1. This is a Revision Application preferred from the order of Special Judge, Anti-Corruption (Provincial), Karachi dated 22-7-1984 whereby bail bond executed by the applicant Malik Sultan Ahmed as a surety was forfeited and he was directed to pay a sum of Rs.5,000 as penalty.
2. The facts leading to this case are that in the Anti-Corruption case filed against the accused Mohammad Hussain and Gulab Khan and two others, the Deputy Commissioner Karachi (East) by his order dated 30-1-1983 granted bail to the said two accused. The applicant Malik Sultan Ahmed stood surety for them and executed surety bond in the sum of Rs.20,000 each. Subsequently the same accused moved application before the Special Judge Anti-Corruption for anticipatory bail perhaps realizing that the Deputy Commissioner had no jurisdiction to grant them bail. Their application was, however, rejected by order, dated 3-2-1983.
3. The case was however challaned in the Military Court. Thereafter both accused Muhammad Hussain and Gulab Khan seem to have been admitted to bail by D. M. L. A., Headquarters. The case was ultimately transferred to the Court of Special Judge, Anti-Corruption (Provincial). As the accused failed to appear in the said Court the learned Special Judge passed the impugned order forfeiting the surety bond executed by the applicant in pursuance of the order passed by the Deputy Commissioner.
4. After hearing the arguments addressed at the Bar, the revision application was allowed by short order, dated 11-2-1986 for reasons to be recorded separately. Following are reasons in support of the short order:-- It goes without saying that the bail bond forfeited by the learned Special Judge was executed by the applicant in pursuance of the order of Deputy Commissioner, dated 30-1-1983, granting bail to the accused. It was contended on behalf of the applicant that since the accused were involved in Anti-Corruption case, the order of the Deputy Commissioner was without jurisdiction. In this connection he referred to the impugned order in which even the learned Special Judge has not controverted the argument raised before him that the Deputy Commissioner had no jurisdiction in the case. This is clear from his observations: "the contention was without any force as no person could be allowed to approbate or reprobate at one and the same time."
5. Apart from above the learned counsel also made reference to the order of the learned predecessor of the Special Judge dated 3-2-1983 whereby the accused's application for anticipatory bail was rejected. While rejecting the application he observed: "While rejecting the bail application, I order that notice be issued to learned District Magistrate (East), Karachi to explain the circumstances in which the bail application was entertained without jurisdiction, within seven days bf the receipt of this notice and why the matter should not be reported to the Honourable High Court and Chief Secretary to Government of Sind."
6. Thus, the learned predecessor of the learned Special Judge was clearly of the view that the Deputy Commissioner (District Magistrate) Karachi East had absolutely no jurisdiction in the case. He went to the extent of calling for explanation of the Deputy Commissioner as to how he had granted bail.
7. "In a case under section 498, I.P.C. The trying Magistrate is competent to issue a warrant instead of issuing a summons for the attendance of the woman alleged to have been enticed away, but, in order to comply with the provisions of section 90, Criminal P.C. It is necessary to record reasons for issuing the warrants in the first instance and if the Magistrate fails to do so, the warrant must be regarded as wholly illegal and the bond given by the surety for the woman's attendance has no legal force and cannot be forfeited if the woman does not appear."
8. The above authority is fully applicable in the instant case. I am in respectful agreement with the views expressed in the above-reported case.
9. The subsequent events that took place after the passing of the order of the Deputy Commissioner on 30-1-1983 clearly indicate that after the said order not only the learned predecessor of the Special Judge had passed order on 3-2-1983 rejecting the bail application of the accused for anticipatory bail but also the Military, Court had passed order at-its own level admitting the accused to bail. Both these orders which are subsequent to the order of Deputy Commissioner had the effect of superseding the order of the Deputy Commissioner Therefore, on this ground too the applicant who had executed 'surety bond in pursuance of the Deputy Commissioner's order stood relieved of the ' liability arising from that bond. In view of the legal position stated above, the learned State counsel also did not support the impugned order.
10. For above reasons the Revision Application was allowed and the impugned order was set aside.
11. M.Y.H.Petition a flowed.