This is an application under section 561-A, Cr.P.C. For quashment of order, dated 9-6-1991 of the learned Additional Sessions Judge-I, Swabi, whereby he decided `to withdraw the bail bonds of the petitioners which seemed to be insufficient' and directed them to furnish fresh bail bonds in the sum of Rs.50,000 with two sureties each in the like amount and Rs.20,000 cash per each accused to be deposited in the Government Treasury as a security of their peaceful behaviour'. It was further observed that `in case they (the petitioners) repeat their belligerent behaviour the bail would be cancelled and Rs.20,000 each would be forfeited to the State---.
2. The facts giving rise to the present application are that the petitioners were charged under section 334 of the Enforcement of Qisas and Diyat Ordinance, 1991 by Said Nazir complainant for belabouring him with sticks and axes vide F.I.R. No.173, dated 8-4-1991 registered at Police Station Swabi. They were, however, admitted to bail on 2-5-1991 by a Magistrate of First Class, Swabi. Said Nazir moved an application for cancellation of bail granted to the petitioners. It appears that during the pendency of this application the learned Additional Sessions Judge-I observed that `the doctor presented the X--rays report from which it is quite clear that the complainant has suffered three fractures in the legs and arm, therefore the case falls within the four corners of section 337 of the Enforcement of. Qisas and Diyat Ordinance and that under subsection (2-F) the punishment for which has been prescribed under section 337-F paragraph 6 in respect of Munaqqila which extends to 7 years' R.I. And Daman'.
3. The learned counsel for the petitioners contended that the impugned order of cash deposit of Rs.20,000 for each of the petitioners suffered from serious legal infirmity and calls for interference by this Court under section 561-A, Cr.P.C.
4. The learned Advocate-General attempted to defend the impugned order of the learned Additional Sessions Judge by referring to the case of Umar Daraz Khan v. Pakistan Government PLD 1956 Pesh.
65. This authority, I am afraid, is not at all attracted to the facts of the case in hand. In the case of Umar Daraz Khan a bond to keep peace was forfeited by the, commission of an offence under section 325, P.P.C., which, however, was allowed to be compromised by the Court and the accused was acquitted. Subsequently proceedings under section 514, Cr.P.C., were initiated against them by the police and it was required of the Court that the three accused Persons therein having committed the breach of peace by committing an offence under section 325, P.P.C. Had forfeited their bonds and, therefore, they were required to be penalised. The Magistrate concerned ordered the three mused to pay specified amount holding that they had caused breach of peace by committing an offence under section 325, P.P.C. And in consequence thereof forfeited the bonds to the extent of the specified amount. After their appeals failed before the District Magistrate, in revision, Muhammad Shaft, J.C. As his Lordship then was, held that notwithstanding composition of the penalty of forfeiture of offence bond could still be imposed if there was proof under section 514, Cr.P.C. That the person bound down had infact committed brew of peace. Obviously the proposition raised before me is quite different front that cited above.
5. The impugned order when read as a whole is indicative of the fact as if the learned Additional Sessions Judge was not disposing of an application for cancellation of bail but was seized of security proceedings under Chapter VIII in particular the provisions of sections 107, 118 and 122, Cr.P.C. Which squarely fall under the magisterial powers, rather than section 497(5) under which the learned Additional Sessions Judge was seized of the matter.
6. After the order of bail is passed the bonds are furnished under sections 498 and 499, Cr.P.C. The interpretation of these two sections came up for consideration in: (1) Lathi Narayan Kundu v. The Crown PLD 1955 Dacca 84, (2) Abdul Ahad v. The State 1970 P Cr. L J 1256 and (3) Muhammad Riaz v. The State 1979 P Cr. L J 427 wherein it was consistently held that section 499, Cr.P.C. Contemplates the execution of a bond and not cash deposit and, therefore, the order to that effect being utterly against law was set aside.
7. In this view of the matter, the order dated 9-6-1991 requiring the petitioners to deposit cash amount of Rs.20,000 each as security in a bail matter being in excess of jurisdiction vested in the Court of Session, is hereby quashed. The application is accordingly accepted. The petitioners shall be released on bail on furnishing bail bonds in the sum of Rs. 50,000 each in the like amount to the satisfaction of Assistant Commissioner, Swabi.