of the provisions of section 51 of C.N.S. Act supports the‑said order to the extent that it is a statutory requirement within the meaning of subsection (2) of the aforesaid section to furnish security when bail is granted. For convenience section 51 C. N. S. Act is reproduced hereinbelow:‑‑

4. "51. No bail to be granted in respect of certain offences.‑‑‑(1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.

(2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."

5. The term "security" employed in the aforesaid cited sub section (2) has not been defined in section 51 of the C.N.S. Act. The learned counsel for applicant referred to a D.B. order of this Court and another order passed by the trial Court and emphasized that surety papers worth the bail amount be accepted instead of seeking deposit of the said amount.

6. The question as to whether or not amount in cash, is essentially required to be deposited as security has not been examined in the aforesaid order directly. However, a Division Bench of this Court, of which one of us (Wahid Bux Brohi, J.) was a member, whilst dealing with precisely the point in question, in a bail matter (Criminal Bail Application. No. 114 of 1999) at Circuit Bench Hyderabad has passed an elaborate order in this regard. The Division Bench after discussing the expressions "Security" "Surety" and "Bail" as defined by the various jurists and as used in various judicial pronouncements of our apex Court and dilating upon the principles in respect of execution of bonds and furnishing security as enunciated by the various provisions of Criminal Procedure Code, observed as follows:‑‑

7. "12. On the other hand the expression `security' has also been used in several provisions of the Code itself i.e. section 76 as well as the entire Chapter VIII relating to security proceedings. It is pertinent to mention that though the Code empowers a Magistrate to demand security from various persons under the aforesaid Chapter the substantive provisions only enable him to require such persons to execute bonds for keeping peace, good behaviour etc. None of these provisions require a Magistrate to order deposit a sum of money in cash or other forms of negotiable instrument. We therefore, find it impossible to accede to the argument of the learned Additional A.‑G. that security for the purpose of bail must only mean cash.

13. Indeed for the purpose of determining that the surety is solvent enough to fulfil its obligations under the bond, Courts generally require some form of hypothecation of property by way of security for the purpose of the conditions of the bond. This power appears to stem from section 499, Cr.P.C. of the Code which required surety to be sufficient. Moreover, as is evident from the definition of the expression `surety' in the Dictionaries authored by Sardar Muhammad Iqbal Mokal and W.H. Somerset Bell cited by the learned A.A.‑G. means a surety furnishes security for the obligation of the principal. Nevertheless our superior Courts have consistently held that cash security, whether from the accused or surety can never be demanded as a condition for grant of bail and under section 513, Cr.P.C. a Court may permit a person required to execute a bond to deposit cash security in lieu thereof. If authority is needed one may refer to the judgments of the Lahore High Court in Muhammad yousuf v. The State (1968 MLD 2623) and of this Court Amir Sardar v. Tile State "1990 PCr.LJ 414). In the first case Muhammad Rafiq Tarar, J. (as his Lordship then was) held that a Court has no power to demand security Qaisar Ahmed Handi, found that an order demanding cash security was illegal as there was no provision in the Code to support such order.

14. The Control of Narcotic Substances Act, 1997, it may be observed, does not deviate from the principles of Criminal Procedure Code in respect of execution of bonds or furnishing security for granting bail in all the provisions of the Code have been made applicable explicitly to trials and appeals unless otherwise provided. Section 51 acknowledges the power of Court to grant bail subject to the condition that bail will not be granted to persons accused of offences punishable with death and in other cases it would be granted against the security of a substantial amount."

8. Is was held;

9. "We are therefore of the opinion that there is no provision in law requiring the accused/applicant to furnish cash security."

10. It has thus been laid down that the requirement of furnishing security, in terms of section 51(2) of the C.N.S Act does not contemplate that the bail amount be necessarily deposited in cash, bank guarantee etc., but the requirement of security can also be satisfied by furnishing the document creating title to a property worth the bail amount.

11. Mr. Gul Hassan Solangi, concedes that if the proposed surety furnishes title of landed property, the same can be accepted as security by the trial Court within the meaning of aforesaid section.

12. Learned counsel for applicant submits that he would not press the application in view of the above observations. Order accordingly. The application stands disposed of alongwith listed‑applications.

13. N.H.Q./K‑6/K Order accordingly.