Director Research University of Agriculture, Peshawar invited quotations for the supply of specified vehicles qua which the quotations of Auto Trading Centre, Lahore were accepted as a result whereof some agreement was executed and the sale consideration was paid in advance. The Firm supplied two vehicles and failed either to supply the remaining vehicles or return the balance amount. After making payment of some miswwigtO, amount a balance of Rs.28,68,000 still remains due.
2.' A case was registered under section 406/419/420, P.P.C. At Police Station University Campus at Sr. No.7 on 6-3-1995. Out of the three accused involved, one Masood Khan partner has been arrested. He was refused bail by the learned Resident Magistrate, University Campus, Peshawar.
The same was allowed by the learned Additional Sessions Judge, Peshawar vide order, dated 4-6- 1995 subject to the furnishing of Bank guarantee to the tune of Rupees fifteen lacs. The amount being exorbitant, the accused made an application to the same Court for reduction of the amount which was refused through order, dated 1-8-1995 and hence this petition which, in the circumstances discussed, is treated as revision.
3. The learned Additional Sessions Judge had refused to reduce the amount of Bank guarantee on the only ground that it had no authority to do so and that he having become functus officio, the remedy left for the accused was to go to the higher forum. This was not a proper appreciation of law. Under section 369, Cr.P.C. a Criminal Court though cannot review its judgment yet can review its order. A pronouncement made in bail matters is always an order and not a judgment and hence can be modified or amended. It is for this reason that a Court can even cancel the bail granted by itself, muchless altering the conditions of bond or reducing the amount thereof. I hold that the learned Court was empowered to reduce the amount, of bond, in case it was otherwise justified.
4. Had the matter been limited to the above extent, I would have sent the case back to the learned trial Court for giving a decision but it involves other legal points as well, identified during hearing.
5. Regardless of power to reduce or not to reduce the amount to Bank guarantee, the question arises as to whether a Court releasing an accused on bail has the authority at all to ask for Bank guarantee. In this behalf one can rely on section 499, Cr.P.C., which provides that before any person is released on bail or released on his own bond, a bond for such sum as the Court may deem proper and sufficient shall be executed by such person. A plain reading of section 499, Cr.P.C.
Indicates that it does not provide for a security to be taken in the form of cash or Bank guarantee.
Evidently Court has no power to demand as security like that. Muhammad Yousaf v. The State 1986 M LD 2632 is a case where Mr. Justice Muhammad Rafique Tarar had also arrived at the same conclusion.
6. The next question that crops up for determination is that if the Court had no power to demand Bank guarantee or cash deposit under section 499, Cr.P.C., then what was the purpose of providing section 513 in Chapter XLII of the Code of Criminal Procedure that apparently gives authority to the Court for asking deposits in cash or in Government Promissory Notes to such amount as the Court may fix, in lieu of executing such bond.
7. Mr. Abdul Qadir Khattack, learned counsel for the accused argued that section 513, Cr,P.C. Should not be applied to the cases of bail bond when section 499, Cr.P.C., is already and directly available qua the matters in bail. I have gone through the entire sections concerning law of bails and bonds including section 513, Cr.P.C. And have no difficulty in holding that section 513, Cr.P.C. Also deals with the bonds asked for under section 499, D Cr.P.C., but, in a different manner. It was this immediate link between the aforesaid sections that in the newly enacted Code of Criminal Procedure in India in 1973, the provisions as to bails and bonds were brought under one Chapter XXXIII and all the sections Nos. 441 to 444 corresponding to sections 499- to 502 of our Criminal Procedure Code were placed immediately before section 445 corresponding to our section 513, Cr.P.C. "Deposits instead of recognisance" is the heading of section 513, Cr.P.C. Which for all convenience ought to have been placed after section 502, Cr.P.C. The difficulty having been removed in the Indian Criminal Procedure Code, section 445 corresponding to our section 513, Cr.P.C. Has been placed immediately after section 444 corresponding to our section 502, Cr.P.C.
8. Although we can read sections 499 and 513, Cr.P.C. Together but the discretionary power exercised under section 499, Cr.P.C. And under section 513, Cr.P.C. Is mutually exclusive and not concurrent. The word "permit him to deposit" used in section 513, Cr.P.C. Are not at all without significance and suggest of a situation where something is permitted upon the request of the accused but never ordered by the Court of its own. .The section does not authorise a Court to demand a cash security but the same can be F permitted only if opted by the accused. The underlying object of this section is to enable an accused to deposit cash security in case he is unable to find-sureties whereas the basic job of the Court under section 499, Cr.P.C. Is to ask for a bond with or without sureties. The conclusion in nutshell is that a Court is empowered to ask for a bond of a certain amount with sureties but cannot ask for cash deposit or Bank guarantee unless the accused opts for it and the Court considers the same just in the circumstances.
9. In the present case the Court granting bail, at the very first instance and under section 499, Cr.P.C. Has asked for Bank guarantee which was not justified. While holding so, I must observe that there is no difference between asking for cash deposits and asking for Bank guarantee. Either of the two being the same can be asked under section 513, Cr.P.C. The order dated 4-6-1995 is set aside and the petitioner Masood Khan is directed to be released on bail provided he furnishes bail bond in a sum of Rs.5,00,000 (five lacs) with two sureties each in the like amount to the satisfaction of Illaqa Magistrate alone.
9. The accused belongs to Lahore and does not seem to have sufficient links at Peshawar and hence his learned counsel as well as his mother and wife have stated at the Bar on behalf of the accused that the deposit of cash amount would be preferred and so is prayed for. The reason being genuine, the prayer of the learned counsel is accepted and under section 513, Cr.P.C. The accused is permitted to deposit the amount in cash. He is hereby directed to he released on bail provided he furnishes a personal bond in a sum of Rs.5,00,000 (five lacs) with Bank guarantee to be furnished for the same amount to the satisfaction of Resident Magistrate, University Campus.