' DR. FIDA MUHAMMAD KHAN, J.---This revision petition jointly filed by Imdad Hussain and Rana Iftikhar Hussain, under Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973, assails the order dated 24-2-2011 passed by learned Additional Sessions Judge, Lahore whereby an amount of Rs,100,000 had been deposited by petitioner No,2 Rana Iftikhar Hussain who is maternal nephew( bhanja) of petitioner No,1 Imdad Hussain.
2. Facts of the case, briefly stated are that petitioner No,1 had stood surety to accused Jehangir who while facing trial under sections 10/11/13/14 of Offence of Zina (Enforcement of Hudood) VII of 1979, slipped away from the Court on 23-9-2010 during the pronouncement of Judgment by the learned Additional Sessions Judge, Lahore. Thereafter the SHO was directed to arrest the accused but in spite of repeated adjournments made by the Court he failed to arrest him and then ultimately non-bailable warrant of the accused was issued repeatedly and ultimately, the salary of CCPO was attached vide order dated 17-1-2011 and thereafter the accused Jehangir was declared as proclaimed offender and a notice to the surety was also issued vide order dated 4-2-2011 and the case was fixed for 17-2-2011. Since a notice was issued to the SHO for 24-2-2011, the local police apprehended the maternal nephew of the surety i,e, Rana Iftikhar Hussain and other family members to pressurize them as Imdad Hussain surety, was not in his house. He allegedly forced his nephew, petitioner No,2, to pay the amount of Rs,100,000/- in the Court otherwise they would not be released. The petitioner No,2, as alleged, had no other option except to deposit the amount of Rs,100,000/-. Thereafter the SHO presented petitioner No,2 and maneouvered his statement. On 22- 2-2011, the petitioner No,1 submitted an application for the withdrawal of non-bailable warrant issued against "him. The application was fixed for hearing on 24-2-2011 along with report of Ahlmad but the learned trial court did not make any order on the said application and instead directed the petitioner No,2 that the surety amount must be deposited in the Court and accordingly he complied with the order.
3. Vide this revision petition the petitioners have prayed to set aside the impugned order passed on 24-2-2011 and to return the surety bond in favour of petitioner No,2 and to exonerate petitioner No,1 from the charges.
4. I have heard learned counsel for the parties and have perused the record with their assistance.
Learned counsel for the, petitioners submitted that:- ' the petitioner No,2 was not bound at all to deposit the amount of Rs,1,00,000/- which has been paid by him only to save his skin and his other family members, who were detained by the SHO concerned illegally and unlawfully and had forced them to deposit the same, therefore, the said amount was deposited under threat; ' while producing petitioner No,2 in the court, both the petitioners agitated the matter regarding the deposit of amount, whereas, an application for the withdrawal of non-bailable warrant of arrest of petitioner No,1 was also filed on 22-2,-2011 two days before said date but the learned Additional Sessions Judge did not pass any order on the same and instead directed petitioner No,2 without any lawful authority and legal justification to deposit the amount. He contended that by not proceeding further on the application of petitioner No,1, an illegality had been committed and it amounts to condemning both the petitioners unheard and the impugned Order is, therefore, void and unwarranted by law and the same may kindly be set aside. ' the petitioner No,1 while submitting application, also provided the settled principle of law that if an accused slips away from the court premises, the surety is not bound to pay the surety amount. He further submitted that the amount deposited by the maternal nephew of petitioner No,1 was not deposited on the instruction of petitioner No,1- but he was forced by the police to deposit the same and this highhandedness of the police was completely illegal; ' Mille passing the impugned Order; the learned Additional Sessions Judge, Lahore did not apply his judicious mind; ' the impugned Order has been passed in very hasty manner; and that the petitioners have been condemned unheard.
' Learned counsel has relied upon 1982 PCr.LJ 623-Lahore, Shafiq Ahmed and others v. The State, PLD 1996 Lahore 600, Shatab Khan and another v. The State, PLD 1996 Lahore 602, Lahore Stock Exchange Ltd. v. Asmat Ullah Sheikh, 1999 PCr.LJ 2102 Lahore, Farman Ali v. The State and 1997 PCr.LJ 554 FSC, Ghulam Qadi'r Siyal v. The State ' The learned District Deputy Prosecutor General for the State supported the impugned order.
5. I have considered the arguments of the learned counsel for the petitioners and feel persuaded to agree with him. According to law, the surety bond is made by the conditions of the bond which, inter alia, includes the condition that the surety shall produce the accused on every date of hearing whenever the case is fixed and the notice is duly received. In the instant case, as is established on record, the petitioner No,1 faithfully discharged his obligation by producing the accused Jehangir on 23-9-2010 when the learned Additional Sessions Judge was announcing the judgment. It transpires from the last para of the said judgment, that at the time of announcement of judgment, the accused slipped away from the Court. It means that so far as the duty of the surety is concerned, he had fulfilled his obligation. The lapse if any, was committed by the representatives of the law-enforcing agencies who were present in the Court. It was their responsibility to show vigilance and keep the accused under close watch. The surety was definitely liable to produce the accused Jehangir but 'once he produced him in the Court. His obligation- for that particular day was fulfilled and he was discharged of his duty. Moreover a glaring discrepancy which apparently floats on the surface is that actually Imdad Hussain petitioner (no.1) had stood surety for the accused Jehangir who was facing trial and who had then slipped away at the time of announcement of Judgment but it is strange that instead of Imdad Hussain, petitioner No,1, Rana Iftikhar Hussain, petitioner No,2, had to deposit the surety amount of Rs,100,000 in the NIB Civil Secretariat Branch, Lahore. This fact is very clear from the impugned order, passed on 24-2-2011, which reads as under:-- ' Rana Iftikhar Hussain maternal nephew/Bhanja of Imdad Hussain son of Nazar Hussain caste Rajput.R/o Mauza Kanakkar P/S Kahna. Tehsil Cantt. District Lahore has deposited surety amount of Rs,1,00,000/- in the NIB, Civil Secretariat Branch, Lahore in case of Jhangir accused of case F.I.R.
No,772/2005 under section 10/11/13/14/7/79 *Offence of Zina and has produced the receipt of the same which is placed on the file. The order of issuance of NBW of arrest is withdrawn. He is set at liberty. The instant application be attached with the main case."
' The statement of petitioner No,2 Rana Iftikhar Hussain recorded on the same day clearly appears to have been maneouvered under duress by the CCPO concerned whose . Salary had been attached vide order dated 17-1-2011. In this view of the matter the impugned order dated 24-2-2011 is erroneous in the eyes of law.
6. Consequently for the reasons stated above the impugned order which has entailed the forfeiture of the bond and direction to petitioner No,2, instead of petitioner No,1, to pay the full amount of Rs,100,000/- cannot be sustained.
7. So far as the petitioner No,1 Imdad Hussain is concerned he has obviously fulfilled his duty and the accused Jehangir who had slipped away from the Court on the date when the judgment was announced, is still at large and fugitive from law and has been declared a proclaimed offender. It is not humanly possible now for petitioner No,1 to ensure his production before the Court. Further emphasizing. In this respect is -the fact that even the State with all its powers and resources at its command has failed to apprehend him till date. Since petitioner No,1 Imdad Hussain' has already fulfilled his obligation to produce him on the said date, therefore forfeiture of the bond submitted by him under such circumstances shall be oppressive, hence uniust. Therefore the present Criminal Revision is allowed and the impugned order dated 24-2-2011 is hereby set aside and resultantly petitioner No,1 stands discharged of his bail bonds.
8. Resultantly the amount of Rs,100,000/- deposited by petitioner No,2 on behalf of petitioner No,1 may be released to him.
9. The petition is allowed in above terms .