There connected revision applications are directed against the orders of Special Judge (Central), Karachi passed under section 514, Cr. P. C. Against the surety and the accused respectively in the case of Muhammad Abbas v. The State under section 161, P. P. C. Read with subsection (2) of section 5 of the Prevention of Corruption Act, 1947.
2. Muhammad Abbas a member of the Police force was convicted by the Special Judge for the above offence and his appeal was dismissed by the High Court on 18-9-1973. He filed petition for special leave to appeal before the Supreme Court and the Supreme Court passed an order dated 1-11-1973 for release of petitioner Muhammad Abbas on bail in the sum of Re. 5,000 to the satisfaction of A. D. M., Karachi. The A. D. M. Merely obtained a surety bond frost petitioner Sadruddin son of Mohkim Din foe attendance of Muhammad Abbas accused before the Supreme Court of Pakistan or as end when required to do so". No personal recognizance bond of the said Muhammad Abbas was directed to be taken by the Superin--tendent, Jail while ordering his release from Jail by the City & A. D. M. Subsequently where leave was refused and the copy of the order of the Supreme Court wee forwarded to the Special Judge (Central), Karachi, he issued notice to Muhammad Abbas and his surety. Muhammad Abbas failed to appear and the notice against the surety was served en his brother as the surety too bad gone underground. The learned Special Judge then for--feited the bond and tried to realise the amount of the bond by attachment of a truck belonging to the surety. The surety then moved this criminal revision application and the accused who had also by that time surrendered moved a similar application on the ground that be had never executed any personal bond when he was released from Jail. The accused was meanwhile ordered to be released by the Supreme Court when his reiew petition was admitted by an order dated 13th August, 1975.
3. The points raised in the course of these revision petitions are firstly that the bail bond having been taken from. The surety by the A. D. M., Karachi for appearance before the Supreme Court the said bond could not have been forfeited by the Special Judge (Central) under section 514, Cr. P. C.
Secondly that since no P. R. Bond had been taken from the accused fn this case the surety could not be held liable as the bond taken from surety alone was defective under the circumstances.
4. Under section 514, Cr.P. C. Whenever it is proved to the satisfaction of the Court by which a bond under this Code had been taken, or of the Court of a Presidency Magistrate or Magistrate of the Ist Class or when the bond is for appearance before a Court, to the satisfaction of such Court that such bond has been forfeited, the Court shall record the grounds of proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why he should not be punished. Thus proceedings in respect of bonds can be taken (I) by the Court by which the bond has been taken or (ii) by the Court of the Magistrate of Ist Class or (iii) by the Supreme Court as the bond for appearance was before that Court. In 1943 Bombay, 178 It has been observed that it is that Court alone where the accused has bound himself to appear which has jurisdiction to forfeit the bond and not the Court to which the case is subsequently transferred. Since bonds for appear-- ance are to be strictly construed ordinarily, it would he only the Supreme Court or the Court of Additional District Magistrate, Karachi that had the Jurisdiction to forfeit the bond. In the present case the Supreme Court had dismissed the petition for leave to appeal and had automatically withdrawn the order granting bail to Muhammad Abbas. The record was then forwarded with this order to the Court of Special Judge for compliance. In effect the Special Judge bad to comply with the order by calling upon the accused to surrender. The Special Judge was thus simply carrying out the directions of the Supreme Court. The case had not been transferred to Court of Special Judge. Nor was the accused required to be tried before the Special Judge as such. Under these circumstances the Special Judge could be presumed to be acting under the directions of the Supreme Court in enforcing `he bond for appearance. In my opinion, therefore, the orders of the Special Judge forfeiting the surety bond could be construed as the orders of the Supreme Court.
5. Regarding the objection, that the person released on bail had not executed a bond, there is a conflict of decisions as to the effect of not taking the P. R. Bond. According to one view the emission to take the bond from the accused will vitiate the bond by the surety and it cannot be enforced against him. But according to another view the contract by the person released on bail and that by the surety under section 499, Cr. P. C. Are independent of each other and that, though the person released on bail may not have signed the bond for his attendance when called upon, the liability of the surety can be enforced, though when there is no personal recognise by the accused person released on bail but bond is only taken from the surety, the accused cannot be directed to pay the penalty or any portion thereof as he can be Guilty of no default. It was observed in the Calcutta case and also later Lahore case that the object of taking the surety is not to obtain money for the State but to prevent crime ; therefore, the liability of the surety is not ca-extensive with that of the principal as in the ordinary case of a surety and hence both the surety and the principal are liable.
In other words the liability of the surety is independent to that of the principal and the surety is liable for the amount. It bee been held that the surety bond can be forfeited even though the personal bond executed by the accused is not forthcoming as the validity of the one does not depend upon the other. Thus the view In Braharnanand Misra v Emperor AIR 1939 All. 682 that it is encumbent under section 499, Cr. P. C. To get a bond executed by the person who is released on bail, and unless that is done there can be no valid bond by a surety alone, is no longer construed as good law. There is a decision of cur own Court in State v. Abdur Rehman PLD 1965 Kar. 90 relying on AIR 1954 Pat. 200 drat under the Criminal Procedure Code there is no question of a principal and the surety. Under it there can be a surety without a principal, in the sense that the surety may undertake to produce a person released on bail, yet the person so released may not have executed any bond for his own appearance. Section 499; contemplates two cases (f) when the accused is to be release on his own bond and the other when the accused is released on bail.
The execution of a bond by the accused is imperative and in the case of the release of the accused on bail, a bond by the surety has to be executed in addition. And if bond is not taken from the accused himself, but only from the surety. And the accused is released on bail, this would be an irregularity, but it would not make the bond executed by the surety invalid. Same view has been taken in 1952 Ajmer 38 that where the personal bond of the accused is not forthcoming the surety fond can sill be forfeited under section 514, Cr. P. C., as the validity of one does not depend upon the other. In 1952 I D A 7311 it wag held that if a surety bond is validly executed and legally enforcible, the liability of the surety arising thereunder undoubtedly can be enforced, irrespective of the fact whether any personal bond had or had not been executed by the person released on bail. The non-execution of the personal bond by the accused in such a case does not affect the binding nature of the surety bond. Same view has been taken in I L R 1946 All. 238, 1940 Lab. 339, 1934 All.
1046 etc.
6. As a result of the above discussion Criminal Revision Application No. 215 filed by Sadruddin surety is dismissed, as the surety bond could be enforced ; while Criminal Revision Application No. 216 filed by Muham--mad Abbas is allowed since in the absence of the personal recognisance there was no bond which could be forfeited.