ILAMDIN KHATTAK Versus THE STATE
This application under section 561-A, Cr.P.C. is moved on behalf of applicant Ilamdin Khattak seeking quashment of the order, dated -10-2-1992 passed by the learned Sessions Judge, Karachi East, whereby he directed his office to lodge a report with the concerned police station against the applicant, for having identified a fake person/surety as well as the fake person.
2. The facts leading to the filing of this application are that the applicant is a practising Advocate of Karachi, having 11 years standing at the Bar and is also enrolled as an Advocate of the Court. In his professional capacity, the applicant was engaged to defend one Ghulam Sarwar son of Syed Kabir who was facing trial before the learned Sessions Judge, Karachi East, for an offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 which pertained to F.I.R. No.103 of 1990 registered at Police Station Al-Falah, C.I.A., Karachi.
3. On behalf of accused Ghulam Sarwar, a bail application was moved before the trial Court and the same granted vide order, dated 7-4-1991. The accused was ordered to be released on furnishing one surety in the sum of Rs.25,00,000. Thereafter, on behalf of the accused, one Manzoor Alam Khan stood surety for the accused and furnished documents in respect of his property. The learned Sessions Judge vide order, dated 30-4-1991, provisionally accepted the surety subject to verification of the documents. The documents of the surety were thereafter sent for verification to the office of Sub-Registrar concerned who submitted his report that the surety Manzoor Alam Khan who was a fake person and that his National Identity Card which was mentioned in his affidavit was never issued to him. In fact it was issued in the name of Mst. Rukhsana. In the meanwhile, as the surety of the accused was provisionally accepted, he was released from custody but thereafter the accused decamped.
4. In the aforesaid circumstances, a show-cause notice was issued by the trial Court to the applicant to explain how he had identified a fake person. The applicant submitted a written explanation, dated 12-10-1992. It appears that the explanation given by the applicant was not accepted and thereafter the impugned order was passed by the trial Court. It is in these circumstances that the present application for quashment of the said order has been filed.
5. On behalf of the applicant Mr. Muhammad Ilyas Khan alongwith other Senior Advocates appeared but the main arguments were advanced by Mr. M. Ilyas Khan. Mr. Habibur Rasheed, Advocate appeared for the State, he did not support the impugned order. The learned counsel for the applicant submitted that the order passed by the learned Sessions Judge is based on no evidence and it virtually amounts to giving a direction to the police, to hold the applicant guilty of the offence of assisting the surety in committing the offence of impersonation, cheating and fraud. It was further argued that an Advocate appearing on behalf of the accused is not excepted to know each and every surety personally and had it been so, in that event a large number of accused could never be released. He further submitted, it is for this reason that every person has a National Identity Card with separate number and if any person is called upon to identify himself, such a person would obviously rely on his National Identity Card. Similarly, when any person stands as surety for the accused, such a person swears as affidavit before the trial Court and the Advocate appearing for the accused identifies such a surety on the basis of his National identity Card and so also the surety documents thus submitted. It was therefore, argued that in case if any person having stood surety for the accused, subsequently turns out to be a fake person, in that event an Advocate cannot be penalised. Conversely, it was further argued, how the trial Court accepted the surety in this case, it was pointed out the trial Court also relied on the affidavit, N.I.C. and the title documents of the surety and accepted the same provisionally, likewise the Advocate also identifies on the basis of the aforc5aid documents. In the present case, it was further pointed out, that the applicant had given his explanation to show cause in which also it was clearly mentioned that the said surety was identified by the applicant after seeing his National Identity Card, as well as the original documents and that the applicant had not identified the surety personally. It was next argued that the impugned order, if allowed to hold the field it would not only seriously prejudice the applicant but the same will also directly affect the legal profession all over the country. It was finally argued that the proper course for the learned trial Judge was to take action under section 501, Cr.P.C. and if an Advocate has mis-conducted himself, then the proper forum for taking any action against such an Advocate is the Sindh Bar Council, as such, the impugned order tantamounts to an abuse of the process of the Court.
6. After carefully considering the points raised by the learned counsel and so also the facts and circumstances of the case, I am of the view that the arguments advanced by the learned counsel has a lot of force. In order to appreciate the important points raised in this cash, it will be beneficial to refer to the procedure regarding submission of sureties on behalf of the accused. 1n the first instance, the surety swears an affidavit in which he states on oath that he is the owner of a particular property, title deeds of which are in his name, same are also attached with the said affidavit wherein he also mentions the market value of the said property. Alongwith the said affidavit, the photo copy of his National identity Card is also attached. These documents are submitted by an Advocate who identifies the surety under his signature on the very affidavit form. The said affidavit is also got attested through a Commissioner for taking affidavits. The same is then submitted in the concerned Court. The learned trial Judge/Presiding officer calls the surety in person and some necessary questions are then put to the surety. This is done only with a view to, ascertain the solvency of the surety. The Court also goes through the relevant documents specially the N.I.C. which also bears the photograph of the concerned surety. At this stage, one of the two options is adopted by the Court, that is, before accepting the surety, the Court invariably sends the surety documents to the concerned department/authority for verification and after the same is verified, the surety again appears in the Court and thereafter if the concerned Court finds every thing in order, it accepts the surety. The other course accepted by the concerned Court is that the surety is provisionally accepted while the surety documents are sent for verification to the concerned department/authority which means the surety which was provisionally accepted was subject to verification of the documents, and, if the report of the document indicates some foul play, in that event the surety which was provisionally accepted could be cancelled. It may be noted that once the surety is accepted, even if it is provisionally accepted, the release writ of the accused is always issued by the concerned Court. This. release writ is addressed to the authority with whom the accused is kept in confinement, authorising him to release the accused. This release writ is issued only after the bond of the surety is executed.
7. I may also refer to section 501 of the Criminal Procedure Code which authorises the Court to call upon the accused to find sufficient surety if through mistake, fraud or otherwise, sufficient sureties have been accepted, or if they afterwards become insufficient. The Court is even empowered to issue a warrant for the arrest of the accused. It will thus appear that so far as the acceptance of the surety is concerned, it is for the Court to determine the solvency of the surety. The role of an Advocate in submitting the surety documents is very limited. The Advocate concerned identifies the surety but, this certainly does not mean that an undertaking has been given by the said Advocate, to the effect that he will be personally liable in case the surety documents or the surety turns out to be a fake person. It must be remembered that the surety who has a N.I. Card, and has also produced title documents in his name, presumption will arise that the said documents are genuine, and, it is on the basis of such presumption that official documents such as National Identity Card and title documents must have been thought to be officially issued on the basis of which the Advocate concerned identifies the surety. It is to be noted that it is very seldom a surety is personally known to an Advocate. In case the surety is personally known to an Advocate, such an Advocate identifies the surety on personal basis also. In all other cases where there the surety is not known to an Advocate, such a surety is identified on the basis of his National Identity Card and the title documents. Had it been the requirement of law that only such a surety is to be accepted who is personally known to the Advocate concerned, in that event a large number of accused persons, though ordered to be released on bail, would rot in jail for, the reasons that the surety is not personally known to his Advocate. At the same time, such a requirement would also make the very order granting bail to accused redundant. It, therefore, follows, that if an Advocate has honestly identified the surety on the basis of National Identity Card and other relevant documents, such an Advocate cannot be said to have mis-conducted himself so as to make him liable criminally in the absence of any other evidence to that effect.
8. In the present case the issuance of show-cause notice to the applicant was proper as the Court was justified in calling upon the applicant to explain how he had identified the person concerned. The applicant submitted his explanation to the show cause and had specifically mentioned that he had identified the surety on the basis of his National Identity Card and that he had not identified the said surety personally. The explanation thus given should have been sufficient to relieve the applicant, but instead the learned Sessions Judge appears to have presumed connivance of the applicant with the surety in the submission of the surety documents. The impugned order in this regard is devoid of any reasons. If for the sake of arguments, the learned Sessions Judge was of the view that the applicant in some way had mis-conducted himself, in that event the proper forum for taking any action against tile applicant was the Sindh Bar Council. The applicant had identified the surety in the discharge of his professional duty as an Advocate, therefore, an Advocate cannot be branded as a common criminal while acting in the discharge of his professional duties unless, for reasons to be recorded, it can be shown that the said Advocate has prima facie committed that offence. Taking into consideration all these circumstances, I am of the considered view that the impugned order passed against the applicant is not sustainable as the said order appears to have been passed without application of mind and as such is an abuse of the process of the Court.
In the light of my above discussion, the impugned order to the extent of the applicant is an abuse of the process of the Court, as such, allow this application, and quash the same. This application stands disposed of.
N.H.Q./I-241/K ??????????
Order quashed.