1. ' This order will dispose of the Reference made by Sessions Judge, Sukkur addressed to the Registrar, High Court of Sindh wherein instructions/guidelines were sought to enable the subordinate Courts in respect of difficulties being faced by them regarding compliance of the observations made by this Bench in the case of Nizamuddin and others v. The State reported in PLD 1994 Karachi 517.
2. The letter/reference sent by the learned Sessions Judge, Sukkur (Mr. Wahid Bux Brohi) to the learned Registrar (Mr. Hamid Ali Mirza) reveals its subject as under:-- "Compliance of Directions of Hon'ble High Court in Cr.B.A. No,601' of 1994."
2. ' After referring para. 13(ii) of the judgment, the learned Sessions Judge stated that: "In this regard the lower Courts stand confronted with a difficulty when provisions of section 514, Cr.P.C. Are read with Article 4 of the Constitution of Pakistan.
3. ' It is, therefore, requested that further instructions/guidelines may kindly be issued in this respect enabling the Courts to make compliance of the above order in letter and spirit."
4. ' When the reference was placed before this Bench on 21-3-1995, notice was issued to learned A.-G.
5. To assist the Court. Mr. K.M. Nadeem, the learned AA.-G. Appeared in the Court and contributed his most valuable views as a gift for the judgment in reference. Several other points also came into light during hearing of the reference which were only sounding in the air prior to the reference.
6. Hence 1 considered it necessary to deal with all those points too in this reference to leave no scope for any other reference on any other point.
7. ' It is a matter of great happiness that the Judicial Officers do not hesitate in sending references to the Superior Judiciary whenever they feel any difficulty. This is a very good sign for judiciary in this advanced again, therefore, I welcomed the same with words of appreciation.
3. The reference relates to para. 13(ii) on page 525 of the reported judgment mentioned in para. 1 above. The opening sentence of the said para. Runs as under:- "What falls within the jurisdiction of this Court, I have no hesitation to opine that:-- The words 'to opine' mean (i) to think, (ii) to suppose, or (iii) to hold or express an opinion.
8. ' And the word 'opinion' means--
(i) a belief not based on absolute certainty or positive knowledge but on what seems to be true, valid or probable to one's own mind;
(ii) an evaluation, impression or estimation of the quality or worth of a person;
(iii) the formal judgment of an expert or a matter in which his (now her too) advice is sought;
(iv) the statement by a Judge bearing on a ,case."
9. ' I am sure the learned Sessions Judge must be fully aware of the real sense of opinion. The opinion of any handwriting expert in any case sought by any Court can be the best example to explain the above underlined words.
10. In comparison to the concept of opinion, the real sense of the word "direction" (with its verb "direct") possesses import of--
(i) giving authoritative instructions to (a person), or
(ii) ordaining, ordering or commanding that thing be done. (Ref: Webster's New Universal Unabridged Dictionary).
11. ' With the abovementioned difference between "an opinion" and "directions", I have no hesitation to opine again (as was opined with reference to the judgment and para. In reference) that: "it has become a routine that the persons who stand surety generally approach the Courts after the accused absconds with application under section 514, Cr.P.C. For reduction of forfeited surety amount under one pretext or the other. It is within the discretion of Courts to allow or dismiss such application. As the number of such professional sureties is increasing alarmingly, hence it would be better to make it clear in the bail order, especially in Hudood and Qisas cases, that no such application would be entertained if the accused absconded or absented from the Court."
4. It is well-known to every person of judicial mind that all legal opinions, directions, views, expressions etc. Can have literal as well as functional interpretations. The literal interpretation is exclusively verbal expression which dose not appear beyond the letera legis but the functional interpretation on the other hand is that which seeks the true intention of law. The duty of Judicature is to discover and to act upon the true intentions of the views which may be in the form of an opinion or a direction.
12. ' The learned Sessions Judge, Sukkur, after referring the abovementioned para. Which is the subject-matter of this reference, expressed that: "In this regard the lower Courts stand confronted with a difficulty when provisions of section 514, Cr.P.C. Are read with Article 4 of the Constitution of Pakistan."
13. ' The opinion expressed by this Bench in the para. In reference has no ambiguity neither in its literal nor in its functional meanings and which can be expressed in brief as under:-- "application of professional sureties for reduction of forfeited surety amount, who generally approach the Courts under one pretext or the other and which are increasing alarmingly should not be entertained."
14. If the learned Sessions Judge, Sukkur is of the view that section 514, Cr.P.C. Gives unlimited powers to the Courts even to entertain applications, for reduction of forfeited surety amount, of professional sureties too then such an interpretation may be correct in its literal sense but true interior of the law with respect to its functional interpretation can never be the same as presumed by the learned Sessions Judge. Hence the real import of the said para. In reference as expressed in brief is not in confrontation with Article 4 of the Constitution of Pakistan.
5. The learned Sessions Judge is believed to be aware of this reality that professional sureties appear only for monetary benefits and they usually blackmail the accused persons mostly by giving them threats that they would withdraw the surety or security papers or surety-bonds if they were not paid further money. If the accused are more powerful than the sureties, then they usually run away and leave the sureties in trouble. At this stage the professional sureties come forward for reduction of forfeited surety amount. If the accused are powerless, they remain in the clutches of blackmailing of professional sureties. I am sure that no learned Sessions Judge has any sympathy for any such professional blackmailer sureties to show any leniency to them.
6. Out of seven subsections, only subsection (5) of section 514, Cr.P.C. Deals with the applications for reduction of forfeited surety amount. The discretion to remit any portion of the penalty may be used by the concerned Courts when, on the face of evidence, it is proved that a person stood surety without any monetary benefits and had not connived at the abscondence of the accused.
15. Reference can be made to the cases reported in PLD 1963 SC 47, 1979 PCr.LJ 864, 1980 PCr.LJ 426, 1981 PCr.LJ 157, 1983 PCr.LJ 137/1472, 1984 PCr.LJ 1606, 1985 PCr.LJ 1724, PLD 1986 Karachi 647, 1986 MLD 2540, 1986 PCr.LJ 1214/1566/2028, 1987 PCr.LJ 821 and PLD 1987 Karachi 267.
16. Thus, subsection (5) of section 514, Cr.P.0 should not be treated by any Court as carte balanche to use their discretion unjudiciously under misconception that the word "may" gives them unchecked, unfettered and uninterfered discretion to accommodate professional sureties too. Such an interpretation, according to my point of view can neither serve any society nor can promote justice.
17. It would promote only corruption.
7. Although there is difference between an 'opinion' and a 'direction', yet an opinion of a High Court, if not taken in its strict literal sense, can be treated a direction in its functional sense by the.
18. Subordinate Courts. Perhaps the learned Sessions Judge, Sukkur presumed the opinion of this Bench as a `direction'.
19. ' I have presumed so because it was revealed at the time of hearing this reference that certain Judicial Officers and Advocates were of the view that discretion of the subordinate Courts under section 514(5), Cr.P.C. For reduction of forfeited surety amount could not be touched by the superior Courts. It was usually contended by the learned Advocates that the Supreme Court and other superior Courts have reduced the amount of penalty of a bail bond which have been forfeited by the Courts. In support of this contention it is mostly urged that in the case of Dildar and another v.
20. State reported in PLD 1963 SC page 47, the amount of penalty had been reduced to 1/5th. The other authorities where amount of forfeited bonds was reduced by the superior Courts are reported in Jawaid Iqbal v, State 1985 Pcr.LJ 1724, Azizur Rahman v. State 1975 PCr.LJ page 58, 1976 PCr.LJ page 1283, 1975 PCr.LJ page 954, Syed Nazir Ali Shah v. State 1983 Pcr.LJ 1472. On the basis of these authorities, several learned Advocates have usually expressed their views that directions or opinion given by this Bench in the para. In reference do not appear to be in consonance with the relevant provision of section 514, Cr.P.C. According to these learned Advocates subsection (5) of section 514, Cr.P.C. Is general in its nature, therefore, the Courts have powers to entertain the application for reduction of forfeited surety amount of all persons, may be genuine or professional because section 514(5), Cr.P.C. Provides that: ' The Court may, at its discretion remit any portion of the penalty mentioned and enforce payment in part only."
21. ' With due regards for the learned Advocates who had expressed the abovementioned views, the only impression which erupted in my mind is that the learned Advocates and certain judicial officers of the subordinate Courts have read different sentences of the para. In reference disconjunctively and have treated the opinion as direction. If they had read the opening sentence of para. 13 of the judgment in reference in conjunction with the remaining part of it, they would not have reached the said conclusion. To remove all kinds of ambiguities, if any, I would like tdreproduce the para. In reference by breaking it into the following two sub-paras.:
(a) It is within the discretion of Courts to allow or dismiss such application;
(b) As the number of such sureties is increasing, alarming, hence "it would be better" to make it clear in the bail order, especially in Hudood and Qisas cases that no such application would be entertained if the accused absconded or absented from the Court.
22. If the above lines are read conjunctively with their literal and functional sense, then no ambiguity is left to understand the real concept of section 514, Cr.P.C. Thus, discretion of Courts under section 514, Cr.P.C. Still lies with the Courts but the Courts are bound to use that discretion judiciously. The word "discretion" used in sub-clause (5) of section 514, Cr.P.C. Cannot be extended to the extent of misusing the same only by keeping its literal sense in the minds.
23. ' So far as the second portion of the para. In reference is concerned, I believe that the words "it would be better" used in it leaves no misconception about the intention that the surety be kept vigilant over the accused so that accused could not get a chance of absconding or absenting from the Court. The words "it would be better" be also read in conjunction with the words "to opine" as used in the opening sentence of para. 13 of the judgment in reference. If someone is/was not aware of the difference between an opinion and direction then the same has been explained in the above lines with their literal and functional sense. In spite of the above; if certain persons are over whimed or overwhelmed to show their over-intellectualism by raising connections for the sake of objections, then there is no cure for the inferiority or superiority complex of such persons, no matter they may be an extraordinary intellectuals as compared to others. As the same impression might have been taken by Judicial Officers besides the learned Advocates, therefore, to remove any such newly germinated, or already rooted impression in the mind of certain learned persons that applications of professional sureties for reduction of forfeited surety amount be also entertained as of genuine sureties by the subordinate Courts on account of their discretionary right, I consider it necessary to discuss all those judgments which are usually referred by the learned Advocates in support of that contention for getting forfeited surety amount reduced by propagating this concept that Courts have uninterfered powers to accommodate the professional as well as the genuine sureties. The main judgments are as under:--
(a) The case of Dildar and others v. The State reported in PLD 1963 SC 47 is the main case which is mostly referred or relied upon by the learned Advocates as well as by the Courts if they want to reduce the forfeited surety amount.
24. ' This case does not pertain to professional sureties. On the contrary it was held by the Honourable Judges of the Supreme Court in this case as under:-- "Finally, in assessing to what extent the bond should be forfeited, the Court would have regard to such matters as whether the sureties have any direct interest through financial or blood connection with the accused, whether they have connived at or procured the absence of the accused, and whether they have done their best to secure his attendance. These matters have not been enquired into by the Courts below. We have accordingly thought fit to question the two sureties ourselves on these points.
25. ' We find that both the sureties acted through mere benevolence on behalf of another shopkeeper whom they knew either directly or through an agent. Ghulam Hussain had a shop about 20 years away from that of Mir Jan who had been a customer of his for some 10 years and he had always thought of Mir Jan as honest man because his behaviour was good. When he was arrested a relative of his named Muhammad Yamin approached Ghulam Hussain who agreed out of neighbourly feeling to stand surety. For sometime Mir Jan appeared regularly in Court until he fell ill and absented himself on medical certificate, and then while still unwell, he left Karachi for some place near Multan on hearing of his mother's illness. Ghulam Hussain later heard from Mir Jan's relative Muhammad Yamin that in the Multan area, Mir Jan contracted double pneumonia and dies there in June or July, 1959. Ghulam Hussain was not connected at all with Mir Jan who was a Pathan and came originally from the Frontier.
26. ' Dildar runs a hotel in Karachi and comes from the United Provinces of India originally. He became surety for Mir Jan at the request of one of his servants Zarin Khan Pathan, a relation of Mir Jan. Zarin Khan had been working for Dildar for some 3 or 4 years. Relying on what Zarin Khan said, he stood surety. Later on, Mir Jan disappeared and Zarin Khan also disappeared so that he was helpless in the matter of procuring Mir Jan's attendance.
27. ' We have not thought it necessary to make further investigation into the truth of the statements made by these persons, as it seems clear that Ghulam Hussain and Dildar themselves have nothing in common and that they are not connected with Mir Jan who came from a different part of the country. On the face of it, it seems clear that these two persons stood surety for Mir Jan out of ordinary fellow-feeling, but they certainly appear to have taken their responsibility altogether too lightly, it does not appear that either of them gained any benefit from standing bail for Mir Jan, nor do they appear to be in any way connected with his alleged criminal activity, or with his scope from Karachi. Whether or not either of them made an attempt to enquire in Multan regarding Mir Jan at any earlier stage, it is certain that Ghulam Hussain tried to do so under this Court's direction without success. Since Muhammad Yamin too has left Karachi and Ghulam Hussain's information was completely vague, it was natural that his effort should not have succeeded."
28. ' It needs not to observe how many subordinate Courts take such pain while disposing of applications under section 514, Cr.P.C. As was taken by the Hon'ble Supreme Court but I would like to leave this question for the subordinate Courts to decide it in future.
(b) The case of Banaras v. The State reported in 1975 PCr.LJ 954 is one of the best cases to understand the real concept of section 514(5), Cr.P.C. As well as the true import of the word "discretion" used in the said provision of law. The opening sentences of para. 5 on page 956 of the said judgment run as under:-- "I think there can be no doubt, whatever, that the surety is responsible for the entire amount and that in law the learned Judge was quite competent to forfeit the whole amount. It does not necessarily, however, follow that the entire sum should have been forfeited."
29. ' After referring the case of Dildar v. The State (supra), Tufail Ali A. Rahman, C.J. (as he then was) reached the following conclusion:-- "Now the surety was not personally present before me and I had, therefore, no means of enquiring into the circumstances and was not, therefore, able to pursue the course of myself deciding as to how much of the amount should be forfeited. Clearly the learned Judge did not even go into this question and I think the best course, therefore, for me is to remand this case back to the learned Judge for hearing the surety afresh and considering all the circumstances, and then deciding how much of the penalty be remitted and how much be recovered. Of course, if on all the circumstances the learned Judge comes to the view that this is one of those cases were the entire amount should be forfeited this order will not prevent him from doing so but then he must state his reasons adequately for taking that course."
30. ' I would be failing in my duty if I do not express my concern that most of the subordinate Courts do not act in accordance to the observations made in the above judgment.
(c) Similar is the position of all those judgments which were delivered by the S.Bs. Of High Courts and are usually referred by the concerned Members of the Bars and the Benches. This reality cannot be denied by any one that all those judgments are sub silentio in their nature on the issue of professional sureties and their applications for reduction of forfeited surety amount under section 514(5), Cr.P.C. Instead of discussing those judgments, I would like to refer the case of Jamroz Khan v. The State reported in 1990 SCMR 1313 to show that full amount of surety be recovered from the surety if he/she failed to procure the attendance of an absconding accused and there are no peculiar circumstances to show leniency to such person. Style of passing routine orders on application under section 514(5), Cr.P.C. By any subordinate Court has become very common nowadays which can never be appreciated by the superior Courts.
31. ' In the case of Jamroz Khan (supra), the surety had furnished surety bond of Rs,50,000 for an accused who absconded after his release. The learned Additional Sessions Judge ordered to surety to deposit the full surety amount of Rs,50,000 within 14 days. This order was challenged in a revision petition before the High Court but the revision was dismissed by the High Court. Hence petition was filed before the Supreme Court for leave to appeal. The contention of the petitioner was the same as is usually contended by the parties and is accepted by the subordinate Courts as a routine that the petitioner stood surety for the accused as he was his neighbour and thus it was for no gain and the disappearance of the accused was not with the connivance of the petitioner. The contention was repelled by the Honourable Judges of the. Supreme Court in the following words: "we are of the opinion that Mushtaq Ahmed is admittedly charged for the offence of murder and it was the duty of the surety to have procured the attendance of Mushtaq accused and thus no ground appears for us to show any leniency in the reduction of the forfeiture of bail bond of the full amount furnished by the petitioner. Thus, finding no force in this petition and it is accordingly dismissed."
32. Hence it is clear that the Subordinate Courts have no such discretion which could be used unjudiciously according to the will of their own.
8. It may not be out of place to mention that most of the learned Advocates do not take into consideration the difference between "persuasive" and "authoritative" decisions. I, therefore, consider it necessary to reproduce few lines from "Salmond on Jurisprudence" by P.J. Fitzgerald which run as under:-- "Judicious decisions may be distinguished as authoritative and persuasive. An authoritative precedent is one which Judges must follow whether they approve of it or not. A persuasive precedent is one which the Judges are under no obligation to follow but which they will attach such weight as it seems to them to deserve.
33. ' The distinction between authoritative and persuasive precedent is rendered somewhat difficult by the fact that the same precedent may be authoritative in one Court and persuasive only in another. Thus, a decision of the Court of Appeal is authoritative for the High Court but persuasive only for the House of Lords." (Chapter 5. Precedents).
34. On the basis of above-quoted lines it can be said that a decision of any Judge of the High Court on any law point is authoritative for the Sessions Courts under Article 201 of the Constitution of Islamic Republic of Pakistan but the same may be persuasive for another Judge of the High Court. Similarly any decision by the Supreme Court is authoritative under Article 189 of the Constitution of Islamic Republic of Pakistan for all the Subordinate Courts.
35. So far as the exercise of discretion is concerned, it is necessary to point out that if any Judge exercises his discretion in any matter, it may not be presumed that the same has become a precedent to be followed by other Judges. For example, in the cases of bail of an accused charged for possessing heroin, it is usually argued that bail was granted by the learned Judge of a superior Court in case of possessing so much heroin powder, therefore, the present accused be also allowed bail as he was possessing heroin of smaller quantity. Any discretion exercised by any Judge of a superior Court can never be persuasive or authoritative for any other Judge of the same Court. It is only the law point discussed, opined or viewed by a Judge of superior Court which can, not only, be persuasive but also authoritative for other Judges of the same High Court. On account of this undisputed rule of jurisprudence, I always considered myself under moral obligation to get help from the views expressed by other Honourable Judges of the High Court. Whenever I found that a new law point has come in my way in the nature of direction and which is contrary to the directions given by the other Judges of High Court, I preferred the matter to the Hon'ble Chief Justice to constitute a Higher Bench to decide that issue. However, if I find that any law point has already been decided and is in the nature of opinion but with contrary views already expressed by other Judges too, then I treat the judgments as persuasive and express my own view.
36. By keeping in view the difference between authoritative and persuasive judgments, the subordinate Courts are expected to keep it in their practice that, at the time of disposing of any application or passing any order, all those judgments referred by the learned Advocates be taken into consideration because all the judgments of the superior Courts are authoritative for them and they must be distinguished from each other if the learned Advocates of the parties refer apparently conflicting judgments. Referring the judgments quoted by one party and ignoring the cases referred by other party is not an appreciable or good sign for promotion of justice.
37. From the above discussion, it is thus evident that the judgments which are usually referred by the learned Advocates at the time of hearing application under section 514, Cr.P.C. Do not deal with the question of professional sureties who come forward to get the accused released and then do not keep their eyes upon the accused. The para. In reference deals with such sureties to keep them vigilant about their duties in capacity of sureties.
9. During the pendency of this reference it was brought to the notice of this Court that there was confusion relating to the amount of surety as given in para. 13(i) of the case in reference. I think that there is no scope of any confusion if real concept of words 'to opine' used in the opening sentence of para. 13 of the judgment is taken into consideration. Similarly if difference between surety and security or surety with or without security, or surety in the form of P.R. Bond or surety with security as well as P.R. Bond totalling to the amount of Diyat etc. Is also taken into consideration, then every concept or opinion is harmonized leaving no confusion for anybody. In this connection it was apprehended that if no security is obtained from a surety, then not only the accused but the surety may also disappear. In such cases, recovery of forfeited amount of surety bond would become impossible. This apprehension has the greatest force in it but no one can deny this reality that accused person and sureties easily run away even if security papers are submitted by the sureties and in most of the cases the security papers are found forged. It has been observed that several Sessions Judges have adopted the procedure of sending surety or security papers for verification to certain offices but this procedure does not seem to be proper because section 499, Cr.P.C., which seems to be the only provision of law to deal with this subject, does not provide any concept of verification from any office. The case of Muhammad Saleem v. The State reported in PLD 1979 Karachi 187, which was decided on the basis of decisions reported in ILR 37 Nag. 168, AIR 1922 All. 541 and PLD 1965 Pesh. 140, can be referred regarding the issue of verification as viewed in the above lines.
38. Notwithstanding the legal position of verification as stated above, the Courts are fully aware of this fact that, in spite of adopting the process of verification of security papers, professional sureties always succeed to get the forged papers/documents verified easily from the concerned offices. I think that if any Court has unshattered faith about any person regarding his honesty and such person comes forward to stand surety for an accused, the Court may exercise its discretion to accept him as solvent surety without asking him to submit any security papers. So far as the amount of surety is concerned, certain learned Advocates have expressed their views that amount of surety equal to amount of Diyat would not be justified because it may create hardship for the poors. I think that if the learned Advocates had taken into consideration the difference between surety and security, then this view with reference to the hardships of rich or poor would not have germinated. It may be interesting to point out that in the case of Asif Ali Zardari v. The State reported in 1993 PCr.LI 781, decided by a Full Bench of this Court the amount of surety for an offence under sections 13(f) and 16(b) of Pakistan Arms Ordinance was fixed Rs,5 lacs. Can the learned Judges of the subordinate Courts consider the same as direction by a Full Bench of this Court? Or can ask every offender to submit security papers of Rs,5 lacs as amount of surety bond in an offence under sections 13(f) and 16(b) of Arms Ordinance on the basis of Asif Ali Zardari's case (supra)?
39. ' It is an undisputed reality that nowadays it is not an easy task to make both ends meet due to poverty and unemployment. Therefore, demanding security papers even of very small amount from such persons, if they want to stand as surety, may not be appreciable in the eyes of common people. Hence surety with security does not solve the purpose of bail if granted to a poor person who would go on rotting in jail on account of his innocent crime of being poor in a polarized society. It can, therefore, be expected from the learned subordinate trial Judges to search out new horizons of their working style to meet the demands of new situations and circumstances arising by now and then in this country instead of clinging with old traditions of passing orders as a routine.
10. It needs not to point out that subordinate Courts are bound to follow the judgments of the superior Courts while deciding any case or passing any order, where circumstances given in the judgments of the superior Courts are similar to the case in their hands. If there are apparently conflicting judgments on a point and in case, they feel any' difficulty in reaching a definite conclusion and which, in their view, can create hardships in future, they need not hesitate in sending such references to their superior Courts as was done by the learned Sessions Judge, Sukkur in this reference.
40. Last but not the least, at the time of authoring the judgment in reference, the most important duty before me was to show that Islamic Law of Qisas, as introduced in this country, was the law of nature. The main characteristics of the laws of nature is that they remain basically unchanged.
41. Even addition of any new thing does not change the basic nature of that law. For example, the law of Qisas (Retaliation) i,e, life for life was never changed till date as was revealed through Holy Moses, Holy Jesus the Christ and Holy Prophet Muhammad (Peace be upon him). So far as its application was concerned, it was totally inflexible without any concept of forgiveness during the period of Holy Moses. It became extremely flexible during the period of Holy Christ as advised by him to his followers but not by the State. When the Holy Qur'an was revealed the extremities of the law i,e, inflexibility of the Holy Moses' period or flexibility of the Holy Jesus' period, were joined together and the same was converted into moderate elasticity. The basic law of nature i,e, life for life was kept unchanged but right of forgiveness was given to the legal heirs of the deceased without any interference of the State if the parties decide to compromise on any of the terms permitted by the sacred laws of nature (Ref. Para. 10 of the judgment in reference). I am fully aware of this aspect that the supporters of sectarianism or so-called progressivism may not like the progressive trend of sacred laws but unfortunately the ink of my pen has no such chemical which could convert the smoky fragrancies steaming out of the furnace of their burning heart into attractive smelling perfumes because I am morally and Constitutionally bound to follow the law promulgated in the country such as the Laws of Qisas and Hudood in accordance to their real spirit.
42. ' Before parting with this order, I would be failing in my duty if I do not place on record my feelings of appreciation for Mr. K.M. Nadeem, the learned A.A.-G. For assisting this Court and for the learned Sessions Judge, Sukkur who drew attention of this Court to the difficulties faced by him in compliance of the opinion/directions (as .Presented by him) with reference to the said judgment.
43. This was a healthy sign on the part of the subordinate Court and the same would always be welcomed. With the above observations, the Reference stands disposed of accordingly.