ORDER SHEET
THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Appln. No.1549 of 2016
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Date Order with Signature(s) of Judge(s)
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For hearing of M.A. No.2086/2019.
30th April, 2019.
Mr. Ansar Mukhtar, Advocate for the Applicant/Surety.
Mr. Abrar Ali Khichi, Additional Prosecutor General, Sindh.
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Abdul Maalik Gaddi, J. Through subject application, the surety Manzooran wife of Muhammad Yamin has prayed for return of surety documents, already furnished by her in compliance of order dated 27.10.2016, whereby the accused Muhammad Yamin was granted interim pre-arrest bail by this Court in Crime No.545 of 2016 registered at police station Boat Basin, Karachi, under Sections 354/352/452/506/504/337-A(i) Q & D and Section 338-B, PPC, which was subsequently, confirmed by this Court on 20.03.2017.
2. Facts necessary for disposal of listed application are that accused Muhammad Yamin was granted interim pre-arrest bail by this Court vide order dated 27.10.2016, subject to his furnishing solvent surety in the sum of Rs.100,000/- with P.R. bond in the like amount. It appears from record that requisite surety was furnished by the surety namely, Manzooran wife of Muhammad Yamin by deposited Defence Savings Certificate and subsequently, the interim pre-arrest bail granted to the accused Muhammad Yamin was confirmed by this Court vide order dated 20.03.2017, with directions to the accused Muhammad Yamin to appear before the trial Court to face the trial. It also appears from the record that learned trial Court vide order dated 04.07.2017, stopped the proceedings of the case under Section 249, Cr.P.C. without pronouncing any judgment either of acquittal or conviction and the personal attendance of the accused Muhammad Yamin was dispensed with till further order after obtaining P.R. bond of Rs.50,000/- for his appearance before trial Court whenever required.
3. The main grievance of the surety is that since the proceedings against the accused Muhammad Yamin has already been stopped under Section 249, Cr.P.C. for indefinite period, therefore, the surety papers already submitted by her before the Nazir of this Court, may be ordered to return the same to her.
4. Learned Additional Prosecutor General, Sindh submits that though the proceedings of the case have been stopped, but according to him, the stoppage of proceedings do not tantamount to end of the proceedings, therefore, at this stage, the surety is not entitled for return of surety papers.
5. Heard the arguments and perused the record.
6. Admittedly, proceedings of the case against the accused pending before the trial Court was stopped under Section 249, Cr.P.C., therefore, it would be advantageous to reproduce Section 249, Cr.P.C., which reads as under:-
"249. Power to stop proceedings when no complainant.‑‑ In any case instituted otherwise than upon complaint a Magistrate of the first class, or with the previous sanction of the District Magistrate, any other Magistrate, may for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment either of acquittal or conviction and may thereupon release the accused."
7. It would be noticed that as provided in the above section the accused has got to be released following the stoppage of the proceedings. The word "release" used in the above section cannot be confused with "release" from custody. Because the accused may not be in jail at the time of passing the order under the above section. In the instant case when the proceedings against the accused were stopped, he was on bail. Therefore, the question of his release from custody in consequence of the order under section 249, Cr.P.C. did not arise. Release in such a case can only be construed to mean release from the liability for attending the Court. Consequent upon stoppage of the proceedings, the case comes to an. end for an indefinite period. The accused is, therefore, no longer required to attend the Court, in any, case not until availability of the evidence justifying the revival of the case against him. Supposing no such evidence is forthcoming for all time to come the case would remain stopped permanently.
8. It seems section 249, Cr.P.C. is in the nature of section 253 which was deleted in the wake of law reforms. The defunct section empowered the Court to "discharge" the accused at any stage of the case prior to framing of charge against him. However, the accused's discharge under the said section did not operate as permanent closure of the case against him. Subsequent to his discharge if sufficient evidence became available, the case could be revived against him. Similarly the stoppage of the proceedings under section 249, Cr.P.C. has the effect of discharging the accused until such time when on availability of the requisite evidence the case could be revived against him. I am, therefore, not inclined to endorse the view taken by the learned Additional Prosecutor General, Sindh. The stoppage of the proceedings amounts to termination of the case for the time being. Since the accused is not required to attend the Court as he stands released from such liability, the liability of his surety which extends to accused's regular attendance in the Court also comes to an end. By no stretch of imagination the surety can be held to continue as surety for the accused for an indefinite period which, as pointed out above, may never be ended. In such a case it would be absurd to withhold the return of the documents deposited by the surety.
9. For what has been discussed above, the surety has made out a case for return of surety furnished by her, as such, the listed application being M.A. No.2086 of 2019 is allowed. Office is directed to return the surety documents to the surety, after proper identification and verification as per rule. Office is directed to send copy of this order to the trial Court for information.
JUDGE
Faizan/PA*