1. The petitioner verified a bail bond in the sum of Rs. 5,000 executed by one Said Muhammad resident of Siakh, District Mirpur in a case against one Muhammad Fazil Shah under sections 409, 420, Penal Code and section 5(2) of the Prevention of Corruption Act. The accused having absented himself on the 7th of September 1970, the bond was forfeited and the surety called upon to pay the amount or show cause why it should not be paid. The process-server reported that the said surety had since permanently left Azad Kashmir and settled in Pakistan on account of being displaced by the construction of Mangla Dam. The Court then issued a notice to the petitioner to pay the amount of Rs. 5,000 or show cause why it should not be paid. Having rejected his pleas and proceeded to auction his movable property attached earlier, he has come to this Court in revision.
2. The verification that has landed the petitioner in trouble, is as follows:- "It is verified that the surety is a man of sufficient means and owns property of more than the amount of bond. In case it is found insufficient, I shall be responsible and in this manner, this amount shall be recoverable from my person and property."
3. Section 499, Cr. P. C. Which deals with the furnishing of bonds is reproduced below:- "(1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the Police Officer or Court, as the case may be, thinks sufficient, shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties, conditioned that such person shall attend at the time and place mentioned in the bond? and shall continue so to attend until otherwise directed by the Police Officer or Court, as the case may be . . . . . ".
4. The section speaks only of the sureties taking responsibility for the appearance of the accused in accordance with the terms of the said bond, to execute the same. The section does not, therefore, cover a person like the petitioner who obviously is not a surety within the meaning of this section.
5. The framers of the Code have in Schedule V provided two specimen bail bonds numbered III and XLII. As held in 21 All. 86:-- "The Schedule is as much a part of the Code as any other portion of it and is roost useful in throwing light on the meaning of those sections of the Code in connection with which the form prescribed by it are to be used."
6. A reference to these specimen forms will show that they do not provide for any verification at all.
7. High Courts have also framed rules under section 554, Cr. P. C. For regulating practice and proceeding:, in subordinate Criminal Courts. The High Courts are also empowered, under the same section to frame fortes. Here in Azad Kashmir the rules in force are those framed by the Maharaja's Government and published in the Gazette on the 10th of December 1931. These rules are almost identical with those in force in the Punjab. Part VII deals with `Bail and Recognizance---s'. A specimen bail bond form has also been included but neither in the rules so framed nor in the specimen form is there any mention of the requirement of the bail bond being verified by any one.
8. On the other hand it is stated in rule 7:- "Acceptance of bonds of accused and sureties. Considerable diversity of practice exists in tarrying out the provisions of the law in regard to the taking of roads from accused persons and their sureties, and the result of the diversity and irregularity is not only to cause Police Officers to be employed in needless inquiries, but also to keep the accused person in custody pending the result of the inquiry into the sufficiency or otherwise of the bail offered. The attention of the criminal authorities is, therefore, directed to section 499 of the Code of Criminal Procedure which requires the Magistrate to simply take a bond for such a sum of money as he may think sufficient from the accused and one or more sureties. At the same time, however, it is the duty of Magistrates to satisfy themselves that the sureties are, in point of substance, persons of whom it may reasonably be presumed that they can, if necessary, satisfy the terms of the bail-bond."
9. The position in the Punjab is identical. Chapter 10, Vol. 3 of the Rules and Orders of the High Court of Judicature at Lahore deals with bails and recognizances. A specimen form is also included. Vol. VI, Part B consists of Criminal forms. A specimen form regarding bail bond is given at number 67 but again the position remains unchanged.
10. Section 514, Cr. P. C. Which deals with the forfeiture of bonds, may partly be reproduced below "(1) Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken or of the Court of the Presidency Magistrate or Magistrate of the 1st Class, or when the bond is for appearance before a Court to the satisfaction of such Court, that such bond has been forfeited, the Court shall record the grounds of such proof and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid."
11. Thus the bond to be forfeited under this section should either be a bond authorised by the Code such as a bond for keeping peace or a bond for appearance before a Court. Obviously, the undertaking given by the petitioner even if it be termed as a bond for the sake of argument, is neither shown to be authorised by the Code nor is it for appearance of the accused in the Court. He has nothing to do with the appearance of the accused as contemplated by section 499. He is the Surety's surety-in so far as the recovery of the bond-money is concerned. In my opinion such a bond does not seem to be contemplated by the Code because it would otherwise have been expressly provided either in section 499 or the Schedule or elsewhere as in that case alone could it be enforced under section 514, Cr. P. C. Unfortunately there is, to my knowledge, no case-law on the point to provide guidance. Again, in Schedule V we find the specimen notice for forfeiture of bonds at No. XLV which only deals with the undertaking of the defaulter for the appearance in Court of a person. Similarly there is the specimen form No. XLVII for the warrant of attachment against a surety which also deals with the appearance: of the person concerned. No--where in the Schedule could I find a form which could cover the case of a person who verifies the capacity of a surety anti undertakes to indemnify the state in case the stipulated amount cannot be realised from him.
12. Similarly section 502, Cr. P. C. Entitles a surety for appearance of an accused person, to apply for being relieved of the responsibility under the bond but there is no provision in the Code for a man like the petitioner to apply for being similarly relieved of his obligations under the bond. Again, under section 514 if the amount forfeited cannot be realised from the Surety, he can be sent to Civil Prison for a period up to six months but there is no such provision for a person like the petitioner who may have verified the Surety's capacity. All this points only to one conclusion, namely, that such a bond is not contemplated by the Criminal Procedure Code.
13. It is the responsibility-in the wider sense of the term-of the Court concerned to satisfy itself that the surety is a man of sufficient means, apart from his ability to ensure the attendance of the accused.
14. Since tie is not supposed to know everybody and is often a stranger to the place of his posting, it is not normally possible for him to know personally as to whether the person who comes forward as a surety. Is a proper person or not. This is how, it seems, the practice of verification by Lambardars, Zaildars etc. Tray have been born. The practice suited not only the Courts but also the accused because it facilitated the speedy attestation and acceptance of the bail bonds.
15. The word 'bond' has not been defined anywhere in the Code. The Chambers 20th Century Dictionary defines it as A '"a writing of obligation to pay a sum or to perform a con--tract". In 59 W & C 188 as quoted in the Law of Bails by Mr. P. V. Rama Krishana it was defined as "an obligation given by the accused with one or more sureties and made payable to the proper officer with the condition that it shall be void upon the performance by the accused of such acts as he may legally be required to perform". The Webster's International Dictionary has defined 'bond' as "the sum to be forfeited to which a person subjects himself by covenant or agreement In case of non-fulfilment of stipulations"- The person verifying, may be liable for prosecution if it turns out that the person he so verified was not that particular person; perhaps it may be treated as a contract in some sense and may perhaps be enforceable in a civil Court but these are questions with which I am not concerned in this petition.
16. The question is as to whether, apart from these implications, the verification can be treated as a bond enforceable under section 514, Cr. P. C.? It seems to me that as the said verification is not provided for by the Criminal Procedure Code, b it is not a bond executed under the Code and hence does not attract the application of section 514, Cr. P. C. There is however, another reason why the petition should be accepted.
17. It is not denied that the surety had sufficient property on 16-8-1968, the date of executing the bond.
18. Sometime later his immovable property was acquired by the Government for purposes of the construction of Mangla Dam with the result that he had to leave the district for good and settle on alternate lands provided by the Punjab Government. The Surety's immovable property including his house having been taken over against his will---because acquisition of this type is involuntary and his consequent migration also being involuntary, the petitioner cannot be made to suffer. These consequences were brought about neither by him nor by the Surety but by the operation of law to which the Surety was a party by compulsion. In view of the principle enunciated by the maxim: Actus legis nemini est damnosus, meaning, an act of law shall prejudice no man, the petitioner cannot justly be made to shoulder the consequences of acquisition. If by one hand the Government chooses, for its own convenience, to demolish the security that was the founda--tion for the petitioner to verify the bond, she cannot be allowed to stretch out its other hand to batter him for making good the resultant loss in some other field. In any case it would be highly unjust to visit him with penalty in such circumstances in the creation of which he is unquestionably innocent.
19. Under these circumstances I accept the revision petition and set aside the order of forfeiture passed by the learned Special Judge, Mirpur.