AMIR SARDAR vs THE STATE

ORDER

' Applicant Amir Sardar who is facing trial in Crime No, 446 of 1986, Police Station Orangi Town, under sections 436, 302, 307/149, P.P.C., read with section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Sessions Case No, 551 of 1988) and Crime No, 448 of 1986, Police Station Orangi Town, under sections 436, 302, 307/149, P.P.C. Read with section 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (Sessions Case No, 140 of 1988), was on bail granted by the trial Court. He remained absent and was consequently remanded to custody on 18-91989 in both the cases. He filed separate bail applications which were allowed by learned IInd Additional Sessions Judge (West), Karachi, but he was directed to furnish cash surety in the sum of Rs,50,000 in each case. By these applications the applicant has approached this Court for modification of the order regarding the furnishing of cash security, I propose to dispose of both the applications by a consolidated order.

2. I have heard Mr. Gulzaman Khan, learned counsel for applicant and Mr. Shaukat H. Zubedi, learned AA.-G. For State. The latter has raised no objection to the modification of the orders as prayed.

3. An order demanding cash surety for bail is illegal as there is no provision in the Code of Criminal Procedure, 1898, to support such order. It is open to the Court to accept cash security to such an extent as it may think fit if such security is offered by the accused under section 513, Cr.P.C., but the Court cannot insist on the cash security. Section 499, Cr.P.C. Again contemplates the execution of a bond with surety and not a cash deposit. The cases reported as Rajballam Singh v. King-Emperor 1948 Cr. L J 773 and R.R. Chari v. Emperor AIR 1948 All. 238 are relevant authorities on this point. In the latter citation it was observed that the language of section 499, Cr.P.C. Makes it perfectly clear that what that section contemplates is the furnishing of a personal bond by the accused person and a bond by one or more sufficient sureties. The accused as well as the surety have, therefore, to execute only bonds which are sufficient. This section, however, does not authorise the demand of cash in lieu of bond by a Court. This question was also examined in LAM Narayan Kundu v. The Crown, reported in PLD 1955 Dacca 84, and it was held:-- "With regard to the question as to whether a Magistrate is competent to insist on the deposit of cash security instead of requiring the execution of a bond, we agree with the decisions in cases of Rajballam Singh v. King Emperor, Abdul Gani and others v. Emperor 48 Cr. L J 773 and R.R. Chari v.

Emperor 49 Cr. L J 282, that the section contemplates the execution of a bond with sureties and not a cash deposit."

4. This view was followed in the case of Muhammad Yusuf v. The State 1986 MLD 2632 wherein the order regarding the furnishing of bank guarantee was held to be illegal. The unreported order in Criminal Miscellaneous Application No, 128 of 1975 also lays down this proposition in the following words:-- "Heard Mr. Gulzaman Khan, on behalf of the accused/applicants. The accused in this case have been sent up for offences which are bailable except the offence under section 325, P.P.C. The learned 1st Additional Sessions Judge, Karachi has granted bail but demanded cash security of Rs,1,000 from the accused. As pointed out by the learned counsel for the applicant the demanding of cash security is not warranted by law as held in 48 Cr. L J 773 and PLD 1955 Dacca 84.

' The accused/applicants are accordingly permitted to furnish P.R. Bond with two sureties each in the sum of Rs,1,000 to the satisfaction of A.C.M. IVth, Karachi."

5. In view of the above authorities the orders of the learned Additional Sessions Judge, dated 3-10- 1989 are modified to the extent that the applicant shall be released on bail subject to his furnishing bail bond in the sum of Rs,50,000 in each of the cases to the satisfaction of IInd Additional Sessions Judge (West), Karachi. Both the applications are disposed of in the above terms.