IN THE HIGH COURT OF SINDH AT KARACHI

Cr. Misc. Application No.37 of 2016

Abu Siddique…………….…………………………...……………...Applicant

Versus

The State………………...................…………………………...Respondent

Date of Hearing: 31.10.2017

Mr. Jamshed Iqbal, advocate for applicant

Ms. Seema Zaidi, DPG.

O R D E R

FAHIM AHMED SIDDIQUI, J: The subject matter of the instant application is the order dated 05-09-2015 passed by the learned Judicial Magistrate/Family Judge, Karachi South in Criminal Case No. 3928/2003, whereby dismissing the application of discharge/withdrawal of surety and the said order was subsequently affirmed by the learned Sessions Judge on 22-01-2016 while disposing of a criminal revision.

2. The facts of the case in a short compass are that the applicant is the surety for accused namely Muhammed Furqan in FIR No. 281/2013 under Section 489-F PPC of PS Arambagh, Karachi. The surety bond executed by the applicant for an amount of Rs. 450,000/- before the trial Court. On 07-01-2015, the applicant moved an application for his discharge/withdrawal as surety and on his application, the learned trial judge passed order as "Notice to accused". The accused appeared on the subsequent date of hearing and then he jumped the bail and was declared absconder by the trial Court and his aforesaid application for withdrawal/discharge of surety was declined.

3. Supporting the case of the applicant, Mr. Jamshed Iqbal, learned counsel for the applicant contends that both the learned Courts below failed to appreciate and conceive the legal position of the case while passing the impugned orders. According to him, the learned Courts below failed to consider the real facts and circumstances of the case while passing the impugned orders. According to him, there is no fault of applicant in the instant case as the accused was present in the court and the trial Court could not force the applicant to continue as surety after his moving application for discharge/withdrawal of surety document. He submits that when the accused was present in the Court, there was no need to give notice to him and the trial Court has to pass an order on the said application.

4. Heard also Ms. Seema Zaidi, learned DPG, she in her usual frankness submits that an appropriate order be passed from the end of this Court.

5. In the instant case, the applicant appeared before the trial Court on 27-03-2014 and has shown his eagerness to become the surety for absconding accused by filing an affidavit and his offer was duly accepted by the learned trial Court. On the same date, the applicant executed a Bond of Surety before the trial Court. After furnishing surety, the release of accused actually means the custody of accused is handed over to surety and he is bound to produce the applicant on each date of hearing. From the very language of surety bond ordinarily furnished, it is very much clear that the appearance of accused on each and every date of hearing is the result of such bond as the surety has given such assurance to the trial Court. Meaning thereby that the appearance of accused before trial Court, on each date of hearing, is actually production of the accused by surety.

6. Record reveals that on 07-01-2015, when the application for discharge/withdrawal of surety document was moved, the accused was not in attendance and the trial Court issued notice to accused. However, on the next date of hearing i.e. 27-01-2015, accused was present in the court but the trial Court on the same application of surety and on the oral request of accused again gave him 15 days’ time to arrange fresh surety. I am of the view that the appearance of the accused on 27-01-2015 is actually a production of accused by the surety and the applicant/surety offered to become surety in writing and he had already made a written request for discharge/withdrawal of surety documents; therefore, on that date either the trial Court would have to take the accused in custody and remand him to jail or if anytime was given then the same should be given under written 'no objection' or ‘consent’ on behalf of surety. In case of a written request of a surety for discharge of his bond and/or withdrawal of surety documents and if such a request is made in presence of accused or accused appeared on subsequent date of hearing then the trial Court may pass an appropriate order of allowing such application. In Section 502 CrPC, a procedure has been provided for discharge of sureties, which reads as under: -

“502. Discharge of sureties. (1) All or any sureties for the attendance and appearance of a person released on bail may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.

(2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the persons so released be brought before him.

(3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and if he fails to do so, may commit him to custody.”

From bare perusal of above provision of law, it is clear that there is no other option left with the trial court but to direct discharge of the bond so far as it relates to the applicant/surety and call upon the accused to furnish other sufficient surety and in case of his failure to do so, the accused be committed to custody. Similarly, in Chapter-IV, Part-G, Para-8 of Federal Capital and Sindh Courts Criminal Circulars, a guideline is given as under:

“A surety has an absolute right to be discharged at any time. On a surety applying for his discharge, the Court must issue a warrant for the arrest of the accused, and on his appearance under the warrant or otherwise the surety desiring discharge shall be discharged, and the accused shall be required to find fresh security and in default may be committed to custody.”

7. It is clear from the above guideline that as soon as an application for discharge is received, the trial Court has to issue warrant if the accused is not in attendance. The purpose of such warrant is to enable surety to get the help of police in the arrest of accused. However, if the accused is not arrested on issuance of such warrant then a notice may be given to the surety under Section 514 CrPC. On the contrary, if the accused is present in the Court then the trial Court has no other option but to direct the accused to furnish fresh surety on the same day or to take him in judicial custody for want of surety.

8. I am of the view that the procedure provided in the above guideline as well as under Section 502(3) CrPC was not followed by the learned Judicial Magistrate, which has caused trouble for the surety as well as for the trial Court as the trial of accused was hampered due to his abstention. In this respect, I would like to take reliance from a case of the Hon’ble Supreme Court reported as Nawazo v. The State; 2004 SCMR 563, wherein it was held as: -

“Unfortunately, the provisions of subsection (3) of section 502, CrPC, were not complied with as a result whereof the accused‑persons made their escape good because when the notice was issued to them, the case was adjourned and the apprehension which was expressed by the petitioner in the application proved to be correct and they made their escape good for which they were already preparing. Therefore, under these circumstances, we are of the opinion that after the submission of application, it was not the responsibility/duty of the petitioner to again produce the accused person before the Court for the disposal of the application. In such‑like cases decision is required to be taken expeditiously because if the time is allowed to accused, then they are bound to take undue benefit as it has happened in this case.”

9. Another aspect of the case requires consideration. The impugned order of learned Judicial Magistrate was passed on 05-09-2015 and on the same date a notice under Section 514 CrPC was served upon the applicant/surety. The learned trial Court did not bother to give sufficient time to the applicant/surety to reply the show cause given by the trial Court. It appears that everything was done in hasty manner when the trial court realised that the accused after seeking time have absconded away.

10. The upshot of the above discussion is that on account of the aforesaid reasons, the impugned orders passed by the two forums below are not sustainable, as such the same are set aside and the instant application is allowed.

11. Before parting, it is necessary to point out that I have noticed in this case that the bond executed by the surety, which is available in R & Ps, is also not in accordance with the requirements of Section 499 CrPC, while the bond is also poorly drafted. It is necessary that all the District and Sessions Judges should look into the matter and ensure that the bond executed by the accused and surety should be in accordance with the requirement of statutory provisions and/or prescribed formats of different judicial instruments should not be overlooked. The learned Registrar of this Court is directed to circulate this order, if approved by the Hon’ble Chief Justice.

The above are the reasons for my short order dated 31^st October 2017.

J U D G E