1. ' This revision application has been submitted by the present applicant challenging the orders passed by the learned Second Additional Sessions Judge, Kandhkot on 20-5-1989 whereby the applicant was penalized with the amount of Rs,30,000 being the amount of surety bond.
2. ' Briefly the case is that the present applicant had stood surety for accused Ghulam Mustafa who was facing trial alongwith other co-accused in Sessions Case No, 238 of 1984 pending before the Court of first Additional Sessions Judge, Kandhkot in the sum of Rs,30,000. According to the surety he had executed the bond for production of accused Ghulam Mustafa in the Court of First Additional Sessions Judge only or in case of failure, to forfeit the amount of Rs,30,000. It is pointed out by Mr Habib Ullah Shaikh , the learned counsel for the applicant that this case was transferred to the Court of Second Additional Sessions Judge Kandhkot in the year 1987 were also accused Ghulam Mustafa used to attend the case on the dates of hearing and ultimately he started remaining absent from 1-12-1988. The learned Second Additional Sessions Judge issued notice to the surety on 15-1-1989 and ultimately passed the impugned order on 25-7-1989. Mr. Habib Ullah has submitted that the bond executed by the present applicant was for production of accused in the Court of First Additional Sessions Judge and not in any other Court to which the case may subsequently be transferred. He has placed reliance on subsection (1) of section 499, Cr.P.C. Which reads as under:- "499.-Bond of accused and sureties.--(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 or otherwise directed by the police officer or Court, as the case may be."
3. ' He has further placed reliance on the cases of (1) Hasan v. State NLR 1983 Criminal 24, (2)
4. Muhammad v. State 1977 P Cr. L J 46, (3) Haji Abdul Ghani v. State PLD 1970 Kar.
5. 46.
6. ' Mr. Muhammad Siddiq Kharal, the learned Addl. A.-G. Has submitted that the surety, once having entered into a bond with the Court for production of accused is liable to produce the accused in not only the same Court but also in any other Court where the said accused is required to be produced. He has placed reliance on subsection (2) of section 499, Cr.P.C. Which reads as under:- "(2) If the case so require, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge."
7. ' He has also relied on the case of Haji Abdul Ghani v. State PLD 1970 Kar.
8. 46.
9. ' I have given anxious consideration to the submissions of the learned counsel and the case-law cited by them. In the case of Haji Abdul Ghani v. State PLD 1970 Kar. 46 which has been relied upon by both the learned counsel, Ghulam Rasul K. Sheikh, J. (as he then was) while interpreting the above provision held: "Subsection (2) of section 499, Cr.P.C. Clearly means that the bond must expressly provide for contingencies arising out of transfer of case to other Court. It not only lays down that the time and place be mentioned in the bond but it also lays down that the bond may provide for the appearance in any other Court which is obviously intended of the case to another Court. It, therefore, follows that if the obligation to appear in the Court to which the case may be transferred has not been specified in the bond, the surety cannot be penalised for failure of the accused to appear in that Court."
10. ' In the same case it was further held as under:- "indeed, the Cr.P.C. Provides for the transfer of the case but in the present case the bond contains no provision binding the surety to produce the accused in a Court other than the Court mentioned in the bond. The terms of the bond being penal must be construed strictly. The contingency that the case may be transferred to some other Court or Courts was never contemplated by the parties nor any such condition was imposed in the bond. There is no reason, while construing the penal clause of a surety bond, for the application of a legal fiction. So it is not possible to construe it differently."
11. The same principle has been followed by Jamaluddin H. Ahmad, J. (as he then was) in the case of Hasan v. State and also by Z.C. Valliani, J (as he then was) in the case of Hasan v. State. A plain reading of the provision of section 499, Cr.P.C. And the above case-law would clearly show that the surety enters into a bond to produce the accused at the time and place as specified in the bond and not at any other place. In the cases of instant nature the surety undertakes to produce the accused in the Court where the said bond was exented by him and not any other Court or place where the case is subsequently to be transferred. The maximum interpretation that can be put to section 499, Cr.P.C. Would be that the accused himself is put under an obligation to produce himself as and when B required which would even include the transferee Court. In these circumstances I am of the view that the order passed by the Second Additional Sessions Judge, before whom no such bond was executed by the surety suffers from the illegality and is liable to be set aside. I accordingly allow this revision application and set aside the order.
12. ' HA. 989 of 1989 stands disposed of.