ABDUL SHAKOOR PARACHA, J.---Mst. Raffia Behram were of Sadiq Ali Khan, and Mst. Fozia Behram were of Malik Fida Hussain, petitioners herein, through this Criminal Revision petition under sections 435 and 439, Cr.P.C. Challenge the order, dated 6-5-2002 passed by Judge, Accountability Court, Rawalpindi/Islamabad, whereby he has ordered forfeiture of 1 /2 value of the surety in case of petitioner No. l and 1/5 value in case of petitioner No.2, in favour of the State and directed the petitioners to make payment within one month.
2. Brief facts of the case are that a case vide F.I.R. No.6 of 1999 under sections 409, 109, P.P.C. Read with section 5 of the Prevention of Corruption Act, 1947 at Police State F.I.A., SIU, Islamabad, was registered against Sadiq Ali Khan, ex-Managing Director of Utility Stores Corporation, who is husband of petitioner No. l and brother-in--law of petitioner No.2, and against Messrs Muhammad Ahmad and others of Lahore, wherein it was alleged that Sadiq Ali Khan as Managing Director, Utility Stores Corporation imported burgers, shrimps and nuggets worth Rs.5.215 million from Dubai without any market survey and feasibility study. It was also alleged that limited stock was sold and the rest of the stock perished as a result, the Utility Stores Corporation, sustained loss of Rs.3.65 million.
The case was triable by the Special Judge (Central) under the Criminal Law Amendment Act, 1958.
The bail was allowed by Syed Hakim Irshad, Special Judge, Central, Rawalpindi, vide order, dated 16-11-1999 against surety bonds of Rs.5 lacs with two sureties each in the like amount, which were furnished by the petitioners. Subsequently the case was investigated by the NAB and a Reference under section 18(g) read with section 24 of the NAB Ordinance, 1999 was submitted on the same allegations.
3. Dr. Z. Babar Awan, Advocate, learned counsel for the petitioner contends that the learned Accountability Court has committed a glaring and material irregularity and illegality while passing the impugned judgment which is not sustainable in the eye of law; that the learned Accountability Judge did not initiate proceedings as required under sections 87 and 88 of the Cr.P.C. Before forfeiture of the petitioner's sureties. He further submits that it is now well-settled that if proceedings under sections 87 and 88 have not been taken against an accused, such person cannot be declared as absconder. He placed reliance on 1994 PCr.LJ 1335. Further states that the sureties were given by the petitioners in the Court of Special Judge, Central and not before the Accountability Court, thus the latter has no jurisdiction to order forfeiture of petitioners sureties in the manner it did.
4. Conversely, Mr. Tanveerul Islam, Advocate learned counsel for the respondent argued that there is no denial of the fact that both the sureties Mst. Rafia Behram and Mst. Fauzia Behram are closely related to Sadiq Ali Khan, proclaimed offender. They furnished surety bonds themselves to produce accused before the Court which allowed the bail and in any other Court which would adjudicate the matter in question. The matter was registered with Police Station FIA/SIU, Islamabad and during the investigation N.A.B. Took cognizance of it, probed it and got it investigated from F.I.A. And filed reference in the Court. According to the learned counsel, the facts and circumstances clearly establish that the Accountability Court substituted the first Court which allowed bail and gave judicial remand to the Investigating Agency, and the relevant documents were part of the reference. Therefore, according to the learned counsel, the impugned order is legally sustainable.
5. The admitted facts on the record are that Sadiq Ali Khan accused was allowed bail by Special Judge, Central, Rawalpindi vide order, dated 16-11-1999 against the surety bond of Rs.5 lacs with two sureties, each in the like amount. Mst. Rafia Behram were of Sadiq Ali Khan and Mst. Fauzia Behram, were of Malik Fida Hussain and sister-in-law of Sadiq Ali Khan accused of their own furnished surety bonds in the value of Rs.5 lacs, each wherein they bound down themselves that Sadiq Ali Khan would appear on each and every date of hearing and in case this case is entrusted to any other Court even then the sureties would be bound to produce him there till the case is finally adjudicated. The sureties further bound themselves that even they would be held responsible if he commits default in appearance. These surety bonds were accepted by the Special Judge (Central), Rawalpindi and Sadiq Ali Khan accused was released.
6. It is common ground between the parties that the above mentioned case was not entrusted to the Accountability Court, but on the contrary it was reinvestigated by the NAB and therefore, Reference No.56 of 2001 was filed in the Court under section 18(g) read with section 24 of the NAB Ordinance, 1999. Though the allegations against Sadiq Ali Khan were the same that he in the capacity of Managing Director of Utility Stores Corporation in connivance with his co--accused committed corruption and corrupt practice as defined in section 9 read with section 10 of the NAB Ordinance. Process was issued against accused persons, in pursuance of which Muhammad Iqbal and Asghar Ali, accused No.2 and 3 appeared in Court. Summonses were issued against the remaining accused and notices were also issued to the sureties.
7. The question for determination before this Court in this case is whether the notices could have been issued to the petitioner ladies and the bail bonds could have been forfeited under section 514, Cr.P.C. By the Accountability Court when the petitioners never stood sureties before it nor the case was transferred from the Special Judge Anti-Corruption Central to the Accountability Court.
8. To understand the controversy between the parties, reading of section 514, Cr.P.C. ~ is relevant which is reproduced as under:-- "514. Procedure on forfeiture of bond.---(1) Whenever it is proved to the satisfaction of the Court by which a bond under this Code has been taken, or of the Court of a Magistrate of the First 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 such proof, and may call upon any person bound by such bond to pay the penalty thereof, or to show cause why it should not be paid.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same by issuing a warrant for the attachment and sale of the movable property belonging to such person or his estate if he be dead.
(3) Such warrant may be executed within the local limits of the jurisdiction of the Court which issued it; and it shall authorize the attachment and sale of movable property belonging to such person without such limits, when endorsed District Officer (Revenue) within the local limits of whose jurisdiction such property is found.
(4) If such penalty is not paid and cannot be recovered by such attachment and sale, the person so bound shall be liable, by order of the Court which issued the warrant, to imprisonment in the civil jail for a term which may extend to six months.
(5) The Court may, at its discretion, remit any portion of the penalty mentioned and enforce payment in part only.
(6) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(7) When any person who has furnished security under section 106 or section 118 is convicted of an offence the commission of which constitutes abreach of the conditions of his bond, or of a bond executed in lieu of his bond under section 514-B, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section his surety or sureties, and, if such certified copy 'is so used, the Court shall presume that such offence was committed bay him unless the contrary is proved."
Expression 'surety' is not defined in Cr.P.C. 1860. However, to understand the import of the expression 'surety' section 126 of the Contract Act (IX of 1872) is relevant, which reads as under:-- "126. A 'contract of guarantee' is a contract to perform the promise, discharge the liability, of a third person in case of his default. The person who gives the guarantee is called the 'surety', the person in respect of whose default the guarantee is given is called the 'principal debtor' and the person to whom the guarantee is given is called the 'creditor'. A guarantee may be either oral or written."
The question whether the transferee Court or the Court in which the surety never bound himself to produce the accused and the bail bond could have been forfeited came up for consideration in different High Courts, and we have made survey of the case-law to this effect. In the case reported as Anil Kumar Chatterjee and another v. The Crown (PLD 1954 Dacca 175) it was ruled:-- "The bond which was furnished in the Court of the District Magistrate recited that the petitioners undertook to produce the accused 'before your honour'. Held, that 'before your honour' means before the District Magistrate and that the bond could not be forfeited for failure to produce the accused before the Assistant Sessions Judge."
PLD 1970 Karachi 46) the Court observed:-- "...Bond binding surety to produce accused in Court granting bail and not in any other Court-- Transferee Court, in circumstances, held, not competent to forfeit such bond. "
9. While relying on the judgments of Anil Kumar Chatterjee and another (PLD 1954 Dacca 175) and Haji Abdul Ghani (PLD 1970 Karachi 46) his Lordship Mr. Justice Rustam S. Sidhwa, as my lord then was in this Court, while dealing with this matter in criminal revision under section 439, Cr.P.C. And interpreting section 514, Cr.P.C. In case reported as Haji Muhammad Amin and 3 others v. The State (1986 PCr. LJ 311) observed: "...Federal Shariat Court suspending sentence of two appellants subject to their furnishing bail bonds before trial Court---Sureties/petitioners furnishing bail bonds before Trial Court---- Appellants failing to appear at time of hearing of appeal before Shariat Court--Trial Court proceeding against sureties under section 514, Cr.P.C.--- Revision--- Proceedings under section 514, Cr.P.C., held, should have been taken by Federal Shariat Court and not by trial Court."
Consequently, the order of the trial Court was set aside. .
This principle was followed in the case reported as Muhammad Amanullah v. The State (PLJ 1992 Cr.C. (Lahore) 319) wherein reliance was placed on the above-stated authorities of Karachi and Lahore jurisdiction. However, for the first time section 514, Cr.P.C. Came for consideration before Bombay High Court in case reported as Ballabhdas Motiram Gupta v. Emperor (AIR (30) 1943 Bombay 178) and the Court held that the transferee Court has no jurisdiction to forfeit the bonds.
This judgment of Bombay High Court was distinguished in the case reported as Bhoop Singh Kheri Singh v. The State of Madhya Bharat (AIR 1954) M.B. 8 (Vol. 41, C.N. 7) (Gawalyar Bench) wherein number of cases were considered and it was ruled:-- "Where a security bond is given for attendance and production of 'the accused in a particular Court only, the liability of the surety comes to an end, when the case is transferred to another Court. In such a case the bond cannot be forefeited for failure of the accused to appear before transferee Court. "
10. We are unable to lay hand on a D.B. Judgment. However, in case of Ballabhdas Motiram Gupta (AIR (30) 1943 Bombay 178), which was also considered in the case of Muhammad Amanullah PLD 1992 Lah.347 the Court observed:-- "Where by a bond an accused binds himself to attend in a particular Court, but fails to appear in another Court to which the case is subsequently transferred, it can be said, on the construction of the bond, that the accused has broken the condition of the bond."
For what has been discussed above, we have come to the definite conclusion that the petitioners were not bound to produce the accused before the Accountability Court, or for that matter before the transferee Court where the matter was not at all transferred. In this view of the matter, the impugned order, dated 6-5-2002 passed by the Judge, Accountability Court, Rawalpindi/Islamabad, is illegal.
Therefore, this Criminal Revision petition is accepted and the order, dated 6-5-2002 is set aside.
N.H.Q./R-201/L