ABDUL HAKEEM Versus THE STATE

1. This Criminal Revision under section 435/439, Cr.P.C. has been filed by Abdul Hakeem to challenge the order, dated 20‑3‑1984 of 1 st Additional Sessions Judge, Sukkur whereby the Deputy Commissioner has been directed to recover the amount of bond as Land Revenue.

2. The case against accused Nazir and Umar alias Agho under section 452/147/148/594, P.P.C. read with section 11/16 of Zina (Enforcement of Hudood) Ordinance, 1979 is pending for trial. Applicant stood surety for above accused and furnished bail bond in the sum of Rs.10,000 for each accused. Accused remained absent from the Court on 30‑3‑1983 and notice was issued to them. They were also subsequently called absent on 18‑4‑1983, 2‑5‑1983 and 25‑3‑1983 when non‑bailable warrants were ordered against them by the learned Sessions Judge, Sukkur and finally he forfeited their bail bonds. The notice was issued to surety. In the meanwhile the case was transferred to Hudood Court. On 11‑6‑1983, the learned Judge of Hudood Court who cancelled their bait'' and forfeited their bonds. The notices were issued to surety. On 29‑2‑1984 applicant appeared in the Court of Additional Sessions Judge (Hudood) and requested for time. He failed to produce accused, therefore, the impugned order was passed on 20‑3‑1984.

3. Mr. Abdul Setter, Soomro, Advocate appearing for applicant contended that in pursuance of the notice the surety appeared and requested for time and finally on 1‑4‑1984 Agho alias Umar was produced. He has argued that applicant produced accused Wazir on 28‑3‑1984 but accused was not taken into custody by the Incharge Additional Sessions 3uage, Sukkur.

4. Mr. Gul Behar Korai appearing for the State supports the impugned order and submitted that some leniency be shown.

5. I have gone through the record. The notices to surety was ordered on 25‑5‑1983 when bail bonds of accused were forfeited. The notice were not served upon surety till 28‑1‑1984. Applicant appeared in pursuance of the notice of the Court. On 11‑2‑1984 he sought adjournment and on two other hearing, dated 29‑2‑1984 and 14‑3‑1984 he time was allowed to him to produce accused. On 20‑3‑1984 again applicant moved an application requesting therein for time to produce accused. The request was turned down and following orders were passed Incharge Additional Sessions Judge (Hudood), Sukkur.

6. "All the accused called absent. Surety Abdul Hakeem for accused Wazir and Umar is present and Mr. Abdul Setter Advocate on behalf of surety Abdul Hakeem is also in attendance. Advocate for surety presented an application before the then Additional Sessions Judge (Hudood Court), Sukkur Division on 14‑3‑1984 requesting therein for grant of time which was granted upto 20‑3‑1984. Neither the surety has procured the attendance of the accused persons nor he deposited the money of surety bond. As such it was ordered that he should deposit the money of surety bond but he failed. Let a letter be sent to the Deputy Commissioner, Sukkur for necessary directions that amount of surety bond be recovered from surety Abdul Hakeem as Land Revenue. The Court is lying vacant due to transfer of Presiding Judge. Also issue non‑bailable warrants against all the accused persons with direction that in order of non‑execution of N.B.Ws. the process‑server should attend the Court for his statement. Case put of to 18‑4‑1984."

7. From the perusal of the case diaries of 14‑3‑1984 and 20‑3‑1984 is clear that bail bonds of applicant were not forfeited by Incharge additional Sessions Judge (Hudood), Sukkur. On 20‑3‑1984 the recovery as ordered. The amount to be recovered has also not been mentioned the order. The learned link Judge did not care to look into the case diary of 14‑3‑1984, which reads as follows:

8. "14‑3‑1984.

9. Accused at large. Surety present. Application for adjournment Granted. Repeat N.B.W. against accused. Call for process‑server for statement put of to 20‑3‑1984."

10. The applicant was not directed to deposit the amount of bonds the above order.

11. The first of all bail bond is to be forfeited as contemplated by section 514, Cr.P.C, therefore subsequent orders are passed.

12. The record further shows that on 28‑3‑1984 surety voluntarily produced accused Wazir before Incharge Additional Sessions Judge; (Hudood), Sukkur without any assistance of police and such application was made in writing through Advocate but the learned Judge refused to take absconder/accused into custody and stated in his order that let the accused be apprehended by the police as accused could not be identified without police or identity card. The accused was allowed to go and could not be arrested uptil now. The order of the learned Judge is really very interesting. On one hand surety was directed to produce accused and on the other hand when accused was before the Court, he was not taken to custody. On 1‑4‑1984 the applicant produced other accused Umar. He was rightly remanded to custody by an other Incharge Additional Sessions Judge.

13. The upshot of the above discussion is that order passed on 20‑3‑1984 directing the Deputy Commissioner, Sukkur to recover amount of bail bond cannot be sustained and is set aside. The applicant produced both the accused in the Court within two months after he received the notice. He cannot be burdened with any liability. He is not liable to pay any fine. The Revision is allowed.

14. M.Y.H. Petition allowed.