' Dr. Salim who was accused in a case got registered by his wife vide F.I.R. No,245, dated 3-9-1998 under section 10, Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was granted bail by the learned Additional Sessions Judge. Mst. Jabeen Akhtar, daughter of Umar Khan stood surety by submitting bail bonds on 5-9-1998 for release of the said accused. Abdul Hameed petitioner, cited as witness, signed the bail bonds alongwith Raja Muhammad Akram. After grant of bail and release from the jail, Dr. Salim did not appear before the trial Court. Apart from the fact that proceedings were initiated against the surety namely Mst. Jabeen Akhtar, learned Additional Sessions Judge proceeded to initiate proceedings under section 514, Cr.P.C. Against the witness including Abdul Hameed petitioner. The trial Court issued notices to the petitioner as well as other attesting witness.
The petitioner could not produce the accused-surety, therefore, non-bailable warrants of the petitioner-surety were issued by the trial Court and vide order, dated 25-6-2003 petitioner has been directed to produce the surety.
2. Learned counsel for the petitioner contends that issuance of the notices to the petitioner for production of the accused in the Court to face the trial is in violation of section 514, Cr.P.C. There is no agreement or undertaking on behalf of the petitioner regarding production of the accused before the Court on any date of hearing and therefore, the proceedings conducted by the trial Court is violative of provision of section 126 of the Contract Act. He states that issuing of process and summoning of the petitioner who has attested the surety bond is not warranted under the law and whole proceedings conducted by the trial Court for issuance of notice and summoning the petitioner is illegal.
3. Confronted with the above position, Mr. Babar Bilal, State Counsel concedes that no proceeding under section 514, Cr.P.C. Could have been initiated against the witness who has identified the surety. Further he states that being a law abiding citizen it is the duty of the petitioner who has signed the bail bonds as witness to furnish information regarding whereabouts of the surety namely Mst. Jabeen Akhtar. Learned counsel for the petitioner admits this position and states that he may inform the Court whenever he will find some clue about the said surety.
4. I have heard the learned counsel for the parties and have perused the record. Admitted position on the record is that Mst. Jabeen Akhtar daughter of Umar Khan stood surety by submitting bail bonds on 5-9-1998 for release of the accused Salim. Petitioner was not the surety. He signed the bond as attesting witness. There is no agreement or undertaking on behalf of the petitioner regarding production of the accused before the Court. Witness on the surety bond cannot be termed as surety under section 126 of the Contract Act. In case of Mumtaz Ahmed v. The State 1999 PCr.LJ 1079 wherein, while interpreting the provision of section 514, Cr.P.C. The Peshawar High Court while relying on the case from Azad Jammu and Kashmir as PLD 1972 Azad (J&K) p.42, ruled that, "where accused had jumped bail, it was obligatory on sureties to have either produced the accused or face the consequences. Person attesting bail bond was not responsible for the appearance of accused and as such no proceedings under section 514, Cr.P.C. Could be initiated against him".
5. In view of the above proposition of law and statement of the learned State Counsel this petition succeeds. Proceedings of issuing notice and subsequent proceedings till the final order, dated 25- 6-2003 are declared to be illegal are set aside and are quashed.
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