KHAN BAFIADUR vs THE STATE
This criminal revision petition challenges an order of the IInd Additional Sessions Judge, Karachi West, which forfeited the petitioner's surety bond and imposed a penalty after the accused failed to appear in court. The petitioner had stood surety for his son in a case under the Prohibition (Enforcement of Hadd) Order, 1979, specifically for the Court of the Additional City Magistrate. Following the transfer of the case to the IInd Additional Sessions Judge, the accused failed to appear, leading to the forfeiture of the bond. The core legal question was whether a surety bond executed for a specific court remains valid and enforceable upon the transfer of the case to another court without a fresh bond being furnished. The Federal Shariat Court held that a surety bond is a contract of a civil nature and must be construed strictly. Since the bond was expressly limited to the Additional City Magistrate's court, it stood exhausted upon the case's transfer. Consequently, the Court set aside the forfeiture order and directed the refund of the deposited amount, establishing that surety obligations do not automatically extend to successor courts without express provision.
- Does a surety bond executed for a specific court remain valid after the case is transferred to another court?
- Should a surety bond be construed strictly as a contract of a civil nature?
- Is a surety liable for the absence of an accused in a court other than the one specified in the bail bond?
- Prohibition (Enforcement of Hadd) Order, 1979
GUL MUHAMMAD KHAN, C.J.--- The Petitioner stood surety for bail of his son Khan Muhammad alias Khano, in respect of a case under Article -- of the Prohibition (Enforcement of Hadd) Order, 1979, for being found in possession of 16 grams of heroin. The bail bond of the present petitioner was allowed by the Additional City Magistrate, on the 5 of May, 1987 and Khan Muhammad was released.
2. It is contended by the learned counsel for the petitioner that the accused had been attending the Court of Additional City Magistrate No.VII till 18th of June, 1987 when the case was transferred to the IInd Additional Sessions Judge. Thereafter, he had no notice and so did not appear before the other Court on the first and other dates of hearing with the result that the surety bond of the petitioner was forfeited.
3. The petitioner was then apprehended and brought before the Court on the 12th of September, 1989. On the same date the Court directed that the petitioner be sent to Civil Jail for a period of two months. An application was immediately thereafter, moved on which the Court allowed the petitioner to deposit Rs.2,000 and the remaining amount within 15 days. It is this order which is being challenged through this petition.
4. It, is contended by the learned counsel that as surety bond filed by the petitioner specifically provided that the petitioner shall be responsible for the presence of the accused in the Court of Additional City Magistrate, no penalty for his absence in the Court of the IInd Additional Sessions Judge, Karachi West, was attracted and consequently, the impugned order is bad in law.
5. The learned Assistant Advocate-General, concedes the proposition and states that as the mistake was made by the Additional City Magistrate, who did not ask the accused or the petitionerth to furnish a fresh bond and as he did not take the accused into custody in case of their failure to do the needful, the petitioner should not suffer for the same.
6. It is a settled proposition of law that surety bond is a contract of civil nature and the Court shall construe the conditions strictly. The original bond was meant for the Court of Additional City Magistrate only and in case it was to be available for any other Court also the same ought to have been expressly provided. The learned counsel for the State urges that there is also the normal practice here.
7. Consequently, the bail bond of the petitioner stood exhausted on the transfer of the case and so we allow this application, set aside the impugned order and direct that the amount of Rs.2,000 already paid by the petitioner in ,Court shall be refunded to him.
N.H.Q./724/F.S.C,
Cited by 3 cases
- WAHID ULLAH vs THE STATE 2007 YLR 1968
- MUHAMMAD TUFAIL and 2 otherss vs THE STATE 2003 P Cr. L J 1200
- NAWAZO vs THE STATE 2003 YLR 1906