Report of the learned Special Judge Central giving reasons for his failure to receive bail bonds as directed by order of this Court dated 6.2.2006 has been perused. His experience about sureties turning out to be fake, is elaborated with reference to the data of five tehsils subject to his jurisdiction, and is cited as reason for demanding cash security from sureties under Section 514 Cr.P.C. so that in case of default in appearance by the accused there is readily available movable security for realization of penalty under the forfeited bond.
2. The Court has perused Section 514 of the Cr.P.C. wherein non-availability of movable property for the purpose of attachment is to be followed by a warrant for imprisonment of the surety for realization of penalty. The latter consequence of imprisonment has consistently been a sufficient safeguard to make sureties of substance to be cooperative and vigilant about their bonds submitted to Court.
3. The object of taking bail bonds from sureties is to have persons other than the accused responsible for his appearance in the Court. For a bond by a surety to be effective it is prudent to establish the surety's worth as a person of substance and of means. Where such precaution is exercised the coercive process against the property and person of the surety provides effective deterrent to prevent default in appearance by an accused. In the ordinary course it is possible for an accused to find propertied persons to become his sureties, their properties being the stake to enforce compliance; it is however, difficult for any person to find sureties having ready cash available for furnishing as security. This is evident from judicial experience wherein bank guarantee is usually considered an appropriate security for decreed financial obligations. The demand for cash security for the reasons recounted by the learned Special Judge in his report places the penalty under a bail bond on higher pedestal than a decreed financial obligation. Such a demand works onerously on the accused to curtail his valuable right of liberty that is conferred by judicial process, apart from going beyond the terms of a judicial order by turning a bond into a deposit.
4. What is therefore necessary in the present context is for checks to be employed to improve the quality of scrutiny and verification of sureties to assess that they are bona fide and serious persons rather than bogus entities complained of by the learned Special Judge. There are a number of different legally competent agencies which maintain data in respect of the identity and means of persons/citizen. Their certification can be required by a Court for verification. Apart from the excise record of property tax in urban areas and of the Sub-Registrar regarding title deeds of immovable properties, the record certified by the halqa revenue officer (Tehsildar) about rural land can be used to identify suitable persons for sureties. Utility bills, bank statements, employment certificate etc. may also' be referred to assess the credentials of a proposed surety.
5. The upshot of the discussion is that judicial forums have a duty to promote and not encumber the fundamental right of liberty of citizen. Difficulty faced by the judicial administration to select, monitor or enforce the quality of sureties must not, to the mind of this Court, become a ground for adopting cash security as a means to assure the credit and credibility of a surety. Such recourse would impose an uncalled for substitution of terms of a judicial order and also nullify its effect to confer liberty on an accused. Such consequences can neither be intended nor be caused by a magisterial Court.
6. In the circumstances, the learned Special Judge (Central) Rawalpindi may exercise initiative to collect reliable information verify the quality of the sureties presented on behalf of the accused/petitioner for furnishing bail bonds directed by him Court in its order dated 6.2.2006. The reference made above to different agencies for purpose of verification and certification of the antecedents of sureties is meant to be indicative only and not of binding effect. The learned Special Judge may adopt such check and counter check measures as deemed fit but without making the process so elaborate or difficult that the right of liberty granted by and the enforcement of order of this Court is made onerous and doubtful.
7. It is therefore directed that the order of this Court dated 6.2.2006 shall be enforced in its terms and sureties shall be accepted by the learned Special Judge without demanding cash security after establishing through check and counter checks the credit and credibility of the sureties presented on behalf of the accused.
8. Before closing it is pointed out that the learned Special Judge may take into account the judgment by a learned Division Bench of the Sindh High Court in, the case of Ahmed versus The State (1999 YLR 2504) wherein the demand for security in cash for bail has been disapproved. C.M. stands disposed of.