1. ORDER MUHAMMAD ROSHAN ESSANI, J.- The appellant Roshan son of Din Muhammad Shaikh filed appeal through Superintendent, Central Prison, Sukkur against the judgment dated 28.4.1988 passed by the learned Ind Additional Sessions Judge, Sukkur, in Sessions Case No. 69 of 19$4 re: State v. Fiyaz Ahmed and others under Sections 307, 34, P.P.C. The appellant/accused was convicted under^r Section 326, P.P.C. And sentenced to suffer R.I. For three years and fine of Rs. 1,000. In default of payment of fine, it was ordered by the Trial Court that he should suffer further R.I. For one month. The appeal was admitted by this Court for regular hearing.
2. The appellant/accused applied for suspension of sentence and grant of bail. The request of the appellant was allowed accordingly by order dated 15.9.1988. One Ghulam Nabi son of Shah Nawaz Pathan had stood surety for the appellant. The appellant/accused jumped the bail on 15.3.1995. The Court issued notice against him but the same always returned unserved due to the non- availability of the appellant/accused.
3. On 22.5.2000 the applicant Engineer Agha Khalid Mujtaba Pathan filed the application. The contents whereof are reproduced hereinbelow in extensor- "Subject: APPLICATION UNDER SECTION 514(6), CR.P.C.REGARDING DISCHARGE OF SURETY DUE TO DEATH.
4. I have honour to submit that my father Ghulam Nabi Pathan son of Shahnawaz Pathan had stood surety in Crime No. 84 of 1983 .P.S. Rohri, Criminal Jail Appeal No. 49 of 1988, before the Honourable High. Court, Sukkur Bench against sum of Rs.25,000 for accused Roshan Shaikh v. State on 26.9.1988.
5. As my father Ghulam Nabi Pathan had died on 18.3.2000 (Photo copy of death certificate is attached). According to provisions of Section 514(6), Cr.P.C. Surety of my father automatically stands discharged.
6. Therefore, it is prayed that your honour may kindly order to Mukhtiarkar, Sukkur for removal of such entry from record of tights of deceased.
7. It will be in the interest of justice."
8. On 25.5.2000 when this matter came up before the Court, following order was passed:- "Mr. Mumtaz Ali Siddiqui, Advocate has filed his Vakalatnama on behalf of Agha Khalid Mujtaba Pathan son of the surety Ghulam Nabi. An application has been filed by Agha Khalid Mujtaba Pathan that his father had stood surety for appellant Roshan in this Criminal Jail Appeal No. 49 of 1988, has expired and, therefore, his property kept as surety may be discharged and entry kept in the revenue record in Village Form VU may be recalled. Issue notice to the A.A.-G. So also the appellant through S.H.O., Rohri Police Station for 2.6.2000."
9. Till today the whereabouts of the appellant/accused are not known and he has failed to appear before this Court.
10. I have heard Mr.- Saleem Akhtar Buriro, learned counsel for the applicant assisted by senior counsel M/s. Shaikh Amanullah and Mumtaz Ali Siddiqui, and Mr. Zawar Hussan Jafferi, learned Additional Advocate- General on behalf of the State. The latter states that the prayer of the applicant is not tenable in law, therefore, application merits no consideration.
11. I have perused the material placed on record. The contention that after the death of the surety, no action could be taken under law is misconceived. The grant of bail to accused and his release on furnishing surety is nothing but change of custody. The accused is placed in the hands of surety after release from the judicial custody. The wisdom behind introducing Section 514, Cr.P.C. By the Legislature was that in case the accused absconds then penalty imposed upon the surety may be recovered from his property. Thus it is a joint liability of person who stood surety and the property.
12. By the death of surety, the amount of penalty is to be recovered .By the Court out of the property for which the bond was executed by him before the Court.
13. Learned counsel for the applicant has placed reliance on the case of Abdul Manan and another v.
14. The State, reported in 1999 PCrlJ 1031. The authority relied upon by the learned counsel for the applicant is of no avail to the applicant as the facts and circumstances of the reported case are quite different from the facts and circumstances of the present case. It will be advantageous to reproduce herein under the observations of the apex Court in case of Abdul Bari v. Malik Amir Jan and 4 others,' reported in PLD 1998 SC 50:- "It is a well-settled proposition of law that the discretionary orders passed by lower Courts or Tribunals cannot be interfered with by this Court ordinarily or in routine, unless it is shown that the discretion is exercised by the Courts or Tribunal below arbitrarily or perversely or against the principles laid down by the superior Courts."
15. It was further observed as under:- "The exercise of discretion by the Courts below on the consideration that respondents had stood sureties of the accused only on humanitarian ground and not for any monetary or other benefits and that there was no allegation by the appellant at any stage that the respondents were instrumental or that they connived in the escape of the accused after release on bail by the Court, cannot be described as arbitrary, fanciful or perverse, so as to call for interference by this Court. My learned brother in his opinion has referred to some of the cases in which this Court declined to interfere with the orders of Courts below directing forfeiture of entire amount of bond executed by surety in that case. The decisions referred by my learned brother lend support to my conclusion 1 that orders of lower Courts passed in proper exercise of their discretion in keeping with the facts and circumstances of the case cannot be interfered with by this Court."
16. Consequently, the listed Miscellaneous Applications Nos. 869 of 2000, and 1366 of 2000 stand dismissed.