Abdul Sattar respondent No,2 instituted a criminal complaint for the prosecution of Muhammad Saleem son of Muhammad Ali caste Gondal resident of 339-A, Model Town, Gujranwala under section 307/406/420/ 506/34, Pakistan Penal Code, in the Court of the learned III Additional Sessions Judge, Dadu (Sindh). Muhammad Saleem accused was summoned by the said learned Court who did not appear and his non-bailable warrants of arrest were issued. Muhammad Saleem was arrested in Gujranwala (Punjab) on 1-1-1997 who was lodged in the Central Jail, Gujranwala for onwards transmission and production before the aforesaid learned Court at Dadu (Sindh) on 11-1-1997, being the next date of hearing. In terms of proviso II to subsection (1) of section 86 of the Code of Criminal Procedure Muhammad Saleem made an application before the learned Court of Session at Gujranwala for his admission to interim bail after arrest which was granted on 4-1-1997 by a learned Additional Sessions Judge. He was admitted to interim bail subject to his furnishing bail bond in the sum of Rs,1,00,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the learned Additional Sessions Judge, Gujranwala and the undertaking of his appearance before the learned trial Court at Dadu (Sindh) on 11-1-1997. Fida Hussain petitioner of this Criminal Revision No,258 of 1997 stood surety for the aforesaid Muhammad Saleem accused. He executed the bail bond and the undertaking before the learned Additional Sessions Judge, Gujranwala. Muhammad Saleem accused of the case was released on interim bail from the Central Jail, Gujranwala. On 11-1-1997 Muhammad Saleem accused did not appear before the learned III Additional Sessions Judge, Dadu (Sindh).
2. On 28-1-1997 Abdul Sattar complainant of the case before the learned trial Court at Dadu (Sindh) made an application before the learned Additional Sessions Judge, Gujranwala (Punjab) for initiating the proceedings under section 514 of the Code of Criminal Procedure against Fida Hussain surety on the ground that Muhammad Saleem accused did not appear before the learned trial Court at Dadu on 11-1-1997 who (surety) was criminally liable thereof. The learned Additional Sessions Judge took cognizance of the matter and issued the notice. Fida Hussain petitioner filed the reply wherein he took up the stand that Muhammad Saleem accused went to the learned trial Court at Dadu where the learned Presiding Officer was availing the casual leave. He contended that he had not procured any material gain from the accused.
3. The learned Additional Sessions Judge, Gujranwala (Punjab), held that Fida Hussain surety was liable due to the non-appearance of the said accused before the learned trial Court on 11-1-1997 and in the proceedings under section 514 of the Code of Criminal Procedure directed him to deposit the aforesaid amount of surety in the sum of Rs,1,00,000 (Rupees one lac only) in the Court within one month.
4. Feeling aggrieved Fida Hussain has filed this Criminal Revision petition with the assertion that he was not factually and legally liable in the matter due to the absence of the learned Presiding Officer at Dadu on 11-1-1997 and that even the learned Additional Sessions Judge, Gujranwala (Punjab) could not proceed against him under section 514 of the Code of Criminal Procedure becaus accused was not to be tried by him.
This petition has been resisted by the respondents.
5. I have heard the learned counsel for the parties as well as the learned A.A.-G. And gone through the record before me. The main contention of the learned counsel for the petitioner is that in terms of proviso II to subsection (1) of section 86 of the Code of Criminal Procedure the learned Additional Sessions Court, Gujranwala was bound to forward the bond to the learned Court at Dadu and it is enough to make out that under section 514 of the Code of Criminal Procedure the proceedings were to be conducted at Dadu by the learned trial Court, obviously after cancellation of the bail. He maintained that after the disposal of the application for interim bail at Gujranwala on 4-1-1997 the learned Additional Sessions Judge had become functus officio. On the contrary the learned Assistant Advocate-General and the learned counsel for Abdul Sattar respondent laid the emphasis that the order about interim bail was passed by the learned Additional Sessions Judge, Gujranwala (Punjab) before whom the bail bond was submitted and due to the non-appearance of Muhammad Saleem at Dadu the proceedings could be conducted at Gujranwala.
6. I hold the view that the reasoning adopted by the learned counsel for the petitioner has to prevail. With respect to submission of bail bond and surety bond following legal and technical steps are taken on the basis of the order of the Court of competent jurisdiction and the legal line of action is chosen and adopted in case of absence of the accused enjoying the concession of bail:--
(a) An accused may be admitted to bail of any category i,e, bail before, arrest or post-arrest bail by the High Court to the satisfaction of the Registrar, Additional Registrar (Judicial), Deputy Registrar (Judicial) or any other Officer working thereof. The bonds are sent to the Court of Session or the Area Magistrate having jurisdiction to try the accused before whom he is directed to appear.
In case of absence of the accused released on bail after compliance and performance of Codal formalities, the proceedings under section 514 of the Code of Criminal Procedure are to be initiated by the Court competent to summon the accused and hold the trial and not by the High Court.
(b) The accused may be admitted to bail by the High Court to the satisfaction of the Court of Session or the Area Magistrate, as the case may be. The accused has to appear before the Court competent to summon him for trial or before whom he has been directed to appear. In case of his failure to appear the relevant Court competent in the matter has to initiate the proceedings under section 514 of the Code of Criminal Procedure and not by the High Court.
(c) If the Court of Session admits any accused to bail to its satisfaction or to the satisfaction of Ilaqa/Duty Magistrate, in case of his absence, the Court competent to summon him who obviously is the trial Court can proceed under section 514 of the Code of Criminal Procedure.
(d) If the Ilaqa Magistrate admits any accused to bail who fails to appear on the fixed date, the same Court can proceed under section 514 of the Code of Criminal Procedure.
7. It has to be recorded that under the proviso II to subsection (1) of section 86 of the Code of Criminal Procedure an accused can be admitted to interim post-arrest bail by the Sessions Judge of the Sessions Division in which the person is arrested, to its satisfaction or to the satisfaction of any subordinate Court making bound the accused to appear before the Court of law in other district of the same Province or any Court of other District of other Province. The point for consideration is as to which Court shall proceed under section 514 of the Code of Criminal Procedure i,e, the Court granting the interim relief or the trial Court where the accused was made bound to appear. My answer is that the trial Court of the other. District can proceed under section 514 of the Code of Criminal Procedure. The reason is that with the grant of the interim relief of bail the Court becomes functus officio and cannot proceed further due to the absence of accused on the fixed date before the trial Court. The bail could not be cancelled by this Court at Gujranwala which could be cancelled by that Court at Dadu (Sindh) and, thus, could proceed further under section 514 of the Code of Criminal Procedure. I would express here that the Court granting the interim relief has to send a covering letter alongwith a certified copy of the relevant order and the bail bond/surety bond to the trial Court intimating about the passing of order, compliance and execution. Thus, the trial Court can proceed under section 514 of the Code of Criminal Procedure. It is known to all us that the High Court and the Court of Session, if not the trial Court or appellate Court, due to absence of the accused/appellant admitted to bail do not initiate the proceedings under section 514, Cr.P.C.
8. In the instant matter the bail bond/surety bond remained under the custody of the learned Additional Sessions Judge, Gujranwala who did send the same to the learned Additional Sessions Judge, Dadu (Sindh) in terms of proviso II to subsection (1) of section 86 of the Code of Criminal Procedure, thus, seems to have got the impression of his jurisdiction to proceed under section 514 of the Code of Criminal Procedure.
9. No doubt before the learned Additional Sessions Judge, Gujranwala, Fida Hussain petitioner (surety) did not take up the stand of his territorial and substantive jurisdiction, yet the legal aspect and the position is that the law can be set in motion if the substantive/procedural/territorial jurisdiction is available to a Court/Authority which in the instant case is lacking so far as the proceedings before the learned Additional Sessions Judge, Gujranwala are concerned. An order without jurisdiction is a nullity in the eyes of law. Had the learned Additional Sessions Judge, Gujranwala sent the papers to the learned trial Court at Dadu (Sindh) the present occasion/episode had not arisen. Legally the said learned trial Court could cancel the interim bail and initiate the proceedings under section 514, of the Code of Criminal Procedure. The only irresistible conclusion which can be drawn from the aforesaid state of affairs, discussion and reasoning is that the impugned order, dated 30-4-1997 passed by the learned Additional Sessions Judge, Gujranwala is without jurisdiction and, thus, coram non judice and inoperative.
10. For what has been said above, I accept this revision petition, set aside the impugned order, dated 30-4-1997 and dismiss the application filed by Abdul Sattar respondent No,2 against Fida Hussain petitioner before the learned Additional Sessions Judge, Gujranwala (Punjab) for initiating the proceedings under section 514 of the Code of Criminal Procedure.
11. However, the complainant of the case may move the learned trial Court for proceeding in the matter in accordance with law. For the proper disposal of the matter, keeping in view the procedural law contained under section 86, Cr.P.C. The learned Sessions Judge, Gujranwala shall make it convenient to send the bail bond/surety bond to the learned Sessions Judge, Dadu (Sindh).