' CHAUDHURY RAHIM DAD KHAN, C. J.-This appeal by leave against the revisional order of the High Court dated 16-3-1978 arises out of the following circumstances:
2. Mohammad Afzal petitioner, who was being prosecuted before the Tehsil Criminal Court for an offence under section 307, P. C. Read with sections 14 and 15 of the Islamic Penal Laws Act, was released on bail by the District Criminal Court, Mirpur vide its order dated 12-2-1978, on his executing a bail bond in the sum of Rs, 20,000 with two sureties in the like amount. Subsequently, on an application being moved by the Public Prosecutor, the District Criminal Court passed an order on 21-2-1978 directing the surrender of the passport No, A B 225469 issued by the Government of Pakistan in favour of the petitioner Mohammad Afzal Khan. The High Court, on revision, held that the order being in nature of a condition the District Court was competent to pass the impugned order. Leave to appeal was granted to consider whether a Court that had enlarged an accused on his execution of a bail bond with surety could subsequently impose a further condition so as to direct the accused to surrender his passport and also direct the retention of that passport in the custody of the Court.
3. It was contended that provisions of section 499, Cr. P. C. Do not provide inclusion of a condition like the one imposed in this case by the District Criminal Court i. e. Taking into the custody of the Court the passport of the appellant. The condition, according to the provisions of section 499, Cr. P.
C. That can be imposed at the time of granting of the bail, would not cover such order. The learned District Court did not refer to the provisions of law under which the impugned order was made by it.
The High Court too while rejecting the Revision Petition did not mention the provisions of law under which such further conditions could be imposed on an accused person already released on bail.
The Additional Advocate-General frankly conceded that under the provisions of Criminal Procedure Code such powers were not available to the District Criminal Court so as to direct the surrender of the passport when appellant had not, in any way, violated the trust reposed in him by that Court.
So the question for determination that is involved in the case and which in fact was also raised in the revision petition, was the validity of the impugned order-in other words whether the District Criminal Court was competent under the provisions of Criminal Procedure Code to take in its custody a document issued to a person by the Government of Pakistan facilitating his travel abroad; particularly when he was already admitted to bail by the District Criminal Court itself? The Court in the instant case which is a non-bailable one-must have presumably considered the following aspects while deciding the question of bail :
(a) the likelihood of the accused absconding if he is released on bail; and
(b) the danger of the offence being continued.
' It was after these considerations, we understand that the accused was admitted to bail on his execution of a bail bond with two sureties for a substantial amount. In spite of all these precautions if there was real apprehension of absconding, the Court could cancel the bail bond and re-commit the person to prison or enhance the amount of the bond but there appears no provision in Criminal Procedure Code that empowers the Court to take possession of an International Passport.
4. It may be useful to consider here what a passport really means. According to the Concise Law Dictionary by P. G. Osborn passport is `The document (in book form) issued by the Foreign Office to responsible persons who contemplate travelling abroad, containing particulars enabling the bearer to be identified, and a request to all concerned to allow the bearer to pass without let or hindrance and to afford him all necessary assistance and protection'. In R v. Braitsford 'd (1), Lord Alverstone, C. J. At page 745 gives description of the passport as follows : "It is a document issued in the name of the sovereign on the responsibility of a Minister of the Crown to a named individual, intended to be presented to the Governments of foreign nations and to be used for that individual's protection as a British subject in foreign countries, and it depends for its validity upon the fact that the Foreign Office in an official document vouches the respectability of the person named."
' It is a matter of common experience that for a person from Mirpur an International Passport is not simply a document authorising travel but it is a most valuable document which entitles its holder to work and earn his livelihood and stay in U. K. Provided his return is within a period of two years and if he fails to re-visit U. K. Within a period of two years he loses the rights of re-entry as a returning resident in that country and thus loses the means of livelihood. Taking possession of the passport by a Criminal Court apart from the fact whether it is authorised to do so or not, otherwise creates greater hardships for such persons as holders of old passport clothed with right of returning residents which is a statutory right granted to old residents. Cognizance of any offence falling under the provisions of Passport Act cannot be taken by any officer without the sanction of the Government. Whether a Court can seize a passport issued by Foreign Office and if so under what provisions of law is a question that we are not called upon to consider in this case particularly when the Additional Advocate-General who represents the State in this case does not support the impugned order of the surrender of the passport.
5. Moreover, the petitioner admittedly did not obtain the passport after his being released on bail.
He was already in possession of this passport but made no attempt to leave the country during the period intervening his release on bail and recovery of the passport. Therefore, it cannot be said that any new event had taken place which suggested likelihood of accused's absconding. In AIR 1949 Cal. 582 it was held that 'a condition cannot be imposed upon the accused not to leave the limits of Town ' L' when he lives in Town 'Q'. This condition of taking into possession the passport would impliedly amount to imposing a condition restricting the movement of the petitioner.
' AIR 1945 Mad. 250 is an authority which deals with a situation where after release of the accused by the High Court subsequently a condition was imposed. It was observed : "If the order granting bail had without any qualifications ordered the release of the accused on bail pending the disposal of the case against them, then in the absence of extraordinary circumstances or a breach of the conditions, the High Court would have no jurisdiction to amend or interfere with the order in such absolute terms."
(I) (1905)2 K B 730 ' The contention of the learned Advocate for the appellant finds further support from PLD 1955 Dacca 84 and PLD 1963 SC (Pak.) 478. In PLD 1955 Dacca 84 the petitioner accused was released on bail of Rs, 2,000 on condition that he would live within Rangpur Municipality. A Division Bench of Dacca High Court interpreting the language of section 499, Cr. P. C. Held that Sessions Judge and District Magistrate had no power whatever to impose any such condition when they granted bail.
'The only condition that can be imposed is to the effect that the person released on bail shall attend at the time and place mentioned in the bail and that would cover an attendance but it would not cover such conditions as that an accused would attend a local police station twice daily'. The point involved in PLD 1963 SC (Pak.) 478 was to the effect 'whether a Criminal Court while granting bail can order the incorporation in the bail bond, the condition other than any of the conditions mentioned in section 499 of the Criminal Procedure Code'. The Supreme Court after considering all the aspects of Chapter 39 of the Criminal Procedure Code and particularly the provision of sections 499, Cr. P. C. And 561-A came to the conclusion that conditions besides those mentioned in section 499 are impliedly barred on the basis of well-known maxim 'expressio unius, exclusio alterius'. It was observed that :- " . . . The connotation of the word 'bail' itself, as understood in law, supports the position adopted by the learned counsel on behalf of the appellants. An accused person is said, at common law, to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted. (Vide Concise Law Dictionary by Osborn, 1927 Edition, page 32). This view receives further strength from a consideration of the provisions of the other sections included in Chapter XXXIX of the Code of Criminal Procedure. Section 497 which relates to cases of bail, when the person concerned is accused of a non-bailable offence, also talks of release of such a person on or at the discretion of the officer or Court concerned, on the execution by him of a bond without sureties, for his appearance as provided in the section. The expression for his appearance is stressed particularly in this context. Section 500 also enacts that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released. Section 502 provides that all or any sureties for the attendance and appearance of a person released on bail, may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants.
' The view contended for on behalf of the appellants is further fortified by reference to the provisions of Chapter XLII of the Code, as to bonds. Section 514 of this Chapter clearly draws a distinction between a bond for an appearance before a Court and other bonds which would include a bond for good behaviour."
' Respectfully agreeing with the learned Judges of the Supreme Court of Pakistan we adopt the same view for the reasoning given therein. The order made by the District Criminal Court, Mirpur on 18-2-1977, taking the passport of the accused in Court's custody, therefore, being contrary to the provisions of section 499, Criminal Procedure Code cannot be maintained in the circumstances of the instant case.
' Hence accepting the appeal the order dated 18-2-1977 is set aside and it is directed that the passport be returned to the accused.