GHULAM QADIR SIYAL Versus THE STATE

1. This is an application for Constitutional Criminal Revision challenging the order of the Additional Sessions Judge, Gumbat, dated 22-6-1994 whereby the petitioner was ordered to deposit the amount of Rs.35,000 being the amount of surety bond.

2. The facts of the case, briefly stated, are that the petitioner namely Ghulam Qadir stood surety for one Illamuddin who was, alongwith 7 others, accused of abducting Mst. Noor Jahan and was facing trial before the Court of learned Sessions Judge, Khairpur. The accused Illamuddin remained absent, N.B.Ws. were issued to the accused and notice to the surety/petitioner. On 25-5-1993 the petitioner produced a medical certificate Annexure "E" to the Court of the learned Sessions Judge, Khairpur to prove that the absence of the accused Illamuddin at the earlier date, was due to his ailment. He also stated verbally before the Court that Illamuddin was still ill and could not attend the Court at that date also. The learned Sessions Judge did not take it as a sufficient ground for the absence of the accused and forfeited his bail bond. The case was thereafter transferred to the Court of Additional Sessions Judge, Gumbat where the accused remained absent again. The learned Additional Sessions Judge issued N.B.Ws. against the accused and the notice to his surety/petitioner. N.B.W. against the accused could not be served on 19-8-1993 and he was declared absconder and order under section 512, Cr.P.C. was passed and proceedings under sections 87 and 88, Cr.P.C. were initiated against him.

3. On 5-12-1993 the surety /petitioner appeared before the Court and he was granted time for production of the accused. On a number of subsequent dates he remained absent from the Court, however, each time he submitted application and his absence was excused by the Court. On 2-3-1993 he remained absent from the Court without any intimation and B.Ws. were issued against him. On 9-4-1994, 16-4-1994 and 2-5-1994 the Court was pleased to grant time to the surety for the production of the accused. On 25-5-1994 the surety/petitioner produced the accused Illamuddin before the Court who was remanded to custody.

4. On 22-6-1994 the learned Additional Sessions Judge, Gumbat after hearing the surety in person who prayed leniency in the matter, issued an order directing the surety to deposit the amount of Rs.35,000. The petitioner has directed this petition for revision against this order of Additional Sessions Judge, Gumbat.

5. I have heard the learned counsel for the petitioner as well as the learned A.A.-G. who appeared for the State. The learned counsel for the petitioner contended that the petitioner had always been trying to produce the accused in the Court. His absence was not mala fide and as soon as he was able to find out the accused, he actually produced him in Court. He has also produced the certified copy of the judgment of the Additional Sessions Judge, Gumbat, dated 12-6-1995 which shows that the original accused Illamuddin has been acquitted of all charges against him in this case. However, the present petitioner who had actually produced the accused has been ordered to pay the huge amount of Rs.35,000 while in the circumstances of the case he must have been treated more leniently.

6. Learned counsel for the petitioner also raised a legal question submitting that the earlier surety bonds were taken by the Sessions Court, Khairpur and after the transfer of the case to the Additional Sessions Judge, Gumbat, they were no more effective. It was the Sessions Court of Khairpur with which the surety had entered into a covenant to produce the accused, and not the Court of the Additional Sessions Judge, Gumbat; therefore, the latter Court had no power to penalize him on the basis of the earlier bond. The learned counsel relied on the case of Ali Jan reported in 1990 MLD 2076 where the surety/petitioner had executed a bond for production of the accused in the Court of 1st Additional Sessions Judge. The case was subsequently transferred to the IInd Additional Sessions Judge where the accused remained absent and the surety was penalized to pay the surety amount. The said order passed by the IInd Additional Sessions Judge was held to be illegal on the ground that the bond was not executed by the surety before the IInd Additional Sessions Judge, therefore the order of penalizing has been set aside. The learned counsel for the petitioner has also referred to a recent unreported case of Sindh High Court, dated 25-5-1995 (Ghullan alias Gul Muhammad v. The State) where by the learned Single Judge relying on 1990. MLD 2076 has allowed a similar application of revision on the very ground that the case was transferred to another Court.

7. After hearing the learned counsel for the petitioner and learned Additional Advocate-General on this point I have come to the conclusion that even without giving a definite opinion about the view taken in the case of Ali Jan v. The State 1990 MLD 2076, the petitioner has a strong case either way, because if we take the position that the bond executed by the Sessions Judge, Khairpur was not applicable to the trial conducted by the Additional Sessions Judge, the illegality of the impugned order is obvious on the basis of the authorities cited by the learned counsel for the petitioner; but even if we do not endorse this view and hold that the proceedings of the learned Additional Sessions Judge, Gumbat were in continuance of the proceedings taken by the Sessions Judge, Khairpur, the fact is that the Additional Sessions Judge has repeatedly excused the absence of the surety/petitioner and has given him time to produce the accused on a number of occasions. These orders of the Additional Judge which allowed time for the production of the accused tacitly implied the suspension of the order of the forfeiture of the surety bond, because a person cannot be held liable at one time for both producing the accused and paying the amount of security. So far as he was made liable for the production of the accused and was granted time for that purpose, he no longer remained liable to pay the surety amount, until the time allowed for him was over and he failed to produce the accused within that time. It is admitted that soon after this order, Le, within one month or so, the surety has actually produced the accused before the Court, who was taken into custody and was acquitted thereafter. The sequence of these facts shows that the petitioner had acted in compliance with the orders of the Court which allowed him time for the production of the accused, therefore, he was not liable to pay the surety amount after he had, actually produced the accused in the Court.

8. In the light of the above discussion this petition is allowed and the impugned order of the learned Additional Sessions Judge, Gumbat, dated 22-6-1994 is set aside and the petitioner is relieved of the liability to pay the amount of Rs.35,000.

9. N.H.Q./1078/FSC Revision petition received.